,




                      THEA-~T~~EY                    GENERAL
                                    OFTEXAS

     GERALD C. MANN                 AUSTINI~.TEXAR

    Ax-r"RNmcY   GSZXUE-I.




           Honorable Walter M, Hilliard
           County Attorney
           Burleson County
           Caldwell, Texas
          Dear Sir:
                                     Opinion No, O-2534
                                     Re: Constitutionality of Senate Bill
                                          470, Acts of the 46th Legislature,
                                          1939 0
                  Your letter of July 29, 1940, requesting~an opinion of
           this Department on the question as is herein stated has been
           received.
                    We quote from your letter as follows:
                    "Is Senate Bill No, 470 of the 46th Legislature
                 unconstitutional because of the following reasons?
                    "The Statute violates Art. 3, Sec. 56, of the
                 Constitution of the State of Texas in that it is a
                 Special Law. The law is not made applicable only to
                 a part of a natural class of people whose characteristics
                 are peculiar to the part, but the law applies to people
                 of different classes and of separate and distinct ctiarac-
                 teristics in that approximatelg~four-fifths of the people
                 affected are residents of an incorporated city and the
                 remaining one-fifth are residents outside of said incor-
                 porated city.
                    "The Statute is unconstitutional and violates The
                 Constitution of the State of Texas in that it is highly
                 discriminatory, The application of the Statutes favors
                 the residents of the incorporated city and discriminates
                 against the residents living outside the limits of said
                 city.
                    "Kindly advise as to the constitutionality of the
                 Statute."
                  Senate Bill No. 470, Acts of the 46th        Legislature, Reg-
           ular Session, 1939, reads as follows:
                                                                   .




Honorable Walter M. Hilllard, Page 2         O-2534


       "SECTION 1, In any independent school district
    having and including within its limits a city or town
    which, acoording to the then latest Federal Census, had
    a population of not fewer than seventeen hundred twenty-
    one 1,721 and not more than seventeen hundred fiftg-
    one t1,7511 inhabitants,and in all independent school
    districts having territory located in as many as three
    (3) counties and containing a county seat town with a
    population of not less than four thousand two hundred
    (4,200) and not more than four thousand two hundred
    seventy-five (4,275) as shown by the last preceding
    or any future Federal Census, the governing body thereof
    shall have the power to levy and cause to be collected
    the annual taxes herein authorized, subject to the follow-
    in provisions:
       "(1) For the maintenance of the public schools therein
    an ad valorem tax not to exceed Ninety One-hundredths
    ($0.90) of a Dollar on the One Hundred ($lOO,OO) Dollars
    valuation of taxable property in the district;
      "(2) For the purchase, construction, repair or-equip-
   ment of publicsfree school buildings within the limits~of--
   such district and the purchase of necessary sites therefor;
   an ad valorem tax not to exceed Sixty One-hundredths ~($0.60)
   of a Dollar on the One Hundred ($100.00) Dollars valuation
   of taxable property in the,district; such tax to be forkthe
   payment of the current interest on and to provide a sink-
   ing fund sufficient to pay the principal of the outstanding
   bonds of such distric,tand any bonds hereafter lawfully
   issued;
      "(3) The amount of maintenance tax together with the
   amount of bond tax of any such district shall never exceed
   One and 50/100 ($1.50) Dollars on the One Hundred ($lOO'.OO)
   Dollars valuation of taxable property within such distr~ict;
   and if the rat,eof bond tax together with the rate of main-
   tenance tax voted or levied in any year in the district
   shall at any time exceed One and 50/100 ($la50) Dollars on
   the One Hundred ($100.00) Dollars valuation, such bond tax
   shall operate to reduce the maintenance tax to the differ-
   ence between~~therate of the bond tax and One and 50/100
   ($1*50) Dollars."
       Section 56, Article 3, of the State Constitution reads
in part as follows:
      "The Legislature shall not, except as otherwise'
   provided in this Constitution, pass any local or special
   laws, authorizing . . . regulating the affairs of coun-
.




    Honorable Walter M. Hllliard, Page 3        O-2534


        ties, cities, towns, wards or school districts; ..-~-
        and in all other cases where a general law can be made
        applicable, no local or special laws shall be enacted;
        provided, that nothing herein contained shall be con-
        strued to prohibit the Legislature from passing special
        laws for the preservation of game and fish in this State
        in certain localities."
           The case of Smith v, State, 49 S-W, (2d) 739, holds in
    effect that if substantial reason for classifying municipali-
    ties by population appears, such classifica%ion and legislation
    applicable to such classification is generally sustained, How
    ever, the constitutional prohibition against special laws can-
    not be evaded by making laws applicable to a pretended class,
    and that a statute classifying municipalities by population is
    "special" if the population does no% afford a fair basis for
    classification; that the statute merely designates a single
    municipality under the guise of classification by population;
    and that a valid classification of municipalities by popula-
    tion must not exclude other municipalities from entering such
    classification or attaining the specified population.
          We quote from this case as follows:
          "In this state it is the rule that the Legislature
       cannot evade the prohibition of the Constitution as to
       special laws by making a law applicable to a pretended
       class, which Is, in fact, no class. 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 Owen County et al. v. Spangler
       et al., 159 Ind. 575, 65 N,E. 743. In Clark v. Finley,
       supra= the Supreme Cour,tof our state said: 'In so far
       as the courts which undertake to define the basis upon
       which the classification must rest hold that the legis-
       lature cannot, by a pretended classification, evade a
       constitutional restriction, we fully concur with them.
       But if they hold that a classification which does not
       manifest a purpose to evade the constitution is not suffi-
       cient to support a statute as e general law merely because,
       "'In the court's opinion, the classification is unreason-
       able, we are not prepared to concur. To what class or
       classes of persons or things a s%a%ute.should apply is,
       as a general rule, a legislative question. When the
       intent of the legislature is clear, the policy of the
       law is a matter which does not concern the courts.'
       If the classification of cities or counties is based
       on population, whether an act is to be regarded as
       special, and whether its operation is uniform throughout
       the state, depend upon whether population affords a fair
Honorable Walter M. Hilllard, Page 4            O-2534


       basis for the classlfica%ion with reference to the matters
       to which it relates, and whether the result it accomplishes
       is in fact .areal cla~sifice%ion 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,
       ;;;k;r-Washington Co. v. Kansas City, 73 Ran. 722, 85 P,

          Also see the cases of Ex 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) 467, holds in effect that the Legislature may on a~proper
and reasonable classifica%ion enact a general law which, at
the time of its enactment, is applicable to only one-.coun%y,
provided the application is not so inflexibly fixed es to ever
prevent it becoming applicable to other counties, and that the
Legislature may classify counties on a basis of population for
purposes of fixing compensation of county and precinct 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 t,hatthe courts in determining whether a law is
public, general, special or local, will look to the substance
and practical operation rather than to its title, form, or
phraseology, since otherwise a prohibition of the.fundemen%al
law against special legislation would be nugatory; and to justify
placing one county in a very limited and restricted classifi-
cation by the Legislature, there must be some reasonable rela-
tion between the situation of the counties classified and pur-
poses and objects to be attained, and classificetion cannot be
adopted arbitrarily on grounds which have no foundation in dif-
ference of situation or circumstances of counties placed in
different;classes, The act reducing salaries of officers in
counties of over 290,000 and less than 310,000 popula,tionwas
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 adopted
       arbitrarily upon a ground which has no foundation in dif-
       ference of situation or circumstances of the municipali-
       ties placed in the different classes, There m*s% be some
       reasonable relation between the situation of municipeli-
       ties classified in the purpose and the object to be at-
       tained. There nest be something a . e which in some ree-
       sonable degree accounts for the division into classes."
       It is apparent that the Legislature intended that the
act under consideration should apply only to two different ln-
Honorable Walter M. Hilllard, Page 5           O-2534


dependent school districts, an act similar to the one consid-
ered here was for this and other reasons condemned by the
Supreme Court in Bexar County v. Tynan, supra.
       Wee have here an instance of arbltrary designation,
rather than classification. The above quoted statute attempts
to regulate the affairs of two independent school districts
in a manner violative of Article 3, Section 56 of the Consti-
tution,
        Therefore, you are respectfully advised that it is the
opinion of this Department that Senate Bill No. 470, Acts of
the 46th Legislature, 1939, is a special law, and therefore,
unconstitutional and void,
       Trusting that the foregoing fully answers your ln-
quiry, we are
                                Yours very truly
                            ATTORNEY GENERAL OF TEXAS

                                By s/Ardell Williams
                                     Ardell Williams
                                     Assistant

AW:AMM:wc

APPROVED AUG 6, 1940
s/Grover Sellers
FIRST ASSISTANT
ATTORNEY GENERAL

Approved Opinion Committee By s/BWB Chairman
