Gerald C. Mann            AUSTXN 21.TXXAS
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                    Trimble, First Assistant
    iionorableT. 1.5.
    State Superintendent of Publio Instruotion         d?
    Austin, Texas                                             YeI?
   Dear Sir:             Opinion No. O-3123
                         Be: Effect of county passing out of
                 ., "        population bracket olassification
                             by subsequent Federal Census, and
                            ~.applioationto,Gaines County under
                             S. 53.No. 442, Acts 46th Leg.
              We are in receipt of your letter of February 4,
    194l, requesting an opinion by this department as follows:
                                          .L
              **'S.B. No. 442 of the Forty-sixth Legis-
         lature creates county-wide equalization school
         districts a& for tax purposas. All aounties hav-
         ing a population of not more than 2,850 acoord-
         ing to the last preceding Federal Census. . . .*
             "This Aot applies to Gaines County. Follow-
        ing the provisions of the above mentioned statute,
        a county-wide equalization tax has been voted in
        Gaines County. Since that time the County has
        gone out of the population bracket set forth in
        9. B. No. 442. It is the desire of the people
        of Gaines County to know if the tax which was
        voted under the provisions of the above mention-
        ed statute will continue in force, even though
        the Federal Census of 104.0shows a change in
        population, and Gaines County does not come with-
        in the population bracket set up in this A0t.n
              The Act to which you refer, S.B. No. 442, Acts
    Forty-sixth Legislature, Regular Session, Special Laws,
    p. 673, Ch. 34, appears in Vernon's Texas Civil Statutes,
    Pocket Part, as Article 2744e-2. We quote only the first
    section of the Act:
              "Section 1. All counties in this State
         having a population of not less than twenty-seven
         hundred seventy-five (2,775) and not more than
         twney-eight hundred fifty (2,850), according
         to the last preceding:Federal Census, and contain-
         ing a valuation of seven Killion ($7,000,000.00)
         Dollars or more, are hereby created into County-
         wide Equalization cchool Districts for tax pur-
         poses, and each such county sllallhave the county
         unit system of education to the extent specified
         in this Act and may exeroi::ethe taxing power
         conferred on sohool districts by Article 7, Seo-
         tion 3, of the Constitution, to the extent here-
-~

          IIon.   T. M. Trimble, Page   2
     .
                  inafter provided, but such taxing power shall
                  not be exercised until andunless authorized by
     ‘a           a majority of the qualified tax-paying voters
                  residing therein at an election to be held for
                  such purpose as hereinafter provided."
                    Following sections provide ingreater detail for
          the levy, collection and use of the tax, and the duties and
          authority conferred upon various officers "in all suoh coun-
          ties," or 'Iofany county subject to the provisions of this Act."
                    It is clear that the Act is designed as a general
          law by classification end not as a special aot, for if this
          were not true, the Act would be unoonstitutional and could
          not serve as an authorization for any purpose. Article III
          Section 56, Constitution of Texas; Brownfield v. Tongate,
          (T. C. A..19371 109 S. W. (2d) 352; City of Fort Worth v.
          Bobbitt (corn.App. 1931) 36 9. N. (2d) 470; Bexar County
          v. Tynan, (T. C. A.,19341 69 S. W . (2d) 193; I'iatson
                                                               v. Sabine
          Royalty Corporation, (T. C. A. 1936) 120 S. W. (2d) 938. In
          order to have the semblanoe of a general act the last pre-
          oeding Federol Census must necessarily be construed to refer
          to any subsequent Fader:41Census and not-limited to the
          1930 Census or the census in effect when the Act was passed.
          Authorities supra. Aside from this consideration, this
          construction would seem to be the plain meaning of the lan-
          guage employed. See also Article 23, Section 8, R. C. S.
          1925, which reads as follov~s:
                       "The following meaning shall be given to each
                  of the following words, unless a different mean-
                  ing is apparent from the context:

                       ‘1. . .

                       "88. 'Preoeding Federal census' shall be
                  construed to mean the United States Census of
                  date preceding the action in question and eaoh
                  subsequent census as it oo~urs.~
                    The courts in giving this construction to the
          phrase and in passing upon the constitutionality of sim-
          ilar sots have consistently pointed out the necessity of
          so drawing the classification that others may become sub-
          ject to the act when they acquire the same characteristics
          or qualifications upon which the classification is based.
          It would seem that the converse would necessarily follow,
          and if those who were once subject to the act should no
          longer possess the elements of the olassification they they
          are no longer subjeot to the terms of the act.
                       In Bexar County v. Tynan, supra, the court   said:
                       "The act does provide that it is to apply
                  only to counties having more than 290,000 and
                  less than 310,000 inhabitants, accordin:;to the
                  last preceding federal oensus. The last pre-
                  ceding federal census is the census of 1930.
                  Reference to this census discloses that Bexar
                  County is the only county which falls within
                  this class. Therefore Bexar County is the only
.
    *   ’    Hon. T. M. Trimble, Page 3
                     oountg affected by the bill, at least until an-
                     other census is taken, which will be in 1940.”
                         fn Watson v. Sabine Royalty Corporatfon, (C.C.A.
             1938,   writ refused) 120 S. 5. (23) 938, the court had before
             It for consideration Article 274&e, Vernon's Texas Civil
             Statutes, whioh is practically identical in its language
             with S. B. No. 442, except that the population bracket and
             vqluation   is different. The court stated.
    t   ',    ..         "Argument is advanoed that the use of the
                   language 'all counties . . . containing a val-
                   uation of Seventy-five Mllion Dollars (~75,000,000.00)
                   or more, are berebg created' then antithere creates
                   suah counties which at t;ietime the bill was en-
                   aoted had the $75,000,000. valuation, and which
                   also had the required population accoraing to the
                   preceding census. If this construction is plaoed
                   upon the Act, then such would  constitute it a
                   local or special law. And if such, the Act
                   would be unconstitutional.because the require-
                   ments of Sec. 57, drt. 3, Constitution were
                   not complied with in its enactment." tunder-
                   soaring ours)
                       The court refused to give this construction and
             it is apparent that the same language in S. B. No. 442
             oannot be given the effect of establishing a county equol-
             ization district in Gaines County, which had the requisite
             population and valuation when the dct was passed, without
             any reference to subsequent changes in population or valua-
             tion.
                       In Smith v, State, (Tex. Cr. App. 1932) 49 S. W.
             (26) 739, the court had.the following to say with referenos
             to a population bracket classification according to the
             "latest United States oensu8.'t

                           "At the time of the enactment of the stat-
                     ute last mentioned, the latest United States
                     oensus, which was that of 1920, gave McLennan
                     County a population of 82,921. It was the only
                     oounty in the state affected by the provisions
                     of Senate Rill 105. ch. 29. The census of 1930
                     disolosed that M&&an     County haa a population
                     or 98,682.   Hence the countg, by virtue of the
                     increased poF;i;liition,
                                            i:iad
                                                oassed beyond t:leOP-
                     eration of Senate Bill 105, ch. 29, . . ,
                            ”
                                 .   .   .


                            ,‘
                                 Again, the.effort of the Legislature,
                     by am&&~    Chapter 29, Acts of the Forty-first
                     Legislature, First Called Session, after the cen-
                     sus of 1930 disclosed tiietPlcLennanCounty had by
                     virtue of incrensed boaulution ns:scd beyond its
                     operation, to ilola XcLennan County within the
                     purview of the act, manifests, under the deoisions,
     T. M.' Trimblr        Page 4
    evade the aonstitutlonal inhibition, and, under
    the guise of such olassifioation, to enact a
    law designed for MoLennan County alone."
          It is our opinion that when the ~population of
Gaines County,exceeded the maximum population provided in
S. B. No. 442, Aots Forty-sixth Legislature, according
to the 1940 Federal Census, it t!lerebywas excluded from
the classification therein provided and passed from under
the provisions of the Act and has lost any authority it
might have theretofore had by virtue:of the provisions
of said Aot.
          This opinion is not to be construed as an opln-
ion upon the constitutionality of 5. B. No. 442, Acts
Forty-sixth Legislature, Regular Session.
                      ./                                Yours very truly
                                                     AT!?ORMEYGEERALOFTEXAS

                                    .,     ,,’   :
                                                     By/cl/ Cecil C. Cs&aok
                                                            Cecil C. Cammack
                            ,I
                                                                   Asslstant
CCC:J.&jrb


          ATTORNEY GEWRAL                OF w
                                                     APPROVED OPINION COHMITTEE
                                                          BY B%B, Chairman
