                           November 20, 1948


Hon. S. C. Ratliff                    Opinion      No. v-723
County Attorney
Delta County                          Re:      Constitutionality       of
Cooper, Texas                                  S. 13. 70 (50th Leg.)
                                               and validity      of a Dro-
                                               posed County Home Rule
                                               Charter under Article
                                               IX, Section      3, Texas
                                               Constitution.
Dear Sir:

          You request  an opinion on the constitutional-
ity of Senate Bill  No. 70 of the 50th Legislature     and
the form of a proposed  County Home Rule Charter    for
Delta County.

                Senate Bill    No.   70 (passed      by a 2&d      major-
ity   of    both houses)    reads:

               "Sec. 1. ,The people     of Delta County,
        Texas,   are hereby authorized     to proceed  un-
        der the authority    of Article    IX, Section   3,
        of the Constitution    of the State of Texas,
        for the adoption    of a County Home Rule Char-
        ter.

              "Sec.   2.  Such a County Home Rule Char-
        ter shill    be adopted by a majority   vote of
        the qualified    electors residing   In Delta
        County, Texas."

                 The pertinent    part    of   Section   3 of Article
IX of      the   Constitution    reads:

               "A county having ,a population          of sixty-
        two thousand     (62,000) or more .iccordlng         to
        the then last     FederA    Census mly adopt a
        County Home Rule Charter,        to embrace those
        powers ,ipproprlate     hereto,   within     the specif-
        ic limlt~tions     hereinafter     provided.      It is
        further   provided   that the Legislature,          by a
        favoring    vote of two-thirds      of the total
I   .


        Hon.   S. C. Ratliff      - Page 2     (V-723)


               membership of both the Senate and the House
               of Representat Ives,       may authorize     any county,
               having a population        less than that above
               specified,    to proceed hereunder       for the adop-
               tion of a Charter;       however,   as a condition        for
               such authorization,        It is required     that no-
               tice   of the intent     to seek Legislative        auth-
               ority   hereunder     must be published      In one or
               more newspapers,       to give general     circulation
               in the county affected,         not less than once
               per week for four consecutive          weeks.    . . No
               County Home Rule Charter may he adopted by
               any county save upon a favoring          vote of the
               resident    qualified    electors   of the affected
               County.”

                      You advise that the notice   of intention      to ask
        the Legislature      to pass such law was duly puhlished       in
        accordance     with the above quoted part of Section        3 of Ar-
        ticle   IX.    We are of the opinion  th& said Act is valid
        and that it authorizes      Delta County to proceed     to adopt
        a County Home Rule Charter under, the provisions          of the
        Constitution.

                    Senate Rill     No. 70 does not provide     for any
        procedure   for the preparation      or adoption    of a County Home
        Rule Charter.     The only authority     in that regard is con-
        tained   in Acts 1933, 43rd Legislature,        1st Called    Session,
        p. 239, ch. 91.      (Article   1606a, V. C. S.)      Section   1 and
        the p’ertinent   part of Section    2 of said Article      reads:

                      “The purpose of this Act is to provide
               an enabling     Act under the recent       Constitu-
               tlonil    Jmendment adopted and known as Section
               3 of Article      9 of the Consti,tutlon     of the
               State of Texds,       hereinafter    sometimes referred
               to as ’the <Amendment,) in order that the B-
               ties                      the provision    of such arti-
               cle m.iy adopt,      upon a vote of the quklifled
               resident    electors    of such countlec,     a Home
               Rule Charter      in accordance    with the terms and
               provisions     of such portion     of the Constitution.”
               (Emphasis added throughout         this @pinion)

                        “This Act shall apply to anv qualified
               county     of Texas, desiring to adopt a Home Rule
Hon.   S. C. Ratllff      - Page 3      (V-723)


       Charter  under the      powers,  and within the llmi-
       tations,  expressed      by Section  3 of .Artlcle IX
       of the Constitution       of Texas.  . . .I’

             Failure   of said    Senate Bill     No. 70 to provide
any procedure      or adopt the procedure       under the enabling
act for preparation       or adoption    of a County Home Rule
Charter   presents    the further    question:     Does the language
“counties    coming within    the provisions”      and “This 4ct
shall   apply to any qualified       county” in the enabling      act
include   counties    which came within      the provisions   of the
law or to any county which may become qualified             to adopt
a Home Rule Charter after        the law was passed?

             Morgan v. Potter,    (Wls. Sup.) 298 N. W. 763,
involved    the construction   of a statute  which reads:

               “Any teacher     coming under the provis-
       ions of this      section    (42.55)who has attained
       or shall    attain    the age of 70 years shall be
       retired    by the managing body of the schools
       at the end of the school        year in which said
       teacher    has reached the age of seventy.”

             Construing     th;rt   statute,   the Court     said:

             “We consider   that in Its opening      phrase,
        ‘any teacher  coming’ under this    section     (42.55),
       the word ‘coming’ means ‘who is’,       whether the
       teacher   was under Sec. 42.55 when Ch. 160 was
       enacted,   or came under the section      theredfter.
       The word ‘coming’    by Implication   covers those
       tedchers.who   had come under Sec. 42.55 before
       par. (k) was enacted,    and those #who should
                                              . II

                We Ire of the opinion         thAt the language:        ” in
order that counties         coming within       the provisions       of such
article,       may Adopt, etc.”      In Section     1, and the language:
“ihis     fi,ct shdll apply to any qualified           county of Texas,
desiring       to Adopt d Home Rule Ch.*rter under the powers,
and within       the limitations       expressed     by Section    3 of ,Ar-
title     IX of the Constitution         of Texas;     lnd the people of
any qualified        county who miy desire         to move for the ddop-
tion of a county charter,            under such Constitutional           pro-
-1: :;I.w.s, shill1 proceed,      etc.,”    (in Article      1606a, V.C.S.1
is sufficient        to briny    Delta County within         the provisions
of that drticle,         so tht    It may proceed        to adopt J. County
Rome Rule Ch.irter under the procedure                therein    provided,
Hon.    S. C. Ratliff      - Page 4           (V-723)



under    the   authority     given     in Senate        Bill   No. 70.

             The validity   of a County Home Rule Charter is
controlled    by numerous restrictions     including   those con-
tained    in Section   3 of Article   IX of the Constitution,    a
pertinent    part of which is:

                “(2)    . . . . It Is expressly      forbidden
        that any such charter            may inconsonantly      af-
        fect the operation          of the General Laws of
        the State relating          to the judicial,       tax, fis-
        Cdl, educational,          police,   highday and health
        systems,      or any other depdrtment          of th,e
        State’s      superior     government.     Nothing herein
        contAined       shall   be deemed to authorize         the
        adoption      of a Charter provision         inimical     to
        or inconsistent         with the sovereignty        and es-
        tablished       public    policies   of this State,       and
        no provision        having such vice shall have
        validity      as against      the State.     No Charter
        provision      may operate       to impair the exemp-
        tion of homesteads          as established      by this
        Constitution       and the Statutes       relating     there-
        to.”

             The amendment is a most unusual one, involving,
as it does,     a potential    change in every county of the
State in respect      to its governmental      affairs.     It is un-
usual in length and scope.           Its phrasing    and meticulous
limitations     are extraordinary,      and furthermore     it con-
t ains some Apparently      conflicting    provisions     . Because
of its length      it will  not be here quoted,        but specific
portions    thereof   w.ill be set out along with the discus-
sion.

                PerhAps ths most clemsntary        and important       ruls
of construction         of written  instruments--*whether         constitu-
tion,    st:,ltute    or contract  whatsoever--is      that   the inten-
tion of I:~w rr.iker of the instrument           is the re-:l meaning
thereof.        “:11 other rules are subordinate         tc\ thi,s and Are
m,zrely so miny Aids to the inquirer             in his quest for the
intention       of’ the maker.

              tie shill first         rive     consideration  to the     over-
all.,   primdry pu-pose    of        the     amendment, to discover      the
Hon.   S. C. Ratliff       - Page 5'    (V-723)



evil  sought    to     be corrected    and the    means adopted   for
accomplishing        it.

            Subsection    (1) yields   the key to the inquiry,
that is, to afford     to the county the "highest        degree of
JOCL1 self -vr
             (LO e e               Is c-tent        with the a-
ficient  conduct    of those affairs     bv necessity    lodged a
the nation   and the state."

             The instrument      should be construed         ds a whole,
including    the respective      parts,    separ+tely     and collec-
tively,    each in the light      of the other,       ;Ind likewise    =>ny
or all of them in the light          of other constitutional          pro-
visions    having any bezing        upon the subject.         Nhere
there are two constructions          possible,     one of which would
mike inv.Lid     or meanineless      the amendment, or lead to an
absurd result,     ;lnd another which .would give life            and
meining to the Amendment and attribute              to each p.art a
meaning consistent      with the other parts so that dll may
stdnd, the first      construction      will   be abandoned as in-
admissible     and the second one Adopted as the proper one
to indicate     the indispensable       essential     of intention.
Pierson    v. Stste,   177 S. W. (2d) "75; State v. Gillette's
Est.,   10 S. W. (2d) 984; Koy v. Schneider,              221 S. W. 8,?0;
Ex Parte Jnderson,       81 S. rl. 973; Warren v. Shuman, 5 Tex.
442.

             Similarly,     where a statute   or constitution      is
fAirly   cspdble    of two constructions,     each of which would
leave doutt lrd uncertainty        and possible   public     harm,
th:it construction      which would leave the lesser       vices   and
dangers    should he adopted ds more nearly        indicative    ,of
the real    intention    of the framers    of the instrument.
Thornils v. Creager      107 S. d. (2d) 705; Orndorff        v. State,
108 S. d. (2d) 206.

             Another familiar      rule of construction     IS thdt
the  Iffirmdtive      grdnt of pi power carries    with it by ne-
cessary    implication     of law the further    power to do ~11
things necessary,        or reasonably  Jnd directly    helpful   in
carrying    out the primary purpose.       Ju'ilson v. Rbilene    In-
dependent     School District,     190 S. W. (2d) 406.

             In this process   of construction,           literalism
will  yield   to the spirit   of a constitution           or statute
when the latter     more accurately   sho+s the          real purpose
or intention    of its makers.
11.2   Hon.   s.   c.   Rat.liff   - Page 6    (V-723)



                    In consonrnce      with these indisputable       rules
       of construction      pertinent     to the situation,     we arc of
       the opinion     tht    the dominant purpose of the amendment
       was to afford      to the counties     the greatest    latitude     o
       lOCal  Control     Of their    COUntY  9ffdirS.   consistent    Wit:
       the suverior     rights    and vowers of the State.

                     If literalism       should control        our interpreta-
       tion of the emphatic prohibitions               in paragraph        (2) of
       the amendment, above quoted,            no Home Rule nmandment
       could be adopted at all,           for the State in Its sover-
       eign capacity      has always promulgated            laws for the con-
       trol    of county affliirs      throughout      the State.        Literal-
       ism, ho:dever,     must yield      to the purpose of the amend-
       ment . Literallsm        would forbid       the adoption        of any
       charter    that would abandon the County Commissioners’
       Court ds it now exists          and substitute        therefor     a gov-
       erning body otherwise          constituted.        Yet these are the
       precise    things    expressly     authorized      by the amendment.
       The same comment may be made with respect                   to the power
       conferred     by pdrdgraph      c. of Subdivision          (3) authoriz-
       ing the governing        body established         by any county to
       “create,    consolidate      or abolish      any office       or depart-
       ment, whether created          by other provisions          of the Con-
       stitution     or by statute,       define    the duties       thereof,
       fix~ the. compensation       for the service         therein,     make
       the same elective        or appointlve,        and prescribe       the
       time, qualifications         and conditions        for tenure in any
       such office.”

                     The true rule deducible,         therefore,      is that
       the amendment authorizes.any         county adopting         1 Home
       Rule Charter to “provide        for ;I governing       body” other
       thin the Commissioners’        Court and incidentally            to make
       all provisions      necessary   or directly       helpful    to that
       major purpose,      And the meticulous       limitLti.ons,       quali-
       fications,     dna exceptions~contained          in the amendment
       attest     the prohibition    to take any step that would af-
       fect the State’s       powers of government other than those
       expressly     or by necessary     implication      conferred       on the
       county.

                   Inconsistencies,    contr.idictions,  and absurd-
       ities  are always to he avoided       if possible in construc-
       tion.   Holman v, nrOddWdy     Improvement Company, 330 S.W.
       15; Cramer v. Sheppard       167 S.N. (2d) 147; Carpenter
       v. Shcpp:ird,   145 S.W. f2d) 562; San fintonio     Etc. Ry. v.
       State,  75 2.W. (2d) 680; Ex Parte Cooks, 135 S.4. 139.
                                                                                     _   13 :J
Hon.    S. C. Ratliff       - P’age 7’ (V-723)



             Applying  these rules           of construction,     we point
out    some vices  in the proposed           charter,   as follows:

          Section   9 contains   matter which we think is for-
bidden by the language     of Paragraph (2) of Subdivision    3
of the amendment.    We refer   to the following portion   of
Charter Section   9, to-wit:

             "The (Manager) may authorize    an offi-
       cer or department   hedid to appoint  and re-
       move subordinates   under his respective
       supervision."

            It is contrary    to the long established           policy
of this State to permit dn officer           of the State to dele-
gate his official     power, to Another.       No .duthorities,are
needed for d proposition       so elementary.       The last para-
graph of Section     9 is also of doubtful        validity    for the
same redson.      In other words,     the charter     makes the Com-
mission  d board of officers       clothed    with constitutional
dnd statutory     powers generally     to control     and manage
county affairs,     while this portion       of Section    9, in some
measure at least,     would delegate      the power vested       in the
Commission to its appointee,        the County Manager.

                .Section    13 is invalid          wherein   it attempts     to
abol .ish the office          of County T&x Assessor            and Collector
and to estrblish           in lieu thereof          a County Manager as the
head of the finance            department with the powers of County
Tax 4ssessor          and Collector.         The office       of assessor    and
collector        of taxes is a constitutional               one (Sec.     14, Art.
VIII)    and its functions           are not those kiith respect            to
county affairs          %llone, hut involve          essential     St-;lte func-
tions    4s wsll.         Indeed,    the sum tot.21 of such officer's
fnncti~ons ,rt:fect the enti r*e Cin.inc5:\l r:cheme o!' fcvern-,
Tent.       fi county could not .Iholish             tbc office     nT r:ssessor-
Collector        !qithout    serious     interference       with the superior
Stite     t:overnment:il      policies.        .:'he St,lte m:~y not be de-
prived      of it:: sovereign         right    to mike 1.1~s for its own
government.          The Amerriment is to imp1cm6-rlt county controls
of county .Afi.~iirs,         not to surrender          functi.ons    3nd prerog.1
tives     to dnother.

               Section   23 is invalid    insof:ir    .LS it attempts      to
Ybolish    th- office     of District   Clerk for the reasons           just
given,    nor is it within      the authority      of Section    3, Sub-
division      (3)~ authorizing     the consolidation        or abolishing
II' 4r-,y office     or department.    The offices      and dep:artments
there contemnl.ated       are those offices       and departments      hav-
.     .

114
          Hon. S.    C. Ratllff    - Page 8         (V-723)



          ing to do with county affairs               only.     This     does     not   in-
          clude the District  Clerk.

                      Section   26 Is Invalid.       The office   of Sheriff
          is a constitutional     office,   elective    for a definite     term
          of two years.      His duties   and functions     are not wholly
          with respect    to county affairs,      so that the public     policy
          of the State with respect       to his selection      and duties    may
          not be usurped by any individual         county.

                      Section   27, abolishing    the offices    of Justices
          of the Peace and Constables,        is invalid   for reasons    al-
          ready given with respect      to other officers,     and for the
          further  reason th.at these officers       are concerned    very re-
          motely,  If at Al,     with county affairs.       They have t,o do
          for the most part with state affairs          under the police
          power, which field     Is one of the principal      prerogatives
          of State sovereignty.

                      We need not discuss         the various   sections   of the
          proposed   charter,   seriatim,     but the rules of construction
          accompanied    by the Illustrations        of vice in those in-
          stances   pointed   out will    suffice,    we think,    as a guide in
          the preparation     of a charter      for submission     to the people
          of ijelta County.

                        However, we call    your attention     to the first
          paragraph of Section      3 of the proposed      charter   declaring
          “except    as otherwise   provided     in this charter,   311 Dower%
          of the county shall      be vested     in a Commission of five mem-
          hers,   elected   from the county at large       in the manner here-
          after   provided,    who shall   serve   without  compensation.      . .‘I

                        We entertain     grave doubts as to t,he right       of the
          county to adopt a charter          which would vest “all     powers of
          the county” in a commission.            The Commissioners’    Court Is
          a constl.tutlonal      instrument~allty    of government.     Under the
          established     policy    of the State from its earllest        days that
          body has been clothed         with certain   powers which are essen-
          tlal.ly   the sovereign      powers of the State     as contradlstin-
          &shed      from matters      of rounty affairs.     owe have in mind
          especially     such powers as the following:

                       Dividing    the     county     into    election        precincts;

                        Ordering   local     option      elections       in     regulation
                of   liquor;
.


    Hon.    S. C. Ratllff'-          Page 9       (V-723')



                   Canvassing        returns      of   elections    of   State
            officers;

                   Appointing  a health officer  to act                  under
            direction    of the State Health Officer;

            Acting     as Board of      Equalization          in fixing
            values     of land for      purposes    of       State taxation;

                  Approving      reports       and official        bonds   of
            county officers.

                    Such a power to exercise            "all    powers of the
    county"     b y the five-member         agency set up in the proposed
    charter,      certainly      is not expressly        conferred      by the
    amendment; neither           is is impliedly        conferred      by the lan-
    guage of subsection            (3)a.   providing:        "In any event,        In
    addition      to the powers and duties            provided      by any such
    charter,      such governing         body shall exercise         all powers,
    and discharge         all duties      which,    In the absence       of the
    provisions       hereof,     would devolve       by law on County Com-
    missioners       and County Commissioners'             Courts."      The sig-
    nificant      phrase Jn the absm                f the nr visions        hereof ,
    forbids     such imnlication.           BYetEe term "tohe nrovisions
    hereof,"      is me&t a.11 the D bvisi            ns of the am-
    including       the many and mandztory zestrictions.                 prohibl-
    tlons,    limitations        and qualifications.            The language
    immediately        following      Is highly     important     and bespeaks
    plainly     the limited        extent and scope of the powers con-
    templated.         It is as follows:          l'Further,     any such char-
    ter may provide          for the organizatton,           re-organization,
    establishment         and administration         of the government         of
    the county,        including      the control      and regulation       of the
    performsnce        of and the compensation           for all duties        re-
    aulred    in the conduct          of the countv aff~airg,          subject    to
    the limitations          herein    provided."

                     We note   the    following        among the    many express
    limitations:

                  . May adopt '4 county home rule charter,
           ti ambrace those powers appropriate            hereto,
           within    the specific    limitations    hereinafter
           provided.    . .     It is cxpresslv     forbidden     that
           any such charter       may inconsonantly      affect
           the operation     of the general      laws of the
           State relating      to the judicial,      tax, fiscal,
Hon.   S. C. Ratllff     - Page 10     (V-723)



       educational,      police,    highway and health     system,
       or any other department          of the State’s    super-
       ior government.         Nothing herein contained
       shall be deemed to authorize           the adoption    of
       a charter     provlsian    inimical    to or Inconsistent
       with the sovereignty         and established    public
       policies     of this State,      and no provision    having
       such vice shall       have validity     as against   the
       State.   . . .I’ Art. IX, Sec. 3(2).
       I, . . . Other than as herein provided,     no such
       charter    shall   provide  for altering the jurls-
       diction    or procedure    of any court. . . .“lbid
       subsection     (3)b.

              “Such charter      may authorize    the governing
       body . . . to prescribe         the schedule    of fees
       to be charged by the officers           of the county
             . provided,     however,    no fee for a speci-
       hldd service      shall,exceed     in amount the fee
       fixed by General Law for that same service.              .    .
       may prescribe      the qualifications      for services,
       provided     the standards     therefor   be not lower
       than those fixed        by the General Laws of the
       State.”    ibid subsection       (5)
       I1. . . No such transfer       or yielding    of func-
       tions   (of State agencies)       may be effected,      un-
       less the proposal     Is submitted      to a vote of
       the people,    and, unless     otherwise    provided    by
       a two-thirds    vote of the total       membership of
       each House of the Legislature,           . . . particu-
       larly,    it is provided    that the power to create
       funded Indebtedness      and to levy taxes in sup-
       port thereof    may be exercised       only by such
       procedures,    and within    such limits,     as now are,
       or hereafter     may be/provided       by law to con-
       trol   such appropriate     other governmental       agen-
       cies were they to be independently           administer-
       ea. . . .‘I    ibid subsection      (6)a.
             A reading     of the amendment will     show that It
contains    more prohibitions,       limitations,   qualifications,
exceptions     and restrictions      than it does grants of power.
Indeed,    Section   (1) declaring      the purpose of the Act to
be a grant of the “highest          degree of local   self-govern-
ment which is consistent         with the efficient     conduct of
-.   .


         Hon. S. C. Ratliff       - Page 11      (V-723)



         those affairs      by necessity      lodged In the Nation and the
         State,"    Is In truth the sole affirmative             grant of power,
         and be it remembered this grant is limited                 to "local
         self-government."         On the whole the amendment is more
         concerned    with the preservation          of the over-all       suprem-
         acy of the State in matters concerning               State affairs.
         Under every test It will         appear that an effort          to abol-
         ish the Commissioners'         Court would be in disregard            of
         these numerous prohibitions            and limitations      and there-
         fore "inimical      to, and inconsistent        with the sovereign-
         ty and established        public   policies    of this State."         The
         amendment should not be construed             as a complete       divorce-
         ment of county and state         in the matter of governmental
         powers.     The Commissioners'         Court of the county has not
         been expressly      abolished    by the amendment in any event,
         and such abolishment        will   not be implied.         Repeals    by
         Implication     are not     favored.      Any other construction
         would bring chaos In the administration                of the law.

                     This discussion     does not exhaust the large
         problems raised   by Article      IX, Section    3, its supporting
         Statutes   , and the proposed      charter.     To discuss    each
         line and phrase would mke this opinion            too long.     Prob-
         lem and fact situations      will   arise whtch cannot be anti-
         cipated  or properly    decided    in adv:tnce.     If calied   upon
         to p;iss thereon,   they will     be treated    separately    as they
         arise.


                                         SUMMARY


                     H. B. No. 70 of the 50th Legislature
                is d valid ,Act and authorizes Delta County
                to adopt d County Home Rule Charter.     Mor-
                gan v. Potter,  298 N. W. 763.

                       The Nanager provided        in such a Char-
                ter may not be authorized          to appoint    and
                remove subordinate        officers    as such would
                be an unlawful       delegation    of power by the
                governing     body.     The Charter    my not abol-
                ish the office       of County Tax Assessor       and
                Collector,     District     Clerk,   Sheriff,   Zus-
                tice   of t!le Peace, Constable,        or the Com-
                missioners'     Court,    since each of these is
                a State functionary         and exercises     powers
Hon.    S. Ci Ratliff    - Page 12    (V-723)



        and is charged with duties        of state-wide
        iniportance   as contradistinguished       from
        county affairs,    and such,abolishment
        would be contrary     to the exprs~ss prohlbl-
        tlons   of the amendment.

                                       Yours     very   truly,

                                  ATTORNEYGEmAL            OF TEXAS




                                       W. T. Williams




                                       Assist&
0S:wb




                                      $TTJl&
                                       ATTORNEYGENERAL
