Honorable  Wardlow    Lane,
Chairman,  State Affairs,
Senate of Texas,
Austin, Texas                                                           Opinion     WW-34.

                                                                       Re:    Constitutionality   of Senate Bill
                                                                              103, of the 55th Legislature,
                                                                             prescriving     the maximum work-
                                                                             ing hours for Firemen,      on a
                                                                             graduated basis in ,regard to the
                                                                             population of a County, and
                                                                             related questions.
Dear   Senator   Lane:

             You have requested     an opinion on the constitutionality    of Senate Bill 103
of the 55th Legislature,   and the Amendments       thereto, currently   pending before the
Senate Committee     on State Affairs,    Senate Bill 103 is to amend Section 6, of Chap-
ter 38, Acts of the 49th Legislature,      as amended (codified as Section 6 of Article
1583-1, Vernon’s   Texas Penal Code), so as to delete provisions        relating to maxi-
mum working hours of policemen;        to prescribe    the maximum working hours of
firemen in cities with more than Ten Thousand (10,000) inhabitants,           on a graduated
basts in relation to the population of the county; and to provide for the minimum
number of platoons in certain cities; and the sequence of tours of duty of platoon
members.     This bill as written, or as amended by Senate Committee Amendment
No. 2 by Senator Krueger,     would apply to all counties having a population of more
than Ten Thousand (10,000) inhabitants.        The maximum working hours of firemen
in each category   is graduated   in relation to the population of the county.

             Section       56 of Article                111of the Constitution       of Texas     provides:

                      “The Legislature   shall not, except as otherwise
             provided in this Constitution,   pass any local or specLa1
             law,. . , . ,‘I
                          4.          I.
                            . . . . .

                          “Regulating  the affairs                   of cdunties,    cities,    towns,
             wards       or school districts;

                          ‘I                       ,,
                               .   .   .   .   .




              In the case              of Miller        v. El Paso    County,     130 Tex.     370, 150 S. W. 2d 1000,
the Court   stated:
Hon. Wardlow    Lane,   Page   2, (WW-34)




                     “Notwithstanding       the above constitutional    provision
            /Art. III; Sec. 5G;the       courts recognize,,in   the.Legislatare
            a rathes,broad    ~$%wer to make classiG~&ions          fsr legislative,,
            pur.pos’$s:and to,enact laws for the regulation         thereof, even.
            though ,such legisl:tion      may be applicable    only to a particular
            class or, in fact, affect only the inhabitants of a particular
            locality; but such legislation      must bs intended to apply uni-
            formly to all who may come within the classification             desig-
            nated in the Act, and the classification       must be broad enough
            to include a substantial class and must be based on character-
            istics legitimately    distinguishing    such class from others with
            respect to the public purpose sought to be accomplished               by
            the proposed    legislation.     ln other words, there must be a
            substantial   reason for the classification.      . . . .”

                      1,.   . . . Resort to population brackets for the purpose
            of classifying     subjects for legislation   is permissible  where the
            spread of population is broad enough to include or segregate         a
            substantial    class, and where the population bears some real
            relation to the subject of legislation      and affords a fair basis
            for the classification.      . . . .”

            This principle of law has been consistently    recognized   by the courts
and by the Attorneys  General of this State. Rodriguez    vs. Gonzales,   148 Tex. 537,
227 S.W. 2d, 791 (1950); Bexar County vs. Tyner, 128 Tex. 228 97 S.W. 2d, 467
(1936):
,-.~~,. Oaklev  vs. Kent.3 Bl S. W. 2d 919 (Tex. Civ. App., 1944), Anderson
        - ~~~~~~,                                                               vs. Wood,
137 Tex. 201, 152 S. W. id, 1084 (1941j, Attorney General’s    Opinion R-2461.

              Clark vs. Finley, 93 Tex. 171, 54 S. W. 343, recognized       that substantial
differences   in population,s of counties was a basis for legislation    fixing compensation
of officers  on the theory that the work devolved upon an officer was directly pro-
portionate to the population of the county.       This was recognized   as sufficient to
justify a larger compensation     for officers   in counties having a large population
as compared     with compensation    to like officers  in counties having a smaller    popu-
lation.

              This same doctrine applies in like manner to regulation        of the working
hours of firemen    by means of a graduated bracket regulation       on a population basis.
Since it has be,en clearly recognized     that the work devolving upon officers      is
directly proportionate    to the population of the county, a sufficient basis to justify
a graduated scale of maximum working hours is thus established.            It follows that
the Legislature   may determine that the work load of firemen        in counties with a
large population is more strenuous than that in counties with a small population.
Therefore,    a more restricted   number of maximum work hours is a reasonable
regulation.

              Senate Committee Amendment       No. 1 restricts  the application of the
bill to cities containing the population of “not more than 400,000 inhabitants”,
and eliminates    at least three cities from the Act, i. e. Dallas, Houston and San
Antonio.    Amendment     No. 1 is based upon the determination   that cities having
Hon. Wardlow       Lane,   Page   3 (WW-34)


the larger population would not have as great or greater need for regulated maxi-
mum working hours as would small cities.      The Legislature cannot determine the
positive and the negative of the same propostion and expect the Act to pass the
test of being based upon a reasonable classification.

                In Attorney   General’s Opinion R-2414,     quoting   Oakley   vs. Kent, Supra,
the following     reasoning   was adopted:

                        “If population affords a ground for creating the office
                of county purchasing   agent, it must be upon one of two theories:

                        “(1) The smaller   the population    of the county the gr,eater
                the need for such an office.

                        “(2)  The greater the population     of the county the greater
                the need of such an office.”

                          “The bracket is from 140,000 to 220,000.      Upon the first
                theory the law is arbitrary    and discriminatory    because it excludes
                counties below 140,000, which would have a greater need than the
                counties in the bracket,     Upon the second theory, the law is likewise
                arbitrary   and discriminatory    in that it does not embrace  counties
                having a population above 220,000 which counties would have a
                greater need for a purchasing      agent than counties within the bracket,

              Neither Senate Bill 103 of the 55th Legislature,    nor Senate Committee
Amendment      No. 2, by Senator Krueger   sets the maximum working hours of firemen
in cities with a population of less than 10,000 inhabitants.     The Legislature    can
determine   that there is no need for regulation   in cities of such size.   Therefore,
the exclusion   of coverage  of such cities in the Bill as written and Senate Com-
mittee Amendment No. 2, does not prevent the Bill as written nor Amendment
No. 2 from being a general law within the meaning of Section 56 of Article         III of
the Constitution of Texas.

                In order for a population bracket to be used as a classification        device,
the premises      upon which it is based must be consistent.



                                               SUMMARY

                                   Senate Bill No. 103 and Senate Committee
                        Amendment      No. 2 use a consistent classification
                        cLeiric~e:and are don.stitutional. Amendment     No. 1 is
                        inconsistent with the basic premise     of the classi-
                        fication device that the work load in counties with
Hon. Wardlow   Lane,   Page   4 (WW-34)


                   a larger    population is more strenuouq.      If adopted,
                   it would    make this Act a “local or special law” in
                   violation    of Section 56 of Article III of the Consti-
                   tution of   Texas.


                                                   Very   truly   yours,

                                                    WILL  WI,LSQN
                                                    ATTORNEY    GENERAL



                                                    ByB d -,
                                                          B, H. Timmins,   Jr.
                                                          Assistant

BHTji   :F

APPROVED:

OPINTON COK%TlTW
By H. Grady Chandler,
    Chairman
