       THE     ATTORNEY            GENERAL
                     ow   TICKAS



                         February 22, 1964

Honorable Joe Resweber             Opinion No. c-220
County Attorney
Harris County                      Re:   Constitutionality of
Houstop, Texas                           Articles 3930 and
                                         3930a, V.C.S.
Dear Mr. Resweber:
      Your request for an opinion reads as follows:
           "Mr. S. B. Bruce, Auditor of Harris
      County, has requested that thls office
      obtain an opinion from you as to whether
      Articles 3930 (a) and 3930 V.T.C.S. are
      in accord with the Constitution of the
      State of Texas. This office has prevlous-
      ly rendered an opinion upon these ques-
      tlons to R. E. Turrentine, Jr., in res-
      ponse to his request for same.
            "Your opinion is respectfully request-
       ed as to these questions, and the answers
       to them contained in the opinion of our of-
       fice, as Indicated, a copy of which Is at-
       tached hereto."
       The questions of Mr. R. E. Turrentine, Jr., are as
follows:
            "(1) Was the Article 3930 Bection 4
       of House Bill 642, Acts of the 49th Legls-
       lature, Regular Session, 1945, Chapter 368,
       page 662, at page 6637 which immediately
       preceded the present Article 3930 R.C.S. of
       Texas, 1925, &ection 1 of Senate Bill 237,
       Acts of the 55th Legislature, Re ular Ses-
       sion, 1957, Chapter 228, page 471
                                       7 constitu-
       tional?
            "(2) Is the present Article 3930 R.C.S.
       of Texas, 1925, Bection 1 of Senate Bill
       237, Acts of the 55th Legislature, Regular
       Session, 1957, Chapter 228, page 4727 consti-
       tutional?

                              -1057-
Hon. Joe Resweber, page 2 (C-220)


            “(3)  Is the present Article 3930 (a)
       R.C.S. of Texas, 1925 fiection 1 of House
       Bill 706, Acts of the 57th Legislature,
       Regular Session, 1961, Chapter 495, page
       lOgp7 constitutional? Drackets our$
            "(4) If, in your opinion, the three
       statutes referred to above should be un-
       constitutional or, if any two of the three
       should be unconstitutional, would there be
       any greater violation in law in using one
       of the statutes as against using another of
       the statutes?
            “(5)  If, In your opinion, two or more
      ,of the above statutes should be determined
      to be unconstitutional, would it not be im-
      perative that suit be filed before the Su-
      preme Court to get a definite determination
      of the constitutionality of the three stat-
      utes cited?"
       Article 3930, Revised Civil Statutes of Texas, 1925,
as amended by Section 4 of House Bill 642, Acts of the 49th
,Iegislature,Regular Session, 1345, Chapter 368, page 662,
prescribes the fees that the clerks of the county court shall
receive. Section 20 of Article V of the Constltutlon of Texas
specifically authorizes the Legislature to prescribe the fees
of office for the county clerks. You are therefore advised in
answer,to your first question that Article 39 0, Revised Civil
Statutes of Texas, 1925, as amended by the 1925 Act referred to
above, was constitutional.
       Article 3930, Revised Civil Statutes of Texas, 1925, as
amended by Section 1 of Senate Bill 237, Acts of the 55th Legis-
lature, Regular Session, 1957, Chapter 228, page 477, prescribes
the fees of office of the county clerk. In answer to your second
question, you are advised that since the Legislature is specifi-
cally.authorized to prescribe the fees of county clerks, Article
3930, Revlsed,Civil Statutes of Texas, 1925, as amended, Is con-
stitutional.
       Article 3930a, Vernon's Civil Statutes, is an Act ap-
plicable to county clerks and clerks of the county courts in
counties having a population of 1,200,OOO inhabitants or more
according to the last preceding Federal Census. It prescribes
the fees county clerks are to receive in such counties, subject
to the adoption of the Act by the commissioners court of a county
otherwise qualified.

                            -1058-
Hon. Joe Resweber, Page 3 (c-220)


       Section 56 of Article III of the Constitution of Texas
prohibits the enactment of,local or special laws regulating
affairs of counties. However, courts of this State, in con-
struing the provisions of Section 56 of Article III have held
that,a statute is not local or special within the meaning of
the Constitution even though Its enforcement be restricted to
a part,icularlocality If persons or things throughout the State
are affected thereby or if it operates upon a subject in which
the people,at lar e are interested. Clark v. Finley, 93 Tex.
171, 54 S W. 343 $1899); Reed v. Rogan, 94 Tex. 1
255 (19OO)i Stephenson v. Wood, 119 Tex. 564, 34 ~7~.'~ds$%
(1931); 'McGee Irrigating Ditch Company v. Hutton, 85 Tek. 587,
22 S.W. 967 (1893); Handy v. Johnson, 51 Fed.2d 809, (E.D.
Tex. 1931); Lower Colorado River Authority v. McGraw, 125 Tex.
268, 83 S.W.2d 629 1,193s);Lower Neches Valley Authority v. Mann,
140 Tex. 294, 167 S.W.2d 1011 (1943); Lamon v. Ferguson, 213
S.W.2d 86 (Tex.Civ.App., 1348).
       The primary and ultimate test of whether a law,is'gener-
al or special is whether there is a reasonable basis for the
classification made by the law or whether the law operates
equally on all within the class. Rodriguez v. Gonzales, 148 Tex.
537, 227 S.W.2d 791 (1950); Bexar County v. Tynan, 128 Tex. 223,
$5'S.W.2d 467 (1936 ; Miller v. El Paso County, 136 Tex. 370,
150 S.W.2d 1000 (1911).
       The emergency clause of House Bill 706, Acts of the 57th
Legislature, Regular Session, 1961, Chapter 495, page 1099, at
page 1101, codified in Vernon's as Article 393Oa, Vernon's
Civil Statutes, states that the fact that the Officers' Salary
Fund in the counties of Texas affected by the provisions of
this Act are inadequate and Insufficient to take care of the
expenses of the officers affected, thereby placing an extra bur-
den on the already overburdened general funds of such counties,
creates an emergency.
       Since the Act is applicable to counties having a popu-
lation of 1,200,OOO inhabitants or more according to the latest
Federal Census, It is our opinion that Article 3930a is not in
violation of the provisionsof Section 56,of Article III-    the
Constitution of Texas.
       The remaining question to be determined is whether the'
provisions of Article 3930a, making Its provisions subject to
the adoption by the commissioners court at the written request
of the clerk, constitutes an unlawful delegation of legislative
power.

       The caption of the 1961 Act, codified in Vernon's as Arti-
cle 3930a, Vernon's Civil Statutes, provides that Its provisions
                            -1059-
Hon. Joe Resweber, page 4 (C-220)


shall be “subject to the adoption of this Act by the Commissioners
Court of a county otherwise qualified.” The body of the’Act pro-
vides “County clerks and clerks of the county courts in counties
having*.onemillion, tWo,hundred thousand (1,200,OOO) or more popu-
latfon, according to the latest Federal Census, ‘are’herebytiu:
thorlzed to recelve’the following fees for their services in lieu
of all other fees authorized’by statute, provided the Commissioners
Court ofan otherwisequalified county’shall pass’an’order; at the’
request of said clerk, Edopting and applying the provisions of this
Act to said clerk . . ,.
       Thus It Is seen that the,Leglslature has attempted to grant
to the commissloners’court and the county clerk the power to sus-
pend or not to suspend the operation of House Bill 706, Acts of
the,57th Legislature, Regular Session, 1961, Chapter’495, page
lCg9, contrary to Section 28 of Article I of the Texas Constitution.
       In discussing the question of delegation of legislative power,
it was stated,in State,v. Swisher, 17 Tex. 441 (1854):
            “The mode in which the acts of the Legis-
       lature,are to become .lawsis distinctly polnt-
       ed out by’our Constitution. After an act has
      passed both houses of the Legislature, it must
      ,be signed by,the speaker of the house and the
      president of the senate. It must then receive
       the approval of the Governor. It is then a law.
      Rut should the Governor veto It and send Itback,
       it can only.become law by being passed again by’
      both houses, by a constitutional majority. There
       is no authority for asking the approval of the
      voter$ at the primary ,elections In the different
       dounties., It only requires the votes of their
       representatives in a legislative capacity. Rut,
      besides the fact thatthe Constitution does not
      provide for such reference to the voters to give
       validfty to the acts of the Legislature, we re-
      gard’it ‘as repugnant to ‘the principles of the
       regresentative government formed by our’Consti-
       tutionD Under our Constitutfon the’principle’of
       lawmaking Isthat ‘lawsare made by the people,
       not directly, but by and through their chosen
       representatives. By the aot under consideration
       this principle Is subverted, and the law is pro-
       posed to be made at last by the popular vote of
       the people, leading inevitably to,what Masin-
       tended to be avoided, confusion and great popular
       excitement in the enactment of laws.”


                               -1060-
Hon. Joe Resweber, page 5 (C-220)


       In Lyle v. State, 80 Tex.Crim. 606, 193 S.W. 680 (lgli'),
it was hela:
           “Granting the correctness of these
      decisions con&ruing sectfon 1, art. 28, of
      the Constitution, ‘the principle in the pool
      hall Saw’Is unsoun.d. They so definitely
      establish the rule of,construction in this
      state applying to the section of the Consti-
      tution mentioned that overruling them could
      only~be justified, as 'saidby 'Chancellor
      Kent, 'upon very urgent reasons and clear
      manifestation of error.’ It Is aoncelved
      that the reasons ‘supportingthe decisions
      of this state under the constitutional pro-
      vision that the Legislature has no power to
      delegate Its authority or suspend laws either
      to the people or to other agencies  of govern-
      ment are sound. If the contrary were true,
      and the principle sought to be applied In
      the pool hall law became a fixed rule in this
      state, It would be possible for the Legislature
      to delegate to the people of a given community
      the right to suspend the operation of the var-
      ious police regulations adopted by the Legis-
      lature. The question, for example, as to whether
      the Sunday laws or the pure food laws or other
      police regulations of the state would be oper-
      ative In given localities would not be depend-
      ent upon the act of the Legislature which pass-
      ed the laws for the government of the entire
      state, but communities and subdivisions of the
      state would.be permitted by popular vote to’
      determine whether or not they would be govern-
      ed by the law in question.' The framers of the
      Constitution when they wrote section 28 of artl-
      cle 1 of the Constitution, abandoning the pro-
      vision theretofore existing that laws might be
      suspended by the authority of the Legislature,
      and asserted in the new Constitution that they
      could be suspended alone by the Legislature,
      were not without foresight as to the mischievous
      consequences that might flow from extending to
      the Legislature the power to delegate .lts au-
      thority to suspend laws. Whatever considerations
      induged the framers of the Constitution to adopt
      the provision mentioned, it is a part of the
      organic law of thenstate; it has been upheld
      by the judicial decisions of the state . . .I'

                             -1061-
Hon. Joe Reswi?ber,page 6 (C-220)


        For a similar deelsion, see Ex parted-Mitchell,109 Tex.
11,   177 S.W~.
              953 (1915).
                                       203 s.w.2d 320 (T~X.CSV.
                                    ng’,
                                       the conditions under
which the Legislatu,Pemay delegate to a governing bddy, such
as the’tiommissionersbourt, the power to accept or reject the
benefits and provisions of an Act, stated:
              I,. . . it is a long’and well-settled
        rule of cozistitutlonallaw that the legis-
        lature cannot delegate to the people or any
        board, bureau, commissioners court or other
        administrative or legal body or.inst$.tution
        its authority to make laws; but that does not
        mean the legislature Is without authority to
        confer a power upon a municipal corporatfon
        .or its governing body authority and power to
        accept or reject the benefits and provisions
        of a general law legally enacted ;by the legls-
        lature. Conditions can, and frequently do,
        arise in which the legislature itself cannot,
        in.a practical and efficient manner, exercise
        certain types of authority. It would seem the
        subject matter of the statute in question fur-
        nished a practical demonstration of such a
        cdndition. Obviously the voting machines are
        designed to facilitate voting In those locall-
        ties and precincts where, on account of the
        large number of electors eligible to vote, the
        process of voting becomes congested and makes
       ,lt difficult for the election to become com-
        pleted and all electors accommodated within
        the time allowed for its completion; whereas,
        in other sections and precincts, no difficulty
        In that respect is encountered. In the first
        class of sections and precincts the voting
        machines are no doubt beneficial and perhaps
       ‘necessary but they are not needed in the
        latter class. ,It would be difficult If not
        impossible, for the legislature to ascertain
        the places where the machines were needed and
        distinguish those in which they were not need-
        ed. In such conditions It Is the well-
        established rule that the legislature Is au-
        thorized to delegate to local authorities the,
        power and authority to determine whether or ‘,
        not a general statute shall become’effective
        within their respective jurisdictions. Johnson
        v. Martin, 75 Tex. .50, 12’S.W.’321; Trlmmier
                              -1062-
Hon. Joe Resweber, page 7 (C-226)     i


       v. Carlton, 116.Tex. 572, 296 S.W. 1070; State.
       Hi way ‘Dept. v. G&ham, 139 Tex. 361, 162 S.W.2d
       93&”. In Trimmier  v.,‘Carlton,supra, Chief Jus-
       tice Cureton,‘speaking’on the question for the
       Supreme ‘Court, observed that the exercise of
       that particular”ty’peof authority by the legis-
       lature Is recognlied as an exception to the gener-
       al language of limitation In the Constitution;
       that it waa merely tantamount to saying that the
       Constitution itself does not require the imprac1
       ticable or the Impossible.”
       It is our opinion that the power and duty of the Legis-
lature to prescribe fees for the,county clerks of this State
is not such a power as may be delegated to the commissioners
court contingent upon the written request of the clerk. It is
neither tmpractical nor impossible for the Legislature to
determine what fees ,are to be prescribed; quite the contrary,
the Constitution places this duty~on the Legislature and the
Legislature has exercised this power throughout the years.’It.
is therefore our opinion that the provisions of Artlcle,‘3930a,
Vernon’s Civil Statutes, making the fees prescribed therein
subject to the adoption,of the Act by the commissioners court
follawlng request by the-clerk, are untionstitutional,as being
an unlawful delegation of legislative power. Since these pro-
visions are not capable of being severed without changing the
Intent of the Legislature, it Is our opinion that the entire
Act must fall. You are therefore advised that the provisions
of Article 3930a are invalid.
       In answer to your fourth question, you are advised
that since the provisions of Article 3930a’are Invalid, the
fees to be prescribed by the county clerk are governed by the
provisions of Article 3930, Revised Civil Statutes of Texas,
1925, as amended (Section 1 of Senate Bill 237, Acts of the
55th Legislature, 1957, Chapter 228, page 477).
       It is not necessary to answer your fifth question as it
was contingent upon our holding that two or more of said statutes
are unconstitutional.
                            SUMMARY
            Article 3930, Revised Civil Statutes of
       Texas, 1925, as amended, prescribing fees of
       county clerks, is constitutional.
            Article 3930a, Vernonts Civil Statutes,
       prescribing fees of county clerks in counties

                             -1063-
                                                      .   I




Hon. Joe Resweber,,page    8   (C-220)


        having a population of 1;200,0@lnhabltants
        or more; and making Its provlsions'subjedt'
        to the'adoption by the commissioners court,
        is unconstitutional and invalid since the
        same'constitutes an unlawful,delegation of
        legislative power.

                           Yours very truly,
                           WAGGONER CARR
                           Attorney General



                           BY
                                 John Reeves
JR:ms                            Assistant
APPROVED:
OPINION COMMITTEE
 W.'V. Geppert, Chairman
 Gordon Appleman
OH. Grady Chandler
 Milton Richardson
 Lloyd Martin
APPROVED FOR THE ATTORNEY GENERAL
By: Howard W. Maya




                                  -1064-
