                                OF    TEXAS

                            AUSTIN.   TUCXAS      78711




                                February     12, 1973



Honorable Jim Wallace                               Opinion No.   H-   8
Chairman,   Intergovernmental
Relations Committee                                 Re:   Whether Senate Bill 13
1114 Texas Avenue Bldg.                                   is a general bill and
Houston,  Texas    77002                                  therefore  constitutional
                                                          under Article   3, Section
                                                          56 of the Texas Consti-
Dear   Senator   Wallace:                                 tution.

       You have submitted to us a copy of S. B.. 13 and have asked our
opinion as to (1) whether the population spread included in the bill is
“such as would create a substantial class to be covered by this legis-
lation? ” and (2) whether the bill would be constitutional   under Article           3,
Section 56 of the Constitution of Texas “if the Legislature    determined
that a reasonable  basis existed for the classification.   ”

       Your letter concludes with the statement that         such clas.sifications
are used in many bills and “these questions will be          of great urgency to
our committee    and the Legislature as a whole this        session. ” For t,his
reason our answer to your question will, perhaps,           be more compre-
hensive than it would otherwise need to be.

       Article  3, Section 56, is not a general prohibition of speciirl or
local laws.    Rather it lists some 30 categories  in which there shall
be no such law including “all other cases where a general, law can be
made applicable,    no local or special law shall be enacted. ”

        It provides    specifically   that there shall be no local or special law
“regulating    the affairs of counties,      cities, towns, wards or school
districts,   ” “relating to ferries     or bridges.   . . . ” Therefore,   your
proposed S. B. 13, dealing as it does with the maintenance          of safe bridges
by municipal corporations,          would fall within the prohibition and would be
invalid if classified     as a local or special law.




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IHonorable Jim Wallace,   page 2,   (H-8)




       Population classifications are not automatically    void.  However,     if
the court concludes that the classification   is so defined as to limit
application of the statute to OIE city only,then the law will be held a
special one and unconstitutional.

       This is best exemplified  by City of Fort Worth V. Bobbitt, 121
Tex. 14, 36 S. W. 2d 470 (1931).   As first enacted, the statute in question
applied to cities “having not less than 106, 000 inhabitants  and not more
than 110, 000 inhabitants, according to the United States Census of 1920
. . . . ” This was held by the Supreme Court to apply only to the City
of Fort Worth, the only city in the State which would ever be included
within the terms of the Act.

       The Legislature  then amended the act to make it applicable to
cities “having a population of more than 100, 000 inhabitants according
to the last preceding United States census. ” Holding this legislation  to
be a general law and valid the Texas Commission     of Appeals in City
of Fort Worth V. Bobbitt, 121 Tex. 14, 41 S. W. 2d 228 (1931) said:

                       “From the statement we have made, it is
              evident that the new law is not subject to the objection
              that it is a local or special law in violation of section
              56, of article 3 of our State Constitution,   as was the
              old law. ” (41’s. W. 2d at 229)

        But not for long was it held that, merely because the bracket was
open-ended     and that more than one city might be included in the future,
the cl&ssification   was constitutional.    In Bexar County v. Tyman,. 128
Tex. 223, 97 S. W. 2d 467 (1936) the statute applied to counties in which the
population was as much as 290,000        and less than 310,000 according to
the last preceding federal census.       Bexar County was the only one within
the classification   but the Court held that this alone did not make the
statute a special or local law.     However,    the Court did limit the Legis-
lature’s   right to classify according to population,    stating:

                       II. . . Yet in doing so the classification must
              be based upon a real distinction,    and must hot be
              arbitrary    or a device to give what is in substance a
              local or special law the form of a general law. . . . ”
              (97 S. W. 2d at 470)




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,


    Honorable   Jim Wallace,    page 3,     (H-8)




           The court quoted from the decision of the Supreme      Court of
    Arkansas   in Leonard v. Road Maintenance      Dist. No. 1. 187 Ark. 599,
    61 S. W. 2d 70 (1933) as to the factors required to justify a classification:

                            “The rule is that a classification      cannot be
                   adopted arbitrarily   upon a ground :which has no
                   foundation in differences    of situation or circumstances
                   of the municipalities   placed in the different classes.
                   There must be some reasonable          relation between the
                   situation of municipalities    classified    and the purposes
                   and objects to be attained.     There must be something
                   . . . which in some reasonable        degree accounts for
                   the division into classes.   ”

          More recently Justice Steakley,  speaking for a unanimous Supreme
    Court in Railroad Commission   of Texas v. Miller,  434 S. W1’2d.670
    (Tex. 1968) stated:

                          ‘A classification    is reasonable    if it is based
                   on a real and substantial difference      having relationship
                   to the subject in the particular    enactment and operates
                   equally on’,all%ithin   .the same ‘Yclass; ”

           In Smith v. Davis, .426 S. W. 2d 827 (Tex. 1968) the cou.rt used
    similar language in defining what is a reasonable          classification.    It
    recognized    the presumption      that a statute is valid and that the Legis-
    lature had not acted unreasonably        or arbitrarily.    It also recognized
    the possibility   of differing opinions as to reasonableness         and that such
    differences    would not be sufficient to declare legislation       arbitrary   or
    unreasonable.      “The wisdom or expedience of the law is the Legislature’s
    prerogative,    not ours.    . . ” (426 S. W. 2d at 831).    See also ~County of.
    Cameron v. Wilson,        160 Tex. 25. 326 S. W. Zd 162 (1959).

           In each of the foregoing cases it is important to note that the court,
    in determining whether or not a classification   was reasonable,   discussed
    the facts concerning the classification.

          Examples    of some   classifications     which have been held unreasonable
    might be helpful.




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Honorable   Jim Wallace,    page 4,    (H-8)




       In Anderson v. Wood, 137 Tex. 201, 252 S. W. 2d 1084 (1941). the
statute having to do with employment   of traffic officers applied to all
counties with a population in excess of 125, 000 but excluded those not
less than 195, 000 nor more than 205, 000.   The only county falling
in that category was Tarrant County.    The Court was unable to find
any reason why Tarrant County should be treated differently      and
held this to be a special law.

       In Rodrivuez v. Gonzales,      148 Tex. 537, 227 S. W. 2d 791 (1950),
the act having to do with collection     of delinquent taxes was made appli-
cable only to counties boarding the Rio Grande River; to tracts in excess
of 1,000 acres owned by ten or more persons and with title emanating
from a grant of the King of Spain.       The Court was unable to find any
reasonable   bas is for the classification   and held it to be a special law.

       San Antonio Retail Grocers   v. Laff-.       156 Tex. 574, 297 S. W. 2d
813 (1957) involved the Sales Limitation Act (Article     llllm, Vernon’s
Texas Penal Code) which was limited in its application to grocers.
Reviewing the facts which showed the effect of the act would be to give
an advantage to some retailers    over others,   the Court concluded that
there was no reasonable   basis for the classification.

       Smith v. Decker,  158 Tex. 416, 312 S. W. 632 (1958) involved a
bail bond law applicable to any county containing a city of 350,000   or
more or to a county having a city of not less than 73,000   nor more than
100,000 population.   The Court could see no basis for excluding from the act
counties having cities of 100, 000 to 349,999 inhabitants and held it to
be a special act.

       Whether or not a classification    is reasonable  is a decision which
would have to be made, in the first instance,      by the Legislature    and will
be determined,    secondly,  by a court if and when the constitutionality       of
the statute is raised.   Whether or not a classification     is reasonable    is
a determination   based on questions of fact and we do not conceive it
to be one within our jurisdiction    in advising the Legislature    as to the
law.




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I




        Honorable   Jim Wallace,        page 5,   (H-8)




               We would suggest that, with particular       reference   to S. B. 13, a
        court will see that the only city presently falling within the classification
        is San Antonio and will ask why San Antonio and any other city which may
        in the future fall within the classification    should be treated differently
        as to its liability for the maintenance     of safe bridges.   It will ask
        questions such as:     is there any basis for saying that cities of over
        600, 000 are better able to provide safe bridges and that it: is more
        important in those cities that the bridges be safe than in smaller         cities?
        It will ask why this greater responsibility,      for some reason,     terminates
        when the city reaches 800, 000 in population?        It is our feeling that
        unless the act recites valid reasons for the classification,        there is a
        strong possibility   that a court will hold that the classification     in S. B.
        13. as presently    drawn, is not a reaeonable one and that the act is a
        special law and thus unconstitutional      under Article   3, Section 56.

                                        -SUMMARY-

                                Whether or not a population bracket or spread
                       determining application of a law is sufficiently broad,
                       or whether application of a statute limited to a class
                       determined by population is constitutional      under
                       Article 3, Section 56 of the Constitution of Texas depends
                       on the reasonableness   of the classification,    based upon
                       the existence of substantial differences     and the circum-
                       stances of the affected classes.

                                                          Yours   very truly,




                                                          Attorney   General    of Texas

        APPROVED:




        J&-I& M.    BARRON




                                   -      7




        DAVID M. KENDALL,              Chairman
        Opinion Committee
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