 GROVER   SELLERS                A1JwrIN    11. -IYrcuAs
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    Honorable Elmer H. Parish              (This Opinion Overrules      Opinion
    District Attorney                       X0-3643,  O-5265,  O-5889     & O-6227
    Wichita Falls,  Texas                   in so far as they conflict.

     Dear Sir:                       ,Opinion No. O-6958

                                     Re:    Constitutionality   of Article 2326c,
                                            V. A. C. S.~, fixing the salary of
                                            court reporters.     And related
                                            questions.

                  Yotm letter of recent    date requesting    an opinion from   this
    department   is as follows:

                  “The question of what statute governs the compen-
           sation to be paid the Official Court Reporters  of the Dis-
           trict Courts of Wichita County has been raised and I am
           desirous of securing your opinion on the following specific
           questions:

                  ‘“QUESTION NUMBER ONE:            Is Article 2326~ of the
           Revised Civil Statutes of Texas, which provides for sal-
           aries of reporters    in judicial districts,  with the exception
           of certain districts,   constitutional?

                  “QUESTION NUMBER TWO:              If Article 2326~ is un-
           constitutional,    does Article 2326b control in determining
           the salaries    of the official reporters   in Wichita County?

                  “QUESTION      NUMBER THREE:        If Article 2326~ is
           unconstitutional    and Article 2326b sets the salaries   of the
           reporters    of the district courts of Wichita County at $3,000
           per annum, would the acceptance       of a lesser salary by the
           reporters   waive their right to collect the difference between
           the $2,700 paid and the $3,000 set by Article 2326b for the
           past two years?

                 “I am attaching hereto     a short brief    covering   the
           three questions involved.”

                  We are also in receipt of your excelleht       brief which was
     attached to the above quoted letter.   Your discuaslbn      of the matters   in-
     volved was of material assistance    in our considt&on         of your opinion
     request.
Hon. Elmer    H. Parish,    page 2


              Article   2326c,   Vernon’s   Annotated   Civil Statutes,   is as
follows:

               “The official shorthand reporter       of each Judicial
       District in this State and the official shorthand reporter
       of any County Court, either civil or criminal,         in this
       State, where the compensation         of such reporter of such
       County Court or Judicial District        is not otherwise pro-
       vided by special law, shall receive a salary of not more
       than Two Thousand Seven, Hundred Dollars ($2,700.00)
       per annum, nor less than Two Thousand Four Hundred
       Dollars ($2,400.00)    per annum, such salary to be fixed
       and determined by the District or County Judge respec-
       tively of the Court wherein such shorthand reporter is
       employed,   in addition to the compensation        for transcript
       fees as provided for by law. Said salary shall be paid
       monthly by the Commissioners           Court of the county out
       of the General Fund of the county, or in the discretion
       of the Commissioners’       Court, out of the jury fund of said
       county, upon the certificate      of the Judge of such District
       or County Court.     In districts    of this State composed of
       two or more counties,     said salary shall be paid monthly
       by the counties of the District in proportion to the number
       of weeks provided by law for holding Court in the respec-
       tive counties in the District;     provided, that in a District
       where in any county the term may continue until the bus-
       iness ts disposed of, each county shall pay in proportion
       to the time Court is actually held in such county.

               “The salary of the official shorthand reporter in
       each Judicial District in any county of this State with a
       population in excess of one hundred and fifty thousand
       (150,000) according to the last preceding Federal census
       and which alone constitutes    two or more Judicial Districts,
       in addition to the compensation    of transcript  fees as pro-
       vided by law, shall be Three Thousand Dollars ($3,000.00)
       per annum, to be paid as the salaries     of other court re-
       porters are paid.

              “It is expressly    provided, however,   that the provi-
       sions of this Act shall not in any way apply to the offtcial
       shorthand reporter      in and for the 25th Judtcial Dtstrtct,
       composed of the counties of Guadalupe, Gonzales,         Colorado
       and Lavaca, nor shall thts Act repeal Senate Btll 133, Reg-
       ular Session, 43rd Legtslature;      nor shall the provistons   of
       this Act apply in any way to the official shorthand reporters
       m and for any Judicial Dtstrtct Court of Bexar County, ctvtl
       or cruninal,   nor shall thts Act repeal Senate Btll N 0. 315 >
Hon. Elmer   HE. Parish,   page 3




      Regular Session 43rd Legislature;      nor shall the pro-
      vtstons of this Act apply to any offictal shorthand re-
      porter in and for tl&-‘22nd Judicial District of Texas
      composed of the counties of Comal, Hays, Caldwell,
      Fayette and Austm.”       (Underscormg   ours)
                             II
             Section 56, Article III of our State Constitution provides:

              “The Legislature  shall not, except as otherwise
      provided in this Constitution,  pass any local or special
      law * * * regulating the affairs of counties, cities, towns,”
      etc.  “And in all other cases where a general law can
      be made applicable no local or special law shall be en-
      acted.’

             Since the salary of shorthand reporters   is paid by the county,
acts fixing said salary are laws regulating the affairs of counties within
the meaning of Section 56 of Article III, supra.

              In the case of Bexar County v. Tynan, et al, 97 S.W. (2d) 467,
(Commission     of Appeals),  the court in construing the above quoted consti-
tutional provisions   stated the following:

             “The Legislature   may, upon a proper and reason-
      able classification,  enact a general law which at the time
      of its enactment is applicable to only one county; provided
      its application is not so inflexibly fixed as to prevent it
      ever being applicable to other counties.    . . .

              “Notwithstanding    it is true that the Legislature    may
      classify   counties upon a basis of population for the purpose
      of fixinn comnensation     of county and precinct officers,      yet
      in doing so the classification     r&t    be- based upon a real
      distinction,   and must not be ar ,bitiary or a device to give
      what 1s tn substance a local or spectc al law the form of a
      gyral     layl. If is well recognized     that in determining
      w ether a aw 1s publtc, general,        spectal or local the
      courts will look to its substance and practical        operations
      rather than to its title, form and phraseology,        because
      otherwise prohibitions     of the fundamental law against spe-
      cial legislation    would be nugatory.     25 R. C. L., 815, and
      authorities    cited. . .

              ‘“In the case of Clark v. Finley, 93 Tex. 171, 54 S..W.
       343, this court recognized    that substantial differences   in
       populations of counties could be made a basis of legisla-
       tion fixing compensation    of officers, on the theory, as the
       court clearly recognized,    that the work devolving upon an
       officer was in some degree proportionate       to the population
Hon. Elmer     H. Parish,    page 4




         of the county.    This has frequently been recognized           by
        courts as creating a sufficient distinction to justify a
        larger compensation       for county officers      in counties hav-
        ing a large population as compared with compensation
        to like officers    in counties having a small Population.
        Conversely,     we think it true that-if the Leg’islature       ig-
        nores the obvious fact that the work of county officers
        is proportionate     to population and classifies       counties
        in such way that the compensation          of officers   of a county
        having a large population is fixed far below the compen-
        satton allowed lake officer’s an small counties,          such ac-
        tion aniounts tofixing     a classificatian    which is arbitrary
        and whtch has no true relevancy to the purpose of the
        legislation  . . .” (Underscoring      ours)

             The Supreme Court used the following             language   in Miller
et al v. El Paso Co., 150 S,W.(2d) 1000:

                “Resort to population brackets for purpose of clas-
        sifying subjects for legislation   is permissible  where :.
        spread of population is broad enough to include or seg;
        regate a substantial  class and population bears some real
        relation to subject of legislation   and affords fair basis for
        classification.  . a

                ‘I. . .It has been legitimately   employed in fixing fees
        of offices in certain cases, but even then it is permissible
        only where the spread of population is substantial and is
        sufficient to include a real class with characteristics      which
        reasonably      distinguish  it from others as applied to the con-
        templated legislation,      and affords a fair basis for the clas-
        sification.”    (Underscoring     ours)

              The $upreme Court also used the following            language    in the
case   of Anderson v. wood, 152 S. W. (2d) 1084:

               “It is very well settled that a statute excepting cer-
       tain counties arbitrarily    from its operation is a ‘local or
       special’ law within the meaning of the above constitutional
       provision.     Hall v. Bell County, Tex. Civ. App., 138 S. W.
       178, affirmed by the Supreme Court, Bell County v. Hall,
       105 Tex. 558, 153 S. W. 121; Webb v. Adams, 180 Ark. 713,
       23 S. W. (2d) 617; State ex rel. Johnson v. Chicago, B. &
       Q. R. Co., 195 MO. 228, 93 S. W. 784, 113 Am. St. Rep. 661;
       6 R. C. L. 129, 59 C. J. 736.    This last proviso exempting
       counties with a population between 195,000 and 205,000      is
       a part of the original act, and is not an amendment therxo.
       Since it is void, the whole act must be declared void, be-
       cause otherwtse the court would have to apply the act to
Hon. Elmer   H. Parish,   page 5




      all counties having a population in excess of 125,000, and
      this wguld be giv’ing the act.a br.oader scope than was tn-
      tended by ,the Legislature.     The rule applicable in such
      cases is thus stated in Lewis’ Sutherland, Statutory Con-
      struction,  2d Ed. vol. 1, sec. 306, as follows:    “If, by
      striking out a void exception, proviso,    or. other restric-
      tive clause, the remainder,     by reason of its generality,
      will have a broader scope as to subject or territory,       its
      operation is not in accord with legislative     intent, and the
      whole would be affected and made void by the invalidity
      of such part..’   Substantially   the same rule is announced
      in Ruling Case Law, vol. 6, p. 129. The above rule was
      followed by this court in Texas-Louisiana       Power Co. v.
      City of Farmersville,    Tex. Civ. App., 67 S. W. (2d) 235,
      238.   See, also, James C. Davis, Director     General, v.
      George Wallace,    257 U. S. 478, 42 S. Ct. 164, 66 L. Ed.
      325..”

             For   addittonal   authorlties   see the following:

       Duclos et al v. Harris County, 263 S. W. 562;
      ,Womack v. Carson, et al, 70 S. VI’, (Zd) 416;
      Jsmeron v. Smith, 161 S. W. (2d) 520;
       Cit   of Fort Worth v. Bobbltt, 121 Tax. 14, 36 S. W.
       (2dr470,   41 S. W. (2d) 228;
       Supreme Lodge Benevolent Assn. v. Johnson, 98 Tex.          1, 81 S;W.   18;
       Smtth v. State, 49 S. W. (2d) 739;
       Randolph v, State, 46 6. W. (Zd) 484;
       Fritter v. West, 65 S. W. (2d) 414, wrtt refused;
       State v. Ball, 76 S. W. (2d) 880;
       Wood v. Maria Ind. School Dlst., 123‘S’; W. (2d) 429;
       39 Tex. Jur. p. 22.

             “Statutes are to be read in the light of attendant conditions
and the state of the law existent at the time of their enactment.”     In re
Bergeron 220 Mass.     472, 107, N. E. 1007; 25 R. C. L. 957, Section 215.
The above quoted rule was followed in Railroad Commission         v. Texas &
New Orleans R. R. Co. (Civil Appeals),     42 S. W. (2d) 1091, and Manry v.
Robison, 122 Tex. 213, 56 S. W. (2d) 438.    In the case of McBride   et al
vs. Clayton et al (Corn. App.), 166 S. W. (2d) 125, the court quoted the fol-
lowing rule from 59 Corpus Juris pi 1038 with approval:

              “All statutes are presumed tobe enactedby the leg-
      islature with full knowledge of the existing condition ,of
      the law and with reference    to it. They are therefore to be
      construed in connection and in harmony with the existing
      law and as a part of a general and uniform system of juris-
      prudence, and their meaning and effect is to be determined
Hon. Elmer         H. Parish,      page 6




         in connection not only with the common law and the
         constttutton, but also with reference  to other statutes
         Andythe declslons  of the courts.”  (Underscoring   ours)

                At the time of the enactment of Article 2326c, supra, the
shorthand reporters       in the Judicial District Courts of Bexar County
could receive a compensation         of not less than $2400.00      nor more than
$3000.00     per annum.     See Acts 1933, 43rd Legislature,       Special Laws,
pi 106, ch. 81. It will be noted that Article 2326c, supra, allows short-
hand reporters      of each Judicial District    in counties containing less
population (Tarrant County) and shorthand reporters              in each Judicial
District in counties containing a greater population (Dallas and Harris ;I
to receive a compensation        of $3000.00.    Furthermore,      the shorthand
reporters     of the 25th Judicial District could receive a compensation
of not less than $2000.00      nor more than $2700.00        at the time of the
enactment of Art. 2326~.        See Acts 1933, 43rd Legislature,        Special
Laws,     p. 79, ch. 63. Art. 2326~ allows shorthand reporters            in each
Judicial District falling within the same classification          as the 25th Ju-
dicial District to receive a compensation          of not less than $2400.00
nor more than $2700.00.         Applying the principles      of statutory construc-
tion and constitutional     law laid down in the above quoted cases to Art.
2326c, it is our opinion that the Legislature         by enacting S. B. No. 315,
Acts 1933, 43rd Legislature,        Special Laws, p. 106, ch. 81 and S. B. No.
133, Acts 1933, 43rd Legislature,        Special Laws, p. 79, ch. 63, and by
putting the exception provisions        referred to above in Art. 2326~ fixed
classifications     which were arbitrary and which had no true relevancy
to the purpose of the legislation.        Therefore,   in answer to your first
question, it is our opinion that Art. 2326c, supra, is unconstitutional
and void.

                Due to our holding herein we deem it unnecessary     to deter-
mine     the constitutionality of the other exceptions contained in Art. 2326~.

                   Art.   2326b,   V. A. C. S., is as follows:

                “The salary of the official shorthand reporter in
         each Judicial District in any county of this State which
         alone constitutes  two or more Judicial Districts,   in ad-
         dition to the compensation  for transcript   fees as pro-
         vided by law shall be $3,000.00    per annum, to be paid
         as the salary of other court reporters    are paid, out of
         the general fund of the county.”

                Art. 2326b, supra, was enacted by the 41st Legislature,        and
Art.   2326~   was enacted by the 43rd Legislature.

                   “An unconstitutional statute can have no effect to repeal
former     laws,    or parts of law by implication  since, being void, it is not
Hon. Elmer     H. Parish,    page 7




inconsistent  with such former laws,”    Sutherland’s  Statutory Construc-
tion (2d Ed.)  Vol. 1, p, 458, Section 254.  See also Galveston  & W. Ry.
Co. v. Galveston,   96 Tex. 520, 74 S. W. 537; Culberson v. Ashford,    118
Tex, 491, 18 S. W. (2d) 585, 39 Tex. Jur., p. 128, Section 65.

             Therefore,      since Art. 2326~ is unconstitutional, it is our
opinion that said article     could not and did not operate as a repeal of
Art. 2326b, V. A. C. S.

               It will be noted that Art. 2326b,      supra, applies to those
counties   which alone constitute two or more         Judicial Districts.

              The authorities       hereinabove      cited hold that the test as to
whether or not a particular        classification     contravenes     Section 56 of
Article III of our State Constitution is whether or not the classification
is based upon a real distinction,        and is a classification       with character-
istics which reasonably       distinguish it from others as applied to the
contemplated    legislation,    and afford a fair basis for the classification.
In the case of Clark v. Finley, supra, the Supreme Court recognized
that substantial differences       in populations of counties could be made a
basis of legislation    fixing salaries     on the theory that the work devolv-
ing upon an officer was in some degree proportionate                to the population.
It is our opinion that the Legislature          in fixing the classification    in
Article 2326b recognized        that the work devolving upon the shorthand
reporters   in each Judicial District in any county of this State which
alone constitutes    two or more Judicial Districts          was proportionately
greater than like officers       in counties which alone do not constitute two
or more Judicial Districts.         Therefore,     the classification    made by Ar-
ticle 2326b, supra, is based upon a real distinction and has characteris-
tics which reasonably       distinguish it from others and affords a fair ba-
sis for the classification.       Therefore,     it is our opinion that Article
2326b is constitutional      and is now in full force and effect.

              Wichita County “alone constitutes   two or more Judicial Dis-
tricts” (three), viz:  the 30th, 78th and 89th. Therefore,  the salaries
of the court reporters   in the district courts of Wichita County are con-
trolled by Art. 232613, supra.

            In the case of Greer v. Hunt County, (Corn. of Appeals),
249 S. W0 831, the Court stated the following on page 833:

              “‘The county officials clearly could not waive the
       county’s right to assert the invalidity of the order by
       paying from the county funds the salary therein provided,
       should that amount exceed the lawful commissions       of the
       treasurer.    The latter, in accepting such amount, if in
       excess of his lawful fees, could not receive any benefit
       under the void order.     He would still be bound to reim-
       burse the county for any excess over his lawful fees,
Hon. Elmer    H. Parish,   page 8




        and could not defeat their recovery.        Under these circum-
         stances the acceptance     of less than he was entitled to
        ought not as a matter of law to preclude him from after-
        w.ards demanding the balance to which he was legally en-
        titled, for the relinquishment     of which the county paid,
        and he received no consideration        whatever.  The county
        owed him absolutely     a fixed and definite amount, towhich
        there was no defense, and concerning which there was no
        legal controversy.     We think the principle of law applies
        here that a debt fixed in amount and absolutely payable
        cannot be discharged     by payment by the debtor and accep-
        tance by the creditor of a less amount, and that the pay-
        ment and acceptance      of a less amount furnishes no con-
         sideration whatever for the relinquishment       of the balance
        owing. * * *” (Underscoring        ours)

             It was also held in the case     of Nacogdoches    County v. Winder,
140 S. W. (2d) 972, error refused:

                “* * * The legislature   having prescribed   the mini-
        mum amount of salary (the official earnings in 1935) and
        that being shown to have been $3,286.16,      the commissioners’
        court did not have the authority to ignore this statutory pro-
        vision of minimum     salary and fix the salary at $3,000.      The
        provisions   of the statute authorizing  the comm.issioners’
        court to fix the salary at any sum not less than a certain
        minimum,     and not more than a certain maximum,        are man-
        datory, and could not be ignored by the members         of the
        court at their discretion.     The order fixing appellee’s    sal-
        ary at $3,000 was without authority, and so void.”

               See also Nacogdoches County v. Jenkins, 140 S. W. (2d) 901,
error   refused, and Stephens County v. Hayes, 284 S. W. 225.

              Article 2326b, supra, fixed the salaries     of the court report-
ers at $3,000.00.    In view of the foregoing authorities,    it is the opinion
of this department that the court reporters     of the district courts of
Wichita County did not waive their right to collect the difference       between
$2,700.00   paid and $3,000.00   set by Article 2326b, and they are now en-
titled to receive the difference   as unpaid salary.

              Heretofore,   this department has not been called upon to pass
upon the constitutionality    of Article 2326~. although certain opinions have
been written concerning the interpretation      of certain provisions of said
article.  In view of our holding herein, we hereby overrule our Opinions
Nos. O-6227,    O-5889,   O-5265 and O-3643 insofar as the holdings therein
..


     Hon. Elmer     H. Parish,     page 9




     conflict   with the holding    of this opinion.

                                                   Yours   very   truly,

                                        ATTORNEYGENERALOF                  TEXAS




                                         By    /s/J.  C Davis,     Jr.
                                               J. C. Davis, Jr.
                                                                  Assistant




                                         By   /s/ John Reeves
                                              John Reeves

     JR:LJ

     APPROVED    DEC. 5, 1945
     /s/ Carlos C. Ashley
     FIRST ASSISTANT
     ATTORNEYGENERAL
