Honorable T./M. Trlmble
First Assistant
State Superintendent of Public Instruction
Austin, Texas
Dear Sir:                    Opinion No. O-6542
                             Re: Constitutionality of Article
                                  27,OOD,V.A.C.S.
          We are in receipt of your request for opinion dated
April 19~;1945. As we construe your request you desire our
opinion as to the constitutionality of the hereinafter quoted
portion of Article 2700 D, Section 2, Vernon's Annotated Texas
Civil Statutes, towlt:
          ,,
           . . . and the commissioners' courts of the
    countles.having a population of not less than
    100,000 nor more than 1 0,000 may expend out of
    the general fund of sai3)counties any sums not
    exceeding the sum of $1200 per annum, to defray
    the expenses incurred by said county superlnten-
    dent which said sum or any part thereof shall be
    paid by paid commissioners upon certificate of
    said superintendent that the expenses have been
    lncurrediin the discharge of his duties as such
    superintendent."
          Said above quoted statutory provision Is a portion of
S.B. 268, 4lst Leg., Reg. Session, 1929. Said S.B. 268 reads
as follows:
            "COUNTY SUPERINTERDENT - SALARY
    S.B. No. 268             Chapter 148.
            "An Act to fix the salary of the Superin-
                tendent of Public Instruction in each
                County in Texas, having a population
                of not less than 100,000 nor more than
                150,000 according to the last Federal
                Census; providing for office expenses
                in such Counties; repealing all laws
                and parts of laws in conflict and de-
                claring an emergency.
                                                             .,’   _




Hon. T. M. Trimble - page 2        O-6542


"BE IT ENACTED BY TEE LECISLATBBE OF THE STATE OF TEXAS:
           "Section 1. That the salary of the County
    Superintendent of Public Instruction of each County
    in Texas, having a population of not less than
    100,000 nor more than 150,000 according to the
    last Federal Census, shall.'from:
                                    and after passage
    of this Act be not less'than the sum of $2,800.00
    per annum, or more than the sum of $3,800,00 per
    annum.
          "Sec. 2. In making the annual per capita
    apportionment to the schools of the Counties having
    a pop?llationof not less than 100,000 and not more
    thaz 150,000 the County School Trustees shall also
    make ani annual allowance out of the State and :'.
    County Available Funds for the~payment of the salary
    of the Superintendent of Public Instruction not less
    than $2,800.00nor more than $3,800.00 and the
    Commissioner's Courts of the Counties having a pop-
    ulation of not less than 100,000 nor more than
    150,,000may expend 'out.of the general fund of said
    counties any sums not exceeding the sum of $1200
    per annum, to defray the expenses incurred by said
    County Superintendent which said sum or any part
    thereof shall be pafd by said Commissioners upon
    certificate of sald~Superintendent that the expenses
    have been incurred in the discharge of his duties
    as such superintendent.
          "Sec. 3. ~3aid salary to be paid monthly
   upon the order of the county school trusteed, PFOY
   vided that said salary to the Superintendent of
   public  instructionfor the month of September shall
   not be paid until the SuperFntendent shall have
   presented a receipt or certificate from the State
   Superintendent of Public Instruction showing that
   he has made all reports required of him; that the
   expenses provided for herein shall be paid monthly
   by the County Treasurer on the order of the Commls-
   sloner's Court.
          “Set o 4. All laws and parts of laws in con-
    flict herewith are hereby repealed.
          "Sec. 5. The fact that the present salaries
    of the.County Superintendents of Public Instruction
   ,ofCountles having a population of not less than
    100,000 nor more than 150,000 are inadequate and out
    of proportion to the labor and responsibility attached
Hon. T. M. Trimble - page 3            o-6542


    to the office, and that there Is no adequate pro-
    vision for the payment of the necessary expenses
    of the County Superintendent In such Counties,
    creates an emergency and an tmpratlve   public
    necessity that the constitutional rule requiring
    bills to be read on three several days be sus-
    pended, andsaid rule is hereby suspended, and
    this Act shall take effect and be in force from
    and after its passage and it is so enacted.
            "Effective March 9, 1929."
          The emergency clause used the plural terms "County
Superintendents" and 'counties" as coming within the population
brackets of the Bill; whereas, in truth and in fact, only one
county, towit, El Paso County, Texas, came withIn the population
brackets set out In the bill, according to the 1920 Federal
census, the last preceding Federal census prior to the enactment
of the Bill. Under the 1930 Federal ,censusEl Paso County and
Jefferson County came within the population brackets of the Act.
Under the 1940 Federal census El Paso, Jefferson, Hldalgo,~~
McLennan and Travis Counties came within the population brackets
set out in said Act.
          Article 2700, Vernon's Annotated Texas Civil Statutes,
reads as follows:
            "Art. 2700.   Salary of the County
                          Superintendent
         "Section 1. The elective County Superinten-
   dent shall receive from the Available School Fund
   of their respective counties annual salaries based
   on the scholastic population of such counties as
   follows:
            Population               Amount
    3,000   or less                  4;,;“0; .g
    3,001   to 4,000
    4,001   to 5,000                  2'2oo:oo
    5,001   to 6,000                  2'400.00
    6,001   to 7,000                  2:600.00
    7,001   to 8,000                  2.800.00
    8,001   to 9,000
    9,001   to 12,000
   12,001   to 15,000
   15,001   to 30,000
   30,001   to 40,000
   40,001   to 50,000                 4;200.00
   50,001   and over                  4,800.oo
Hon. T. M. Trlmble - page 4        o-6542


         "~Provldea,however, in counties having more
   than three thousand, five hundred (3,500) scholas-
   tics and less than eight thousand and one (8,001)
   scholastics, where no supervisor is employed and
   where the total expense for office assistants does
   not exceed Eighteen Hundred Dollars ($1800)per
   annum, the salary of the County Superintendent may
   be set at a sum not to exceed Three Thousand Dol-
   lars ($3,000) per annum by action of the County
   Board of Trustees.
          "Inmaking the annual budget for County
   Administration expense the County School Trustees
    shall make allowance out of the State Available
   School Fund for salary and expenses of the office
    of the County Superintendent and the same shall
   be determined by the resident scholastic population
    of the county. It shall be the duty of the County
   Board of Trustees to file the budget for County
   Administration expense with the State Department
    of Education on or before September first of each
    scholastic year, the budget to be approved and
    certified to by the President of the County Board
   of Education and attested to by the County Super-
    intendent. The compensation herein provided for
    shall be paid monthly upon the order of the County
   School Trustees ; provided that the salary for the
   month of September shall not be paid until the
    County Superintendent presents a receipt from the
   State Superintendent showing that he has made all
   reports required of him. The County Superintendent,
   with the approval and the confirmation of the
    County Board of Education, may employ a competent
   asssistant to the County Superintendent at an
   annual salary not to exceed Two Thousand Dollars
    ($2,000) and may also employ such other assistants
   as necessary provided the aggregate amount of the
    salaries of such other assistants shall not ex-
   ceed Twelve Hundred Dollars ($1200) annually;
   provided that counties having a population of more
   than one hundred and twenty-five thousand (125,000)
   according to the last Federal Census may employ a
   competent assistant to the County Superintendent
   at an annual salary not to exceed Twenty-eight
   Hundred Dollars ($2800) and may also employ such
    other assistants as necessary provided the aggregate
   amount of the salaries of such other assistants
   shall not exceed Eighteen Hundred Dollars ($1800)
   'annually; and the County Board of Education.may make
   further provisions as it deems necessary for office
Bon. T. M. Trlmble - Page 5        0 -6542


    and traveling expense of the County Superintendent;
    provided that expenditures for office and traveling
    expenses of the County Superintendent shall not be
    less than Three Hundred Dollars ($300) and not more
    than Eight Hundred Dollars ($800) per annum, such ex-
    pense shall first be proven by affidavit therefor,
    and said Board is hereby authorized to fix the salary
    of such assistants and pay same out of the same funds
    from which the salary and expenses of the County
    Superintendent are paid.
         "Sec. 2. The County Superintendent of Public
   Instruction may, with the approval of the County
   Board of Education, employ one or more school super-
   visors to assist in planning, outlining, and super-
   vising the work of the Public Free Schools in the
   county which Is under the supervision of the County
   Superintendent of Public Instruction. Said supervi-
   sor or supervisors shall at all times work under the
   supervision and direction of the County Superinten-
   dent of Public Instruction, as other assistants are
   required to do, and must have evidence of proficiency
   in rural school supervlsion and mst be the holder
   of at least a Bachelor of Science Degree or higher.
   Such supervisor or supervisors may receive a salary
   of not to exceed Two Thousand Dollars ($2,000) per
   annum, to be paid out of the same funds and in the
   same manner as that of the County Superintendent of
   Public Instruction and other assistants.
         "Sec. 3. It shall be the duty of the State
   Superintendent to remit to the depository banks of
   each of the respective counties the amount of the
   State Available School Fund provided in the budget
   of each county, remittance to be made in October and
   February of each pcholastlc year, in equal amount.
         "Sec. 4. The State Superintendent of Public
   Instruction is hereby authorized to issue and trans-
   mit to county officials all instructions necessary
   for the proper observance and administration of this
   Act.
          "Sec. 5. All General and Special Laws in con-
    flict herewith are hereby repealed except such laws
    as provlde for a part of the office expense to be
    paid out of the general revenue of the county, except
    that the repealing clause shall not apply to any
    county that levies a special tax for the maintenance
    of the office of the County Superintendent In whole
Hon. T. M. Trimble - page 6         o-6542


    or in part. As amended acts, 1941, 47th Leg. p.
    ;;c&,;hi.!37; Acts 1943, 48th Leg. p. 697, ch.
       ,
          Article 2700, V.A.T.C.S., supra, clearly repeals the
salary provisions of S.B. 268, supra (codified as Article 27ooD,
V.A.T.C.S.). However, Section 5 of Article 2700, supra, clearly
states that the repealing clause is not applicable to~ang laws
which provide for a part of the office expense to be paid out
of the general revenue of the county.
          There are many statutes, too numerous to serve any
useful purpose In quoting here, or referring to specifically
here, of very narrow population brackets, and of varied popula-
tion brackets, dealing with and purportedly authorizing the
Commissioners' CouPts to expend county funds from the general
revenue to assist in paying the expenses of county superinten-
dents. Undoubtedly a very large portion of same are unconstl~-
tutlonal as being local or special laws in violation of Article
III, Section 56 of our State Constitution. The amounts allow;,
able range from $200.00, $300.00, $600.00, $900.00 to $1~;200.00
per annum. When viewed as a whole there seems to be no real
and substantial basis for the varlous~classifications made.
(~Withone exception, towit, Art. 2700a referred to in 3 infra.)
For example, we will point out a few examples:
              Art. 27OOd-28 V.A.T.C.S    applicable to,countles
withinpop~iation brackets ig7 000 to iG8 000 ana 32 400 to
32,800; amount payable by Commissioners’ Court to Co&ty~Super-
lntendent out of the general fund for expenses not to exceed
$300.00 per annum.
          2~. Art. 2700b, V.A.T.C.S., applicable to counties of
not less than 60,000 and not more than 73,000; amount payalbe
by Commissioners' Court to County Superintendent out of the gen-
eral fund for expenses not to exceed $600.00 per annum.

          3. Art. 2700a, V.A.T.C.S., applicable to counties of
more than 210,000; amount payable by Commissioners' Court to
County Superintendents out of the general fund for traveling ex-
penses not to exceed $900.00 per annum. (This article is pro-
bably constitutional).
          4. Art. 2700a, V.A.T.C.S., the article under consla-
eration here, which allows the top amount of not to exceed
$1200.00 per annum for such expenses.
          There is no allowance whatever for county superinten-
dent's expenses to be paid from the county general revenue fund
for counties between the brackets of 150,000 (the top bracket of
Hon. T. M. Trimble - Page 7       O-6542



Art. 2700d) and the bracket of 210,000 (the bottom bracket of
Art. 2700a, V.A.T.C.S.) with the lone exception of the bracket
In Art. 2700d, V.A.T.C.S. (1 7,000 to 198,000 which allows a
maximm of $600.00 per annum7 .
          Thus we see the resulting hodge podge of laws enacted
upon the subject under discussion. Counties having larger popl-
lation than 150,000 are clearly discriminated against.
          The case of Bexar County v. Tynan, 97 S.W. (2d) 467
holds, among other things:
          "1 . Act reducing salaries of officers in
    counties of over 290,000 and less than 310,000
    population purports on its face to be a general
    law and not a local law. (Vernon's Ann. Civ. St.
    art. 3912b: Const. Art. 3, 856, 57.
             "2 . Act reducing salaries of officers in
    counties of over 290,000 and less than 310,000
    population was not rendered a 'special' or 'local
    law' because it applied to only one county in state
    at time of passage, since it was not so framed as
    to exclude probability that it would apply to other
    counties     in future (Vernon's Ann. Civ. St. Art.
    3912b; Const. art. 3, Sec. 56, 57).
         "3 . Legislature may, on proper and reasonable
   classification, enact general law, which at time of
   enactment Is applicable to only one county provided
   application is not so inflexibly fixed as to prevent
   It ever being applicable to other counties.
         "4 . Legislature may classify counties on
   basis of population for purpose of fixing compen-
   sation of county and precinct officers but class-
   lflcation must be based on real distinction and
   must not be arbitrary device to give what Is in
   substance a local or special law, the form of gen-
   eral law.
         "5 . Courts in determining whether a law is
   public, general, special, or local will look to
   its substance and practical operation rather than
   to Its title, form, phraseology, since otherwise
   prohibition of fundamental law against special leg-
   islation would be nugatory.
          "6 . To justify placing of one county In very
    limited and restricted classification by Legislature,
Hon. T. M. Trimble - page 8        O-6542


    there must be.some reasonable relation between
    situation of counties classified and purposes
    and objects to be obtained, and classification
    cannot be adopted arbitrarily on ground which
    has no foundation in difference of situation or
    circumstance of counties placed in different
    classes.
          "7 . Act reducing salaries of officers in
    counties of over 290,000 and less than 310,000
    population held unreasonable and arbitrary In its
    classificationand void as a 'special law', where
    it applied only to Bexar county, and where maxl-
    mm compensation for county officers was reduced
    below that in counties of 37,500 and to less than
    half compensation allowed in other counties of
    more than 150,000 (Vernon's Ann. Civ. St. Art.
    391213;Acts 1930, 41s.tLeg. 4th called Sess. C.
    20; Const. art. 3, Sets. 56, 57).

          “8 . Substantial differences in population
    of county can be made basis of leglslatlon fixing
    compensation of county officers on theory that
    work devolving on office    is in some degree pro-
    portionate to population of county.
          "9 . Where Legislature Ignores obvious facts
    that work of county officers is proportionate to
    population and classifies counties In such way
    that compensation of officers of counties having
    large population is fixed far below compensation
    allowed like officers In small counties, classifl-
    cation is arbitrary and has no true relevancy to
    purpose of legislation."
          We quote from the case of Miller v. El Paso County
(Texas Supreme Court) 150 S.W. (2) 1000, as follows:
          "Section 56, Article III of the State Con-
    stitution, Vernon's App. St.,.reads, in part,
    as follows:
          "'sec. 56.  The Legislature shall not, ex-
    cept as otherwise provided in this Constitution,
    pass any local or special law, authorizing:
          ,I
           0 . e e .
          "'Regulation the affairs of counti'es,cities,
    towns, wards or schoo,ldistricts,
Hon. T. M. Trimble - page 9        o-6542




          "'Creating offices, or prescribing the
    powers and duties of officers, in counties,
    cities, towns, election or school districts;
          91I

          "And in all other cases where a general law
    can be made applicable, no local, or special law
    shall be enacted. . . .I
         "The purpose of this constitutional Fnhibi-
   tion against the enactment of local or special
   laws Is a wholesome one. It is intended to pre-
   vent the granting of special privileges and to
   secure uniformity of law throughout the State as
   far as possible. It is said that at an early
   period in many of the states the practice of
   enacting special and local laws became 'an effi-
   cient means for the easy enactment of laws for
   the advancement of personal rather than public in-
   terests, and encouraged the reprehensible practice
   of trading and 'logrolling'. It was for the sup-
   pression of such practices that such a provision
   was adopted in this and many of the other states
   of the Union.
         "Notwithstanding the above constitutional
   provision, the courts recognize in the Legis,la-
   ture a rather broad power to make classifications
   for legislative purposes and to enact laws for
   the regulation thereof, even though such leglsla-
   tlon ma be ap licable on1 to a particular class
   or, in Y act, af feet only tK e Inhabitants of a
   particular locality; but such legislation xmst
   be intended to apply uniformly to all who may
   come within the classification designated in the
   Act, and the classification must be broad enough to
   include a substantial class and mst be based on
   characteristics legitimately distinguishing such
   class from others with respect to the public pur-
   pose sought to be accomplished by the proposed
   legislation. In other words, there must be a
   substantial reason for the classification. It
   must not be a mere arbitrary device res,orted,to
   for the purpose of giving what Is, In fact, a
   local law the appearanc'eof a general law. city
   of Fort Worth v. Bobbltt, 121 Tex; 14, 36 S.W.
   2d 470, 41 S.W. 2d 228; Bexar County v. Tynan, 128
                                                         .




Hon. T. M. Trimble - page 10        O-6542


   Tex. 223, 97 S.W. 2d. 467; Clark v. Finley, Comp-
   troller, 93 Tex..171, 54 S.W. 343; Supreme Lodge
   UnLted Benevolent Ass'n v. Johnson, 98 Tex. 1, 81
   S.W. 18; Smith v, State, 120 Tex. Cr. R. 431, 49
   S.W. 2d 739; Randolph v. State, 117 Tex. Cr. R.
   80, 36 S.W. 2d 484; Fritter v. West, Tex. Civ. App.
   65 S.W. 2d 414, writ refused; State v. Hall, Tex.
   Clv. App. 76 S.W. 2d 880; Wood v. Marfa Ind-.School
   Dlst. Tex. Civ. App. 123 S.W. 2d 429. AS said in
   Leonard v. Road Maintenance District No. 1, 187
   Ark. 599, 61 S.W. 2d 70, 71: 'The rule Is that a
   classification 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 reasonable relation between the situation of
   munlcipalltles classified and the purposes and
   objects to be attained. There must be something
    ...... which in.some reasonable degree accounts
   for the division Into classes.' . . . .
          "We are therefore met at the outset with a
    law which, under facts well known at the time of
    its adoption, was applicable only to a single
    county. Clearly then it Is a local law and must
    fall as such, unless it can be fairly said that
    the class so segregated by the Act Is a substan-
    tial class and has characteristics legitimately
    distinguishing if from the remainder of the State
    so as to require legislation peculiar thereto.
    In this instance the classLflcation is made to
    rest entirely on the population of the county and
    a city therein. Resort to population brackets
    for the purpose of Classifying subjects for legis-
    lation is permissible where the spread of popu-
    lation is broad enough to Include or segregate a
    substantial class, and where the population bears
    some real relation to the subject of 1eglslatiOn
    and affords a fair basis for the classification.
    It has been legltlmat8ly employed in fixing fees
    of offices in certain cases Clark v, Finley,
    Comptroller, 93 Tex. 171, 178 54 S.W. 343) but
    even then it Is permissible o;ly where the s=ad
    of population Is substantial and is sufficient
    to 1nClUde a real class with characteristics which
    reasonably distinguish it from others as applied
    to the contemplated legislation, Bnd affords a
    fair basis for the classification. Bexar County
    v. Tynan, 128 Tex. 223, 97 S.W. 2d. w
    (Underscoring ours).
Hon. T. M. Trimble - page 11         O-6542



          Answering your question, we hold the provisions of
Article 2700d, quoted in your letter, to be vold and unconsti-
tutional, as being a local or special law in violation of Article
III, Section 56 of our State Constitution. It follows, there-
fore, that the Commissioners' Court of El Paso County is not
authorized to pay out any funds of the general revenue of the
countg~to the County Superintendent for expenses under said
void Act.
                               Yours very truly
                          ATTORNEY GENERAL OF TEXAS
                               By s/Wm. J. Fanning
                                    Wm. J. ~Fanning
                                    Assistant
WJF:bt:wc
APPROVED MAY 5, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman
