Honorable T. R. Wilkinson
County Auditor, Hill County
Rillsboro, Texas
Dear Sir:           Opinion No. O-1748
                    Re: Doesthe county Auditor of Hill Coun-
                         ty, acting as purchasing agent for
                         said county, have full authority un-
                         der the statutes to control all pur-
                         chases made by said county?
        Your request for an opinion on the above-stated ques-
tion has been received by this department.
        Article 1645a-1, Vernon's Civil Statutes, reads as
follows:
        "That in all counties having a population
   of not less than twenty-four thousand, one hundred
   and twenty-five (24,125) nor more than,twentg-four
   thousand, one hundred and fiftg~(24,150), accord-
    ing to the last preceding Federal Census, andem-
   ploglng a County Auditor, said County Auditor, in
   addition to the regular duties performed by him
   as required by law, shall act as Purchasing Agent
   for the county, and such Auditor shall receive asp
   compensation for such additional servicesas Pur;
   chasing Agent the sum of Six Hundred Dollars ($600)
   annually, payable In twelve (12) equal monthly
   installments, such compensation to be in addition
   to that allowed by law for such Auditor, and to be
   .payable out of the General Revenue of such county.
   Provided that in all counties having a population
   of not less than forty-three thousand (43,000)
     and not more than forty-three thousand, one hundred
   ~(43,100)according to the last preceding~'Federal
   Census, and employing a County Auditor, said County
   Auditor, in addition to the regular duties per-
   formed by him as required by law,/shall act as
   Purchasing Agent for the county, and such Auditor
   shall receive as compensation for such addltlonal
   services aS Purchasing Agent the sum of Six Hundred
   Dollars ($600) annually , payable in twelve (12)
   equal monthly installments, such compensation
                                                          .




Hon. T. K. Wilkinson, page 2         O-1748


    to be in addition to that allowed by law for
    such Auditor, and to be payable out of the Gen-
    eral Revenue of such county. Provided, further,
    that in all counties having a opulation in
    excess of sixty-five thousand P65,000) inhabl-
    tants according to thelast preceding Federal
    Census, and having a tax valuation of not 'more
    than Forty Million Dollars ($40,000,000), accord-
    ing to the last approved tax rolls, and contain-
    ing at least two incorporated citl.esor more than
    thirteen thousand, five hundred (13,500) popula-
    tion each, according to the last preceding Fed-
    eral Census, such Auditor shall, in addition to
    his regular duties as Auditor, constitute the
    Purchasing Agent of such county when so directed
    by order of the Commissioners Court of such county,
    and such Auditor shall receive as compensation
    for such additional services as Purchasin Agent
    a sum not to exceed Nine Hundred Dollars 7$900)
    annually, payable in twelve (12) equal monthly
    installments, and such compensation shall be in
    addition to that allowed by law for such Auditor,
    and payable out of the General Revenue of such
    county. As added Acts 1937, 45th Leg: p. 639,
    ch. 313,,para..1; amended Acts 1939, 46th Leg.,
    H. B. #gOg, para. 1."
        According to the last preceding Federal Census, Hill
County had a population of 43,036 inhabitants, thus falling
within the provision of the above-mentioned,statute, namely,
"having a population of not less than forty-three thousand
 43 000 and not more than forty-three'thousand, one hundred
[43:1oo~."
        Hill County Is the only county in the State which,
according to the last Federal Census, had a population within
the limits specified in the provision of the statute above
mentioned.
        S.ection56, Article 3 of the State Constitution reads
in part as follows:
        "The Legislature shall not, except as other-
    wise provided in this Constitution, pass nny local
    or special laws, authorizing,... regulating the
    affairs of counties, cities, towns, wards or school
    districts; ... and In all other cases where a
    general law can be made~applicable, no‘local or
    special law shall be enacted; provided, that no-
    thing herein contained shall be construed to pro-
-3cn.    T.   K. Wilkinson, page 3        O-1748


        hibit the Legislature from passing special laws
        for the preservation of game and fish of this
        State in certain localities."
        In the case of Gray vs. Taylor, 227 U.S. 51, the
Supreme Court of the United States defined a local law as:
            "The phrase 'local law' means primarily, at
        least, a law in fact, if not in form, directed
        only to a specific spot."
        The case of Smith vs. State, 49 S.W. (2d) 739, holds
in effect thet if substantial reason for classifying munici-
palities by population appears, such classification and leg-
islation applicable to,such classification is generally sus-
tained. However, the constitutional prohibition against
special laws cannot be evaded by making laws applicable to a
pretended class, and that a statute classifying municipalities
by population is 'special" if the population does not afford
a fair basis for classification; if the statute merely desig-
nates a single municipality under the guise of classifying by
population; and that a valid classification of municipalities
by population must not exclude other municipalities from
entering such classification on attaining the specified pop-.
ulation.
              We quote from this case as follows:
            "In this state it is the rule that the Leg-
        islature cannot evade the prohibition of the
        Constitution as to special laws bymaking P law
        applicable to a pretended class, which is, in
        fact, no ~1~5s. Clark v. Finley, supra. The
        courts in other jurisdictions have given effect
        to the same principle. Corn.v. Patton, 88 Pa.
        258; Board,of Com'rs of Gwen Counts, et al. v.
        Spangler et al., 159 Ind. 575, 65 N. E. 743.
        In Clerp v. Finley, supra, the Supreme Court
        of our state seid: 'In so far as the courts
        which undertake to define the besls upon which
        the classification must rest hold that the leg-
        islature cannot, by a pretended classification,
        evade a constitutions1 restriction, r?e fully
        concur with them. But if t!zeyhold that a class-
        ification which does not manifest a purpose to
        evade the constitution is not sufficient to sup-
        port a statute as a general law merely because,
        in the court's opinion, the classification 3~sun-
        reasonable, we are not prepared to concur. TO
        what class or classes of persons or ,thirgsa
   Hon. T. K. Wilkinson, page 4          o-1748


        statute should apply is, as a general rule, a leg-
        islative question. When the intent of the legis-
        lature is clear, the policy of the'law is a matter
        which does not concern the courts.' If the class-
        ification of cities or counties is based on popu-
        lation, whether an act is to be regarded as
        special, and whether-its operation is uniform
        throughout the state, depend upon whether popula-
        tion affords a fair basis for the classification
        with reference to t,hematters to which it relates,
        and whether the result it accomplishes is in fact
        a real classification upon that basis, and not a
        designation of a single city or county to which
        alone it shall apply, under the,guise of such
        classification. Parker-Washington Co. v. Kansas
        City, 73 Kan. 722, 85 P. 781."   (Also see the
        cases of Rx Parte Sizemore, 8 S.W. (2d) 134,
        and Randolph v. State, 36 S.W. (2d) 484.)
             The case of Bexar County v. Tynan, et al, 97 S.W. (2d)
     567, holds in effect that the Legislature may, on a proper
     and reasonable classification, enact a general law which at
     the time of its enactment is applicable to only one county,
     provided the application Is not so inflexibly fixed as to
     prevent It ever becoming applioable to other counties, and
     that the Legislature may classify counties on basis of popu-
     lation for purposes of fixing compensation of county and pre-
     cinct officers, but such classification must be based on
     real distinction and must not be an arbitrary device to give
     what is in substance a local or special law, the form of a
~. ;~general law. And the case further holds that the courts, in
     determining whether a law is public, general, special, or
     local, will look to its substance and practical operation,
     rather than to its title, form, phraseology, since otherwise
     a prohibition of the fundamental law against special legisla-
     tion would be nugatory; and to justify placing one county in-
     a very limited and restricted classification by the Leglsla-
     ture, there must be some reasonable relation between the
     situation of counties classified and purposes and objects to
     be obtained, and classification cannot be adopted arbitrarily
     on a ground which has no foundation in difference of situa-
     tion or circumstanCes of counties placed in different classes.
     The Act reducing salaries of officers in counties of over
     two hundred ninety thousand and less than three hundred ten
     thousand population was held unreasonable and arbitrary in
     its classification and void as a special law.
            We quote from the above-mentioned opinion as follows:
            "The rule is that a classification cannot be
Hon. T. K. Wilkinson, page 5          O-1748


    adopted arbitrarily upon a ground which has no
    foundation in difference of situation or circum-
    stances of the municipalities placed in the dif-
    ferent classes. There must be some reasonable re-
    lation between the situation of municipalities class-
    ified and the purposes and the object to be attain-
    ed. There must be something which in some reason-
    able degree accounts for the division into classes."
        We have here an instance of arbrtrary designation,
rather than classification. The above-quoted statute attempts
to regulate the affair~sof Hill County in a manner violative
of Article 3, Section 56 of the Constitution.
        You are respectfully advised that it is the~opinlon of
this department that the provIsions of Article 1645a-1, Ver-
non's Civil Statutes, prescribi    the duties of.auditors in
counties having a population of"$ 3,000 to 43,100 inhabitants,
is a special law, and therefore unconstitutional and void.
        You are therefore advised that the County Auditor of
Hill County has no legal authority to act as Purchasing Agent
for said County.
         We trust that the foregoing fully answers your in-
quiry.
                                 Yours very truly
                               ATTORNEY GENERAL OF TEXAS

                                 By s/Ardell Williams
                                      Ardell Williams
                                            Assistant
AW:pbp:wc

APPROVED DEC 13, 1939
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS
Approved Opinion Committee By s/BWB Chairman
