Untitled Texas Attorney General Opinion ( 1946 )

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OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorab1e.T.M. Trlmble
First Assistant State Superintendent
Department a? l3dlloatl.on
Austin, Texas
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'sea.'16~-b .Aothlng ~in'tblsAot, emept :;
~imti- a t0 3.2,.IM~US~, shall app4:to ay
:t Honorable T. H. Trimble, Page 2
Independentsohool district having vIthIn its
litnltsa ofty containinga population or 375,000
Inhabitantsor more according to the*last pre-
ceding 0~ any future Federal Census.
We do not deem It necessary to quote the entire
Act. surrice It to say that a quick reading or It vi11 reflsot
that the teeth or the act are found In Sections 1 to 8 and 13
through.l6-b,and not In Sections 8 to 12, lncluslve, the only
sections lert applicable to an Independentschool district
having in Its llmlts a city vith a populationof 375,000 or
more. According to the last precedingFederal Census, Houston
is the only city In Texas that has such population and there-
fore the Eouston IndependentSchool Dlstrlot vould be the only
exemption under the Act.
According to the last preceding Federal Census,
vhIch vas taken in 1940, the City of San Antonio had a population
or 335,000; the City or Dallaa 365,000; the City or Houston
445,000. Ap other city ln the State had a population in 1940
approximatingthese figures. The next Federal Census vi11 not
be taken until 1950, If then. Therefore,no Independent school.
district other than the Rouston'DIstrIotoould qualify under
the exemption clause until 1950 In any event.
Thla department has vrltten aeveral opinions on
strikingly slmllar statutes and has oonsistentlyheld them un-
oonatItutIona1. The great velght of authority, and certainly
the courts of this State bave been In harmony In striking dovn
legislation of this kind and character. One of the most recent
opInIons emanating from this office In vhich ve ffnd a similar
statute under attack vas approved October 19, 1945 (Opinion
No. O-6846). Here anothsr Act of the 49th Legislature, i.e.
H. B. 555, vaa vleved as unconstitutionaland void:, We enclose
.a copy or the opinion for your attention.
In the case of Anderson, County Judge et al v.
Wood, a Supreme Court case d&oIded,ln May 1941 and reported In
152 S. W. (26) 1084, ve find a almilar titatute
under attack.
Quoting from the oplnlon vrltten by OhLef Justice Alexander, vi
find the rollovlng vordlngr
"The next point relates to the que%tIon 0r
vho bar the right to employ and diroharge county traffic
Ronorable T. PI.Trlmble, Page 3
orrioers. Both parties seem to rely on Aota 1935,
44th Leg., p. 711, oh. 306, Vernon*s Annotated
Civil Statut.es,Art. 6699b, for their authority to
tippointthe traffic offioers in question. Said aot
r'eadsIn part as follow:
"'Section 1. The CommlsslonersCourt
of each oounty, aotlng 3.noonjunotlonvith
the sherLff, may employ not mom than el ht
(8) regular deputies nor more than four 74)
addl.tionaldeputies for spealal emergenoy
to aid said regular deputies, to be known
:as County Traffla Oifloers to enforce the
'.BlghvayLsvs of'this State regulating the
use of the pub110 Highways by motor and
other vehloles.
“v* * l e l
"'Sea. 4. The provlslonf~ofthis Act
shall apply:to all oountles In this Stste
having a population of'more than one hundred
and tventy-five thousand (125,OOO)c:aaaordLng
to the preoedlng Federal Census. Provided,
this Aot shall not apply to oountles of not
less than one hundred and ninety-five thousand
(195,000)population, nor more than two hund-
red and five thousand (205,000)population
aoaordlng to the last preaedlng Federal Census.'
“(6) Upon a thorough InvestigationveS``I``;6
vlnced that thla aot Is uMoMtitutional.
Artiole III, of the State Constitution, reads in pert'
as rollova:
"'Sea. 56. The Legislature shall not, .
exoept as otherwise provided In this Con-
stitutlon, pass any looal w speoIa1 lav,
authorizing:
"~Regulatingthe airairs of aounties,
oltlea, tows, vards OF sohool dlotrlotst
Honorable T. M. Trlmble, Page 4
“@Creating oiflces, or presarlblng
the powers and duties of orrloera, In ooun-
ties, aities, towns, eleo.tIonor sohool
e dlstrlats;
"a*****
"'And In all other cases vhcre a
general law oan be made appliaable, no
local or speoIa1 lav shall be enaoted;
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"It will be noted that the first sentence of
Section 4 of the aat here under considerationpro-
vides: 'The provisions of this Aat shall apply to
all counties in this.Statehaving a population of
more than one hundred and tventy-five thousand
(l25,OOO)according to the preoedlngFederal Census.1
"IS this were the only llmltatlon on the applloa-
tlon of the act, its validity could be sustained as a
general lav on the ground that the claaslflaatlonis
broad enough to include a substantlal02888, and the
necessity for olasslfIaatlonon the basis employed
seems to bear some real and fair relation to the sub-
jest ai the legislation. Clark v. Finley, Comptroller,
93 Tex. 171 178, 54 S. W. 343. But the seoond sentence
or Seotlon 4 provides: @Provided,this Aot shall not
apply to counties of not less than one hundred and nlnety-
five thousand (195,000)po ulatlon nor more than tvo
205,OOOj population aaoordlng to
hundred and five thousand 'i
the last preoedlng Federal Census.'
'An examination of the 1930 Federal oensus discloses
that Tarrant County Is the only oounty in the State bav-
ing a population la excess of 125,000 that.18 exaludea
from the provlslons of the aat. We oan conceive of no
reason uhy tha Commissionerst courts or counties with a
population oS less than 195,000 and those with populations
in exQess of.205,000 should have a right to employ county
traffic ofrlaers,while tha ConunIssloners~ Court of Tar-
rant county, swh oounty tivIng a population oS between
195,000 and 205,000, should not have swh right. The
,.!,
Honorable T. M.~TrImble, Page 5
necessity ror the employment of traffic offloers in
Tarrant County appears to be as urgent as in counties
of lesser population. The olassIPlaatlonappenrs to
be an arbitrary one bearing no relation to.the subjeat
of legIelatlon,and as a consequenoe this particular
seotlon of the eat la void as a local or specie1 law.
Miller v. County of El Paso, Tex. Sup., 150 3. W. 2d
1000 (not yet reported in State Reports); Clty of Fort
Worth v. Bobbitt, 121 Tex. 14, 36 S. W. 2d 470, 41 S. W.
2d 228; Bexar.County v. Tynan, 128 Tex. 223, 97 S,.W.
26 467.
"17) It la very vell settled that a statute ex-
cepting oertsln counties arbitrarily from its oparatlon
Is a 'looal or special' law vithln the meaning of the
above constitutionalprovision. Hall v. Bell County,
T8x. Clv. App., 138 9. w. 178, affirmed by the SU~IWIIEI
Court, Bell County v. Hall, 105 Tex. 558, 153 S. W. 121;
Webb v. Adams 180 Ark:713, 23 S. W. 26 617; 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 aouhtles with a pppulatlon
between 195,000 and 205,000 Is a part of the original
sot, and 16 not an amendment thereto. Since it is void,
the whole act must be dealfiredvoid, because otherwise
the court would hsve to apply the eat to all aountFes
having a population in exaess of 125,000 and this would
ba giving the act a broader scope than was intended by the
Legislature. The rule appllaable In such cases Is thus
stated In Lewlst Sutherland, Statutory Coastruatlon,26
Ed. vol. 1, sea. 306, as Pollowsr 'If, by strlklng out
a void exoeptlon, proviso or other restrIotlvealause,
the remtinder, by reason'of its generality,wLl1 have ti
. broader saope a6 to subject or territory, its.:operation
is not in acoord with the'legislative Intent, and the
whole would be arfeoted and made void by the lnvalldlty
of such part.' 'Substantiallythe same rule Is announced
in Ruling Case Law, vol. 6, p. 129. The above rule was
Sollcwed by this Court in Texas-LouisianaPower Co. v.
Cl& of Faz%erevIlle, Tex. Clv. App., 67 S. W. 26 235,
See, aleo, Jamee C. Davis Dlwotar General, v.
Oeo``e~Wallaoe,257 8. s. 478,,42 9. Ct. 164, 66 L. Ed.
325.
Bonorable !I!.
M. Trimble - Page 6 .
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In the case of Miller et al vs. El Paso County,
19 i$.W. (2d) at page 1000, a strlklnglyislnd.lar statute to the
one in question in this opinion was underlattack. The Court
again speaking through Chief Justice Alexander stated, in part,
as follovsr
"we are thereforemet at the outset with
a law which, under facts vell known at the tl.meof
its adoption, was applicableonly to a slngle county.
Clearly then it la a local law and must fall as such,
unless it can be fairly oald that the class so se-
gregated by the Act is a substantialclass and has
characteristicslegitimatelydlstlngul.shing It from
the remainder of the State so as torequire legis-
lation peculiar thereto. In this Instance the
classlflcatlonla made to rest entlriilpon the popu-
lation of the county and a city therein. .~. .
%Yhe peculiar limitationsemployed by the
Legislature in this instance to segregate the class
to be affected by the leglalationnot only bears no
substantialrelation to the objects aought to be ac-
complishedby the Act, but the purported class at-
tempted to be so segregated is, in fact, not a class
distinct 3.nany substantialmanner from others in
this State. . . After having carefully considered the
matter, ve are convinced that the attempted classlfl-.
cation is uureasonableand befirsno relation to the
.objects-simght'tobe ~accompllahed by the Act, and
that as a consequence the Act Is void.
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The caption of Senate Bill 50 reads as follotisr
"An Act declaring public policy and cre-
ating State Board of School Safety Supervision;prescrlb-
lng the authority, powers and duties thereof; pro-
vldlng for personnel, requiring certain minImum safety
stanilarde;provldlng that no public money shall be ex- ,
pended except upon certain conditions;exceptlng certain
school dtstridts hereSrom; repealing Articles ,2920,
2921 and 2922 of Title &.Chapter 19 of the Rbvised
Clvll'Statutes~of1925 and all laxa in conflict here-
vlth, and declarinplan emergency,
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Honorable T. M. Trimble - Page 7
Articles 2920, 2921 and 2922, all of'which Senate
Blll‘;50attempted to repeal, vere the atatutea that set up
bulldlng specificationsfor public schools, the method oi
securing permits for the constructionoi school bulldlngs
and reqtired the Board of Trustees of school districts to
secure legal permlts ror the construction of buildings
before any person charged with disbursing school fund8
vould be allowed to pay out any sum of public money for the
.constructionof any school building at an expense of'm&e
than $400.00.
In the,emergencyclause of the bill ln question
ve flndthlslanguaget
'The fact that present lays and ordinances
do not give.adecwateprotection to the lives of
school children nor prevent the unnecessary
destruction of school property, . . . .*
We can find no basis for the Legislature to conclude
%hat the protectlon tb the lives of school children In a dis-
trlct contalnlng a city of more than 375,000 people is any less
Etant or of less concern than in diatrlcts vhich have
cities and towns vlth a population of 335,000 or 350,000.
To the contrary ue think "adequateprotection' to the lives of
all school children in all our cities, towns and villages is
parsmount; A law that la designed to give such protection to
any group should apply to all. The same precautions should be
taken to.prevent "unnecessarydestruction of public school
property In cltlee, towns and villages sllke. The segregation
of the principal city In our State and exempting it from the
maIn portions of this 8111, I.e., Senate Bill 50, was, ve .
tNnk, arbitrary, unreasonableand tithout foundation. -The
school ohlldren and the public school property in the city of
Houston is entitled to and should have the same degree of pro-
tection aelthat of any other city, town or village in the State.
You am advised, therefore, that it is the considered
opinion or thls.depsrtmentthat Section 16-b of Article 2198-l
is unconstitutionaland void.
Further, we cannot state vlth certainty that the
Leglslaturc.wouldhave passed the Bill without the exception
clause. To strike it out and leave the remainder of the Act
to stand would give the Artlale 8 broader .scopethan the
Honorable Ti M. Trlmble - Page 8
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Legislature apparently intended. We ~musthold, therefore,
that 9. 8, 50, Acts of 1945, 49th Legislature,Regular Session,
unconstitutional,void and of no force and effect.
In the case .olCounty School Trustees of Orange
County, et al v. District Trustees of Prairie View Common School
Dlstrlct No. 8, 153 S. W. (2) 434, a Supreme Court case, an
Act of the 1935 Legislature was under attack and the court,
after holding one provision of the Act unconstltutlonal,vent
further and stated:
“It therefore cannot be said that the Legla-
lature would have passed any part of the Act with
the invalid portions eliminated. It r0novfi that
the,entireAct is void.
"If the Act of 1935 is void it repealed no
law behind it. Galv.'& Western Ry. Co. vs. City
of Calveston, 96 Tex..520, 74 S..W. 547.
.1 ':Thisrule applies in this case even though
:the Actof 1935 contains a section expressly re- .
pealing a former Act on the same subject. It will
.not be held that the Legislaturewould have re-
'pealed the existing law relating to the formation,
change etc. of school districts in this State
without substitutingsome other laws in their
places."
l Ravi determined that Senate Bill 50, Acts 49th
Legislature.,19
"&5 to be unconstitutionaland void, It follows
that such bill repeals no law and thereforeArticles 2920,
2921 and 2922, Vernon’s Annotated Civil Statutes remain in full
_ C.&e and effect.
Trusting the above satisfactorilyansvers your in-
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,.; Yours very truly
ATTORNRYllENERALOF TEXAS
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Assistant