Hon. Richard S. Morris
County Attorney
Armstrong County
Claude, Texas


Dear Sir:         Opinion No. O-2127
                  Re: Constitutionality of Senate Bill
                      367 of the 46th Legislature of
                      Texas

           Your request for opinion of this department as to
the constitutionality of Senate Bill 367 of the 46th Legis-
lature of Texas has been received and carefully considered.

           Senate Bill 367 of the 46 Legislature of Texas,
reads as follows:

        "COUNTY COMMISSIONERS - TRAVELING EXPENSES
                      S. B. No. 367
              Acts of the 46th Legislature

     "AN ACT authorizing the Commissioners Court in
     all counties having a pop~ulation of not less
     than three thousand three hundred (3,300) and
     not more than three thousand four hundred (3,400),
     according to the last preceding Federal Census,
     and in all counties ha'ving a population of not
     less than ten thousand three hundred ninety-nine
     (10,399), and not more than ten thousand four
     hundred ninety-nine (10,499), according to. the
     last preceding Federal Census, to allow each County
     Commissioner certain traveling expenses while tra-
     veling on official business; and declaring an
     emergency.

     "BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF
     TEXAS:

          "Sec. 1. In all counties in this State hav-
     ing a population of not less than three thousand
     three hundred (3,300) and not more than three
     thousand four hundred (3,400), according to the
     last preceding Federal Census, and in all counties
                                                                  -   .




Hon. Richard S. Morris, Page 2



    having a population of not less than ten thousand
    three hundred ninety-nine (10,399), and not more
    than ten thousand four hundred ninety-nine (10,499),
    according to the last preceding Federal Census,
    the Commissioners' Court in such counties is hereby
    authorized to allow each commissioner the sum of
    Fifty ($50.00) Dollars per month for traveling
    expenses when traveling in the discharge of his
    official duties.

          "Sec. 2. The fact that in counties affected by
     this Act, there is a great deal of traveling over
     rough country roads by the County Commissioners in
     the discharge of their duties; and the fact that
     under the present law said Commissioners are under-
     paid: and the fact that more effective service can
     be rendered by said Commissioners if more adequately
     paid: and the fact that the allowance of traveling
     expenses as herein set out, is reasonable, just and
     equitable, creates an emergency and imperative
     public necessity that the Constitutional Rule requir-
     ing that all bills be read on three several days in
     each house be suspended, and said Rule is hereby
     suspended, and this Act shall take effect and be in
     force from and after the'date of its passage, and
     it is so enacted.

     "Filed without Governor's signature, May 3, 1939.
     "Effective May 3, 1939."

          Armstrong County, Texas, according to the last pre-
ceding Federal Census of 1930, has Three Thousand, Three Hun-
dred, Twenty-nine (3,329) inhabitants and is the only county
in Texas coming within the population brackets of not less than
three thousand three hundred (3,300) and not more than three
thousand four hundred (3,400) inhabitants.

           Willacy County, Texas, according to the last preced-
ing Federal Census, has ten thousand four hundred ninety-nine
 (10,499) inhabitants and is the only county in Texas coming
within the population brackets of not less than ten thousand
three hundred ninety-nine (10,399) and not more than ten thou-
sand four hundred ninety-nine (10,499) inhabitants.

          The question arises as to whether or not this is a
local or special act attempting to regulate the affairs of
counties in violation of Article 3, Section 56 of the Consti-
tution of Texas.
.




    Hon. Richard S. Morris, Page 3



              The case of Altgelt vs. Gutzeit, 201 SW 400, holds
    that a Bexar County Road Law, providing for an annual salary
    for commissioners of county for acting in all capacities, was
    unconstitutional, as an attempted regulation of county affairs
    by local and special law.

              The case of Smith vs. State, 49 SW (2d) 739, holds
    that the constitutional prohibition against special laws can-
    not be evaded by making a law applicable to a pretended class
    and that a statute classifying municipalities by population
    is "special" if the population does not afford a fair basis
    for classification but that the statute merely designates a
    single municipality under the guise of classifying by popula-
    tion. We quote from the court's opinion in said case as fol-
    lows:

              "A consideration of the classification creat-
         ed by the act involved in the present case in the
         light of Article 3, Section 56 of the Constitution,
         primarily calls for the application of the rule that
         the Legislature cannot evade the prohibition of the
         Constitution by making a law applicable to a pretend-
         ed class, which is, as manifested by the act, in
         fact, no class. Clark vs. Finley, 54 S.W. 343, supra.
         Some of the tests for determining whether a pretend-
         ed class is manifested by an act are laid down by
         McQuillan on Municipal Corporations, Wolume 1, pages
         298, 299. We quote:

                   "'The classification adopted must rest
              in real or substantial distinction, which
              renders one class, in truth, distinct, or
              different from another class.... There must
              exist a reasonable justification for the
              classification: that is, the basis of the
              classification invoked must have a direct
              relation to the purpose of the law...."'

              We quote from the court's opinion in the case of
    wood vs. Marfa Independent School District, 123 S.W. (2d)
    429, as follows:

              "We take judicial knowledge that no other
    county in Texas has the qualification of area and
    population demanded by the statutes....  It is
Hon. Richard S. Morris, Page 4



     sufficient to say here that when we look to the
     practical operation of the act, we are led to the
     conclusion that beyond doubt it was the purpose
     of the Legislature to single out Presidio County
     and make the act applicable to that county alone.
     Bexar County vs Tynan, 97 S.W. (2d) 467. For
     that reason the act is a local act and one which
     it was beyond the power of the Legislature to
     enact. Vernon's Annotated Civil Statutes, Texas
     Constitution, Article 3 Section 56; Brownfield vs.
     Tongate, 109 S.W. (2d) 352; City of Fort Worth vs.
     Bobbitt, 36 S.W. (2d) 470; Fritter vs. West, 65
     S.W. (2d) 414; Austin Bros. vs. Patton, 288 S.W.
     182; Smith vs. State, 49 S.W. (2d) 729

          This department held in its opinion No. O-18 on
March 6, 1939, that Articles 2372-l and 5221b-23, Revised
Civil Statutes of Texas, 1925, the former being applicable
to counties having a population of less than forty-
eight thousand, nine hundred (48,900) and not more than
forty-nine thousand (49,000) and the latter applying to
counties with population of not less than forty-eight
thousand, nine hundred (48,900) and not more than forty
eight thousand, nine hundred and seventy-five (48,975) and
counties with population of not less than ten thousand,
three hundred and seventy (10,370) and not more than ten
thousand, three hundred and eighty (10,380), according to
the last preceding Federal .Census, were unconstitutional
and void as special laws under Section 56, Article 3, of the
State Constitution, citing the case of the City of Fort
Worth vs. Bobbitt, 36 S.W. (2d) 470.

          This department held in its opinion No. O-364,
on March 1, 1939, that Article 3902, Section 3a thereof,
Revised Civil Statutes of Texas, 1925, providing for an
office assistant, bookkeeper and stenographer in coun-
ties having a population of not less than forty-eight thou-
sand, none hundred (48,900) and not more than forty-nine
thousand (49,000 inhabitants, according to the last pre-
ceding Federal Census, was void under Article 3, Section
56, of the State Constitution.

          This department held in its opinion No. O-462,
on March 21, 1939, that House Bill 632, 46th Legislature,
which provides for the attachment of adjacent territory
for zoning purposes by towns of not less than four thou-
sand (4,000) inhabitants within counties of not less than
.   -




        Hon. Richard S. Morris, Page 5



        three hundred thousand (300,000) and not more than three
        hundred and fifty thousand (350,000) inhabitants accord-
        ing to the last preceding Federal Census, was unconstitu-
        tional in that it attempted to enact a local law and fell
        within the prohibition of Article 3, Section 56, of the
        Constitution of Texas.

                  This department held in its opinion No. O-899,
        on June 1, 1939, that House Bill 866 of the 46th Legisla-
        ture of Texas, providing for traveling expenses for county
        commissioners of counties having a population of not less
        than (22,X00) and not more than (22,500), acording~to the last
        preceding Federal Census, was unconstitutional in that it
        was a local and special law attempting to regulate the
        affairs of a county and fell within the prohibition of
        Section 56 of Article 3 of the Constitution of Texas.

                  This department held in its opinion No. O-1986
        on February 29, 1940, that H. B. 876, 46th Legislature and
        H. B. 1122, 45th Legislature, were unconstitutional and
        void in that the same were local and special laws attempt-
        ing to regulate the affairs of county and fell within the
        prohibition of Section 56 of Article 3 of the Constitution of
        this State. These bills applied only to Montgomery County,
        Texas. We have heretofore sent you a copy of this opinion.

                  This department has held a large number of similar
        acts to be unconstitutional on the grounds above stated.

                  Therefore, you are respectfully advised that it
        is the opinion of this department that Senate Bill 367 of
        the 46th Legislature of Texas is unconstitutional and in
        violation of Section 56 of Article 3 of the Constitution of
        Texas in that said Act attempts to regulate the affairs of
        counties by local and special law.



                                            Very truly yours

                                         ATTORNEY GENERAL OF TEXAS
            APPROVED APR 15, 1940
                                         /s/ Wm. J. Fanning
             /s/ Gerald Mann                      Assistant
            ATTORNEY GENERAL OF TEXAS


        WJF:AW                           APPROVED OPINION COMMITTEE
                                         By BWB
                                            Chairman
