     OFFICE   OF THE    ATTORNEY     GENERAL   OF TEXAS

                            AUSTIN




ion02able Charles   :‘. ;:%iEiiill
county ;dAtor
iip
  ton county
.?ankin,Texas
Sear Sir:




opinion of this depa
as follows:


     ion on Sena                               to Co ivith
     Comaissi3ners




                         ban 3 persons per square :?il~~
                                                       of
                          lg the Comissimers   are drawing


          "Please rush this opinim ell you 2o;lsiblycan
     as I must rely on it in me of IU;~major perforinances.
     1 would appreciate your kindness ir,wiring me col-
     lect if Lilyour opinion the above i;efitimedlaw is
     found to be unconstitutionsl.g*
'HonorableCharles F. Herohill, Page 2


          Senate Yill No. 213, Acts of the 47th Legislature,
Zetular Session, including the caption, reads as follows:
     tc5.3. ;~yoe
                213

          Y'AnAct providi, for compensation to be
               paid County Commissioners for their
               services as 3X-officio >oad Commis-
               sioners; providing for reimbursement
               of County Commissioners for the use
               b::such Commission%rc of their yer-
               sonal automobiles in travelins ln
               the discharge of their duties bs;Ex-
               officko iioa:;
                            ComLssioners; and limit-
               ing the application of this :;ctto
               counties having an assessed valuation
               of not less than Twenty Killion
               ($20.000.000.00) Dollars and a popu-
               lation of not more than three (3)
               persons per square mile; and declar-
               igg an emergwcy.
    "BE IT ENACTED BY THE LEGISINJ%JREOF THE STATE OF

         "Section 1. Each County Comissionsr acting
    as Road Commissioner and faithfully discharging the
    duti6s imposed upon himas such by law or by the
    Commissioners* Court, may, by order of the Commis-
    sioners' Court, b6 allowed, as comppensationfor
    such services in addition to his salary as such
    County Gommis$+.onernot to 6XC66d the sum of One
    Hundrsd ($100.00) Dollars par month, to b6 paid
    monthly out of the .boadand &ridge l!Imdof the County.
         "SEC. 2. The Cojnmissioners'Court of such
    Counties may allow the Commissioners using their
    psrsonal aUtOmobil6s for traveling in the discharge
    of their duties as Road COm.i.SSiOn6rSnot to excstd
    Four (4) Csnts psr mile actually and nscessarily
    traveled by said CornmisSionerin his personal car
    in the discharge of such dutias, said amount to be
    paid out of the Road and Bridge Fund of the Counties.
    An account for such expsnses Shall be submittsd by
Honorable Charlss 3'.Hemphill, Page 3


     each Commissioner monthly, and no such account shall
     be approved by the Commissioners' Court unless the
     Commissioner presenting said account shall make oath
     as to the number of miles actually and necessarily
     traveled by him in his personal car in discharging
     his duties as Road Commissioner, and that the account
     presented by him is just, due, end unpaid.
          "Sec. 3. The,provisions of this Act shall ap-
     ply only to Counties haviug an assessed valuatinn
     of not less than Twenty Million ($20,000,000.00)
     Dollars and a populaticn of not more than three (3)
     persons per square mile.
          "Sec. L. The fact that the statutes now in
     force fixing the salaries and compensation of Coun-
     ty Commissioners fix inadequate compensation for
     the said Commissioners of said Counties, because of
     extra responsibility imposed on the County Commis-
     sioners of those Counties due to the size and valu-
     ation of the Counties and the large amount of County
     maintained roads in said Counties creates an emer-
     gency and a public necessity requiring the suspen-
     sion of the Constit,utionalRule providing that bills
     shall be read on three several days in each House
     and the same is hereby suspended and this Act shall
     take effect from and after its passage, and it is
     so enacted."
          After a careful search of the statutes we fa,ilto
find any statute imposing added and new duties upon the Coun-
ty Commissioners of Uptoh County not imposed by ganeral law.
Senate Bill No. 213, supra, does not impose added and new
duties upon the County Commissioners not imposed by general
yi&for which it undertakes to provide additional compensa-
       w6 think that the abovementioned act was enacted by
the legislature without any intention of constituting the
same a local road law for the maintenance of public road and
highways in Upton County. Sufficient proof that it was not
intended as a special road law for Upton County, as author-
ized by Section 9, Artiale VIII of the State Constitution,
is the fact that it was 'not specifically enacted as such. If
it had been the desire, pugpose and intention of the Legisla-
ture to pass a special road law for Upton County, it could
have easily manifested same by passing it as such.
:




    Honorable Charles F. Hemphill, Page .!+


              Section 56, Article 3, of the State Constitution
    reads in part as follows:.
             "Section 56. The Legislature shall not, ex-
        cept as otherwise provided in this Constitution,
        pass any local or special law, authorizing: . . .
        regulating the affa-irsof -zOuntisS, Cities, town@,
        wards or school districts. . . . and in all other
        cases where a general lawcan be made applicable,
        no local or special law shall be enacted; . . ."
              Referring to the above provisions of Article:3 of
    the Constitution, it is~stated in the case of Miller v. El
    Paso County, 150 S. W. (2d) 1000
             "The purpose of this Constitutional inhibition
        against the enactment of local or special laws is
        a wholesome one. It is intended to prevent the
        granting of special privileges and to secure uni-
        formity of law throughout the State as fan as pos-
        sible. It is said that at an early period in many
        of the states the practice of enacting special and
        local laws became *an efficient means for the easy
        enactment of laws for the advancement of personal
        rather than public interests, and encouraged the
        reprehensible practice of trading and wlogrollilig".1
        It was for the suppression of such practices that
        such a provision was adopted in this and many of
        the other states of the Union.
             *Notwithstanding the above constitutional pro-
        vision, the courts recognize in the Legislature a
        rather broad power to make classifications for le-
        gislative purposes and to enact laws for the rsgu-
        latinn thereof, even though such legislation may
        be applicable only to a particular class or? in
        fact, affect only the inhabitants of a particular
        locality; but such legislation must be intended
        to apply uniformly to all who may come within the
        classification designated in the Act, and the class-
        ification must be broad enough to include a substen-
        tial class and must be based on characteristics
        legitimately distinguishing such class from others
        with respect to the public purpose sought to be
        accomplished by the proposed legislation. In other
Honorable Charles F. Hemphill, Fage   5

     words there must be a substantial reason for the
     classification. It must not be a mere arbitrary
     device resorted to for the purpose of giving what
     is, in fact, a local law the appearance of a gen-
     eral law. ... *The rule is that a classifica-
     tion cannot be adopted arbitrarily upon a ground
     which has no foundation in difference of situation
     or circumstances of the municipalities placed in
     the different classes. There must be some reason-
     able relation between the situation of ausicipal-
     ities classified anidthe purposes and objects to
     be attained. There must be something . . . which
     in some reasonable degree accounts for the division
     into classes.'n
          It will be noted that the Act in questicn by its
terms is made applicable only ih those counties having a
population of not more than three persons per square mile
and having an assessed valuation of not less than $20.,000,000.
The peculiar limitaions employed by the Legislature in this
instance to segregate the class to be affected by the Legis-
lation not only bears no substantial relation to the object
sought to be accomplished by the Act, but the purported class
attempted to be so segregated is, in fact, not a class dis:
tinct in any substantial manner from others in this State.
There is nothing peculiar about a county having a population
of not more than three persons per s uare mile and having an
assessed valuatinn of not less than %.20,000,000 that marks
it a suitable and peculiar field for the expending of public
funds for the purposes mentioned in the Act, as distinguished
from other counties having substantially the same valuation
and population. The slight variation between the po.nulation
and valuation mentioned in the Act does not distingu!ishcit
in any manner from other counties having substantially the
same population and aSSeSS6d valuation that is germane to the
purpose of the particular Legislation. In other words, what-
ever difference there is in population and assessed valuation
dO6S not appear to be material to the object sought to be ac-
complished. After having carefully considered the matter, we
are convinced that the attempted classification is unreason-
able and bears no relation to the object sought to be accmm-
plished by the Act and that as a consequence the Act is uhcon-
stitutional and therefore void.
          In viea of the Miller case, supra, and the cese of
Jameson et al. v. Smith, 161 S.W. (2d),52O, and the authori-
ties cited in these cases, it is the opinion of this department,
Honorable Charles F. Hemphill, Page 6


as above stated, that the Act under consideration is uncon-
stitutional and therefore void. Therefore, it is our further
opinion that the County Commissioners are not entitled to
any additional compensation under the abovementioned Act nor
are they entitled to any traveling expenses unde,rthe same.
The CountyCommissioners are only entitled to the compensa-
tion as provided by    eneral law (Article 2350, Vernon's Anno-
tated Civil Statutes‘i .
          Trusting that the foregoing fully answers your in-
quiry, we are
                                       Yours very truly
                                 ATTORNEY GENERAL OF T2X.Q


                                 BY     s
                                            Ardell William
                                                  Assistant
AK:mp

          APPROV3:;)
                   OCT 5, 1942
          s   Gerald C. Mann
         ATTORKXY GFNERAL OF TEXAS




                                               '~ APPROVED
                                                  OPINION
                                                 COMAWlTEE
                                                 BY BM3
                                                 CBA-
