Untitled Texas Attorney General Opinion ( 1951 )

. .
Hon. Henry Wade Opinion No. V-1315
District Attorney
Dallas County Re: Constitutionality of
Dallas, Texas Dallas County Road
Law.
Dear Sir:
Your request for an opinion relates to
the constitutionality of House Bill 961,4cts 47th
Leg., R.S. 1941, ch. 458, p. 729, as amended. The
following questions are presented for determination:
"1. Is the entire Act (H.B. 961, Ch.
458, 47th Leg., Reg? Sess. as amended June
3, 1949 and June 2, 1951) unconstitutional
as being in contravention of Article III,
Sec. 56, Texas Constitution, which prohibits
the enacting of local and special laws to
regulate the affairs of a county, to regu-
late labor or elections, or where already
existing general laws can be made applica-
ble?,
"2. Are the following Sections, if
taken individually, valid and constitu-
tional: 1, 4 (auto purchasing part), 6,
3, 13, 14, 15, 16, 17, 18, 19, 20, 21, 22,
23, 24, 25, 26, and 27?
“3. Are the following Sections, if
taken individually invalid and unconstl-
tutional: 2, 3, 4 fexcept for auto pur-
chasing part), 5, 7, 9, 10, 11, and 12?
"4. If any of the sections are found
to be unconstitutional, is there sufficient
basis for the remaining sections to stand
and be considered in force and effect?
‘5. Are the provisions applying to
the naming and ptiescrlblngof the functions
of the County Rngineer (Sec. 4) and the
County Purchasing Agent (Sec. 11) constitu-
tional?
Hon. Henry Wade, Page 2 (V-1315)
“5. May the Legislature constitution-
ally sin le out Dallas County in Sections
22 and 2& and make the provisions of this
Act as constituted apply solely to that
county to the exclusion of all others?"
House Bill 961, commonly referred to as
the "Dallas County Road Law,' is described in its
caption as "An ?ct to create a more efficient road
system for Dallas County, Texss, for the maintenance
of the public roads and highways other than duly
designated State highways of Dallas County." House
Bill 951 was amended in 1949 by House Bill 862,
Acts 51st Leg., R.S'.1949, ch. 311, p. 579. The ef-
fect of this amendment was to delete the salary
limitations of the county engineer in Section 4 and
the salary limitations of the ~purchasing agent in
Section 11 of the act. It was again amended by
Senate Bill 383, Acts 52nd Deg., R.S. 1951, ch. 328,
,proz6:;,byadding a new section to be known as Sec-
which gave the commissioners' court the
power to'create a county planning board and vested
in the court the power to adopt a master plan for
roads of the county.
Since House Bill 951 applies only to
Dallas County, it is apparent that the bill falls
;rithin the classification of a local or special
law. Fort Worth v. Bobbitt. 121 Tex. 14. 35 S.W.
2d 470, 41 S.W.2d 228-j; Bexar County-v. Ty-
152 s.w.2'd
?&d-as such. it must come
within the'prohibition of Section 56 of Article
III of the Constitution of Texas.
Section 55, Article III, Constitution of
Texas, provides in part:
"The Legislature shall not, except
as otherwise provided in this Constitu-
tion, pass any local or special law, .
. .
"Regulating the affairs of counties,
e D .
"Authorizing the laying out, opening,
altering, or maintaining of roads, high-
ways, streets or alleys;
Hon. Henry Wade, Page 3 (V-1315)
”
. . .
"And in all other cases where a gen-
eral law can be made applicable, no local
or special law shall be enacted: . . .*
However, Section 9, Article VIII, Consti-
tution of Texas , provides in part:
"And the Legislature may pass local
laws for the maintenance of the public
roads and highways, without the local
notice required for special or local
laws."
This provision, which was added to the Constitution
by an amendment adopted in 1890, is an exception to
Article III, Section 56. Henderson County v. Allred,
I.20Tex. 483, 40 S.W.2d 17 (1931).
As stated in Quinn v. Johnson, 91 S.W.2d
499, 501, (Tex. Civ..App. 1936, error dism.),
”
It is no longer open to ques-
tion t&a; any special or local road law
which limits its scope to what may reason-
ably be considered matters pertaining to
the 'maintenance' of the public roads and
highways is valid. (Citations.)"
The scope'of the term "maintenance of the
oublic roads and highways" as used in Article VIII.
Section 9, has been-discussed in several cases. In
Smith v. Grayson County 44 S.W. 921, 923 (Tex. Civ.
Aoo. 1897. error ref.),'the court held that the main-
tenance-of roads including the laying out of new
roads, saying:
n . . . By the use of the words ‘main-
tenance of public roads and highways,' the
framers of the constitution had reference
to maintaining a system of public roads
and highways, which would include all the
necessary powers to provide and keep up a
system of highways."
In Tarrant County v. Shannon, 129 Tex. 254,
104 S.W.;?d4, 5, 7 (19371, the court said:
Hon. Henry Wade, Page 4 (V-1315)
"The validity of H.B. No. 416, which
conferred the alternative rights in con-
demnation upon certain counties falling
within the provisions of this act, was
not challenged or questioned In the prin-
cipal opinion of the Court of Civil Ap-
peals. However, in the concurring opin-
ion the question was raised that H.B. No.
416 violates article 8, section 9 and ar-
ticle 3, section 56, of the Constitution;
and it further questioned the correctness
of the construction of article 3, section
55, of the Constitution by this court in
the case of Dallas County v. Plowman, 99
Tex. 509, 91 S.W. 221, in which case it
was held that local or special road laws
may be enacted without giving the local
notices required for special or local
laws.
". * .
"Furthermore, in that case the court
in substance held that the phrase 'main-
tenance of the public roads' in article 8,
section 9, of the Constitution, amendment
of 1890, authorizing the Legislature to
pass local laws for such purpose, includes
in its scope the laying out, opening, and
construction of new roads as well as the
repairing of those already laid out. And
the act of the 24th Legislature, supra,
enacting a local road law for Dallas coun-
ty, which provided for condemnation of
lands by the county upon the same proceed-
ings as by a railroad company was not, in
view of such amendment, rendered unconstl-
tutional by article 3, section 56, and ar-
ticle 11, section 2, of the Constitution.
It was also held, in effect, that the mean-
ing of the word 'maintenance' in the amend-
ment to article 8, section 9, of the Con-
stitution is not restricted, as in article
3, section 56, subdivision 5, by the con-
text, to the keeping up of roads, as dis-
tinguished from laying out and opening
them, nor is it confined to its narrow
and literal construction; but it must be
held to embrace all the things necessary
to accomplish the obvious purpose of the
.
Hon. Henry Wade, Pege 5 (w-1315)
amendment, including the opening as well
as repair of roads. The local law passed
for Dallas counwwas held valid."
Al.so see Tinner v. Crow, 124 Tex. 368, 78
s.W.2~ 588 (1935).
The subject matter included within a spe-
cial road law must be incidental or necessar!?to
the maintenance of roads. In Austin Bros. v: Patton,
288 S.W. 182 (Tex. Comm. App. 1926), the court stated
at pages 187, 188:
”
. . . The authority conferred by
section 9, art. 8, of the Constitution,
supra, is not 'to enact special road
laws' of all kinds, for all purposes in-
discriminately, but is authority merely
to pass local laws for the maintenance
of the public roads and highways. . . .
" . . . As shown above, our Supreme
Court has held that the words, 'the
maintenance of public roads,' include
the laying out, opening, and construc-
tion of new roatts. Therefore the au-
thority conferred by the constitutional
amendment carries with it the right to
regulate the affairs of the county only
in such respects as are necessarily and
appropriately connected with or inciden-
tal and subsidiary to the object of such
limited power -- the maintenance, in-
cluding the laying out, opening, an$
construction of public roads. . . .
Since, as shown by the above cases, the
Legislature may pass local or special laws per-
taining to the "maintenance" of roads and highways,
it becomes necessary to determine whether the var-
ious provisions of the Dallas County Road Law come
within the meaning of that term as interpreted by
the Texas courts, and therefore within the scope
of the exception contained in Section 9 of Article
VIII.
It is well settled that in determining
the constitutionality of a statute it is the duty
of the courts to uphold the legislative enactment
Hon. Henry Wade, Page 6 (V-1315)
if at all possible and to adopt any reasonable con-
struction which will place the statute in harmony
with the Constitution rather thanone which will
cause the statute to be in violation thereof. Pickle
91 Tex. 484, 44 S.W. 480 (1898). Also,
z-e- is our duty to give effect to this rule of stat-
utory construction in considering separate sections
of an a~ct,especially where the Legislature has ex-
pressly provided for severability as it has done in
Section 25 of the act under consideration. Att'y
Gen. Op. V-1253 (1951). With these rules in mind,
we will now discuss the separate sections of the
act.
Section 1 of the statute prescribes the
powerand authority of the Commissioners' Court of
Da~llasCounty to adopt a system for the construc-
tion and maintenance of the public roads of the
county. The provisions of this section are clearly
within the scope of the exception authorized in
Section 9 of Article VIII, and, in our opinion, the
section is constitutional.
Likewise, Section 6 relates directly to
the construction and maintenance of roads. This
section confers on the Commissioners' Court the
right to purchase or condemn property necessary for
the construction and maintenance of roads and pre-
scribes the procedure for condemnation proceedings.
A provision giving similar authority to the Commis-
sioners' Court of Tarrant County was held valid in
Tarrant County v. Shannon, supra. It is our opin-
ion that Section 5 is constitutional.
Section 8 authorizes the Commissioners'
Court of Dallas County to require the draining of
ditches or borrow pits which impede the proper
drainage of water a~ccumulatingon or along roads
and highways. We think the powers conferred in
this section clearly pertain to the maintenance
of roads and that the section is valid.
Section o abolishes road overseers and
payment of road taxes by labor and requires all
moneys received from direct taxation for the con-
struction and.maintenance of roads be placed to
the credit of the County Road and Bridge Fund. We
think these are valid provisions.
Hon. Henry Wade, Page 7 (v-1315)
Sections 13 through 17 relate to the is-
suance of bonds for road and bridge purposes and
the moneys received from the sale of such bonds.
In Henderson County v. Allred, 1.20Tex. 483, 40 S.W.
2d 17, 19 (1931], the Supreme Court held:
" . . . If the Legislature possessed
the power to control by local or special
laws the laying out, construction, and
maintenance of public roads in Henderson
county, which cannot be doubted under the
foregoing decisions, then it must neces-
sarily follow that it has the power to
control and regulate by such a law the
expenditure of all funds used for such
purposes. , . . Indisputably the Legis-
lature had the power to authorize Hen-
derson county by local or special law to
issue warrants or bonds as a means of ob-
taining funds to be used in the buildigg
and operation of its road system . . .
Since the enactment of these provisions
is not inhibited by Section 56 of Article III, we
have only to consider whether any of the provisions
of these sections violate other constitutional re-
quirements.
Section 13 provides in part%
"Whenever the Commissioners Court
shall deem it necessary or expedient to
build, construct, improve, reoair, or
maintain roads of a permanent nature in
said County with the proceeds of the sale
of bonds issued for road and bridge pur-
poses under the terms of this Act, said
Court shall at any regular meeting pass
and record in its minutes a resolution
setting forth that it is the sense of
said Court that public roads and bridges
ofa permanent nature shall be built,
constructed, improved, repaired, or main-
tained in said County and that the County
or any Road District thereof should issue
its bonds to raise money for that purpose
in an amount to be named in such resolu-
tion, and said resolution shall be sub-
mitted to the vote of the property-owning,
.
Hon. Henry Wade, Page 8 (V-1315)
qualified voters of said County at any
regular or special election which the
Court may order for that purpose, and
if at such election a two-thirds major-
ity of the votes cast shall be for such
resolution . . .”
It is clear that the "road and bridge*
purposes refer to the fifteen cent road and bridge
tax authorized by Section 9 of Article VIII (county-
wide road and bridge tax) * This is made clearer by
Section 15, which provides that "nothing in this
language or in the terms of this Act shall be held
to impair the right of the County or any Road Dis-
trict thereof to issue bonds under the provisions
of Article 3, Section 52 of the State Constitution
and the Statutes enacted pursuant thereof." In
other words, unlimited tax road bonds issued by
counties and road districts are excepted from the
provisions of the Act.
Section 13 provides for the issuance of
bonds by the County “or any Road District thereof.”
A road district can issue bonds only under Section
52 of Article III.' The 15d road and bridge tax
under Section 9 of Article VIII is a county-wide
tax, and may be levied only over the entire county.
Any attempt to authorize a road district to levy a
tax under Section 9 of Article VIII would be un-
constitutional. Clearly, therefore, Section 13 is
unconstitutional in attempting to authorize road
districts to issue bonds under Section 9 of Article
VIII. Section 13 is valid, however, insofar as it
pertains to the issuance of bonds by the county for
road and bridge purposes. Sections 14, 15, 16, and
17 likewise are valid to the extent that they apply
tc such county bonds and the moneys received from
the sale thereof.
Section 18 prescribes the manner in which
contracts for road improvements are to be awarded.
The making of contracts for road improvements, in
our opinion, comes within the scope of a valid local
road law,
Section 25a, which was added by the 1951
amendment, authorizes the Commissioners' Court to
create a County Planning Board “for the purpose of
Hon. Henry Wade, Page 9 (V-1315)
regulating county planning, platting and subdivi-
sions." The section also confers upon the Commis-
sioners' Court the same powers within the area
under its jurisdiction with reference to planning,
platting, and approving of subdivision as cities
are empowered to exercise under Article 974a, V.C.
S. The Commissionersf Court is authorized to
adopt rules and regulations governing the subdivid-
ing and platting of territory, "which said rules
and regulations shall take into consideration the
general layout of highways, roadways, their con-
nection with either present or projected roads,
and how these highways and roadways may connect
with streets within the city, or projected streets,
connecting therewith, so as to provide an orderly
development in the interest of public health,
safety, and general welfare of the county." Al-
though the motive for the grant of authority is in
broad language, we think the effect of the section
is to enable the Commissioners' Court to provide
for an orderiy development of the county road sys-
~tem.~ The statute expressly provides that the
Comissioners' Court or the planning board is not
given authority to set up zoning regulations or
building codes. In a letter.opinion to the Gov-
ernor of Texas on Nay 31; 1951,,ws'heldthat this
section was validly enacted under Section 9 of Ar-
ticle VIII.
You have asked us specifically whether
certain sections of the statute are unconstitutional,
and we shall now refer to these particular sections.
Section 2 provides that each county com-
missioner shall devote all of his time to the duties
of his office and be in attendance at all sessions
of the court. It also fixes the compensation of
the county commissioners and provides that such com-
pensation "shall be in full for all services ren-
dered said county." We believe this section violates
Article III, Section 56 of the Constitution, since it
encompasses a regulation of county affairs other than
the maintenance of roads. A1tRel.t v. Gutzeit, 109
Tex. 123, 201 S.W,.400 (1918). Kitchens v. Roberts,
24 S.W.2d 464 (Tex. Civ. App.'1930, error ref.).
Section 3 requires the County Judge to ap-
point standing committees composed of two or more
county commissioners for supervising the various de-
partments of the county's affairs. Like Section 2,
Hon. Henry Wade, Page 10 (V-1315)
this section embraces matters outside the scope
of a road~law and is in violation of Section 56 of
Article III.
Section 4 authorizes the appointment of
a county engineer and prescribes his duties and
qualifications. He is given the custody and con-
trol of all machinery, equipment, tools, supplies,
and all other property purchased out of the Road
and Bridge Fund to be used in the maintenance of
county roads. All maintenance, repair, drainage,
and construction work on all county roads is placed
under his control and supervision. However, he is
at all times "under the supervision and control"
of the commissioners' court.
Although Article In, Section 56 of the
Constitution prohibits the passage of any local
or special law "creating offices, or prescribing
the powers and duties of officers, in counties
" Henderson County v. Allred, supra, states
Ehat'Alocal or special road laws are expressly
exempted from the operation of the provision of
section 56, article 3." (40 S.W.2d at 18.) Also,
in S~mithv. Grayson County, supra, it is said that
'none of the prohibitions comed in section 56,
article 3, are applicable" to a local road law.
But see Austin Bros. v. Patton, supra; Commissioners'
Court of Limestone County v. Garrett, 236 S.W. 970
T L1 . D 22). Anderson v. Houts, 240 S.W.
s4F(Te??CivpPApp. l&2]. It is possible, there-
fore, that the Legislature may validly enact a local
road law creating an office, provided the duties of
the office are such as are incidental or necessary
to the "maintenance" of roads. However, it is un-
necessary for us to express an opinion on this ques-
tion here, since we think it is clear that the coun-
ty engineer in question Is an employee and not an
officer.
In Dunbar v. Brazorla County, 224 S.W.2d
738 (Tex. Civ. App. 1949, error ref.), the court
held that a county road engineer was not a public
officer buta member of the administrative person-
nel of the county road department. We think the
same is true of the county engineer provided for
Dallas County, even though Section 4 refers to
the position as an "office*, provides for a term
of two years, and requires him to take an oath and
execute a bond.
Ron. Henry Wade, Page 11 (V-1315)
Various tests have been used by the
courts in determining whether a particular per-
son is an officer or an employee, some of these
tests being tenure of office, requirement of a
bond, duty to take an oath of office, and the
manner in which the compensation of the position
is fixed. See Rates, 53 A.L.R. 595 and 140 A.L.R.
1076. However, all of these tests are merely cir-
cumstantial and not conclusive. The most impor-
tant test; and the only one which appears to be
conclusive, is whether the creation of the posi-
tion involves a delegation to the person filling
the position of some part of the sovereign power
or functions of government to be exercised by him
for the benefit of the public. This test is set
out in 53 A.L.R. 595 as follows:
“It may be stated, as a general
rule, deducible from the cases discussing
the question, that a position is a public
office when it is created by law, with du-
ties cast on the incumbent yhich involve
an exercise of some portion of the sov-
ereign power and in the performance of
which the public is concerned,,and which
also are continuing in their nature an%
not occasional or intermittent; while a
public employment, on the other hand, is
a position which lacks one or more of
the foregoing elements .n
A similar statement of the rule is found
in Mechem, Public Offices and Officers (1889) 5,
Sec. 4:
‘The most important characteristic
which distinguishes an office from an
employment contract is that the creation
and conferring of an office involves a
delegation to the individual of some of
the sovereign functions of government,
to be exercised by him for the beneflt
of the public; that some portion of the
sovereignty of the country, either leg-
islatlve, executive or judicial, attaches,
for the time being, to be exercised for
the public benefit. Unless the powers
conferred are of this nature, the in-
dividual is not a public officer .’
Ron, Henry Wade, Page 12 (V-1315)
The rule as above stated has been quoted
with approval in the following Texas cases: Kimbrou h
Barnett, 93'Tex. 301, 55 S.W. 120 (1902);d
iihnson, 141 S.W.2d 698 (Tex. Civ. App. 1940, error
zp"be;z;on v. Ellis County, 84 S.W. 1097 (Tex.
. .
Under the above test, we think it is clear
that the county engineer authorized by Section 4 of
this azt is an employee and not an officer, since he
has not been delegated any of the sovereign power or
functions of government to be exercised by him for
the benefit of the public, but is under the complete
supervision and control of the Commissioners' Court.
Section 4 also authorizes the Commissioners'
Court to purchase necessary automobiles for the use of
the county cormnissioners"in the building and construct-
ing of public roads," to be paid for out of the Road
and Bridge Fund. A like wrovision in the road law for
Jefferson County was upheid in Quinn v. Johnson, 91
S.W.2d 499 (Tex. Civ. App. 1936, error dism.).
The last paragraph of Section 4 provides
that the county judge, county auditor, and county com-
misioners may be allowed necessary traveling expenses
when traveling in connection with county business, to
be paid out of either the General Fund or the Road and
Bridge Fund. The provision does not limit the ex-
penses to those incurred in connection with the main-
tenance of roads. In Att'y Gen. Op. O-4827 (194'2),
this provision of the Dallas County Road Law was held
unconstitutional in the following language:
n D s . If the provision of said road
law with reference to the traveling ex-
penses of the commissioners' court quoted
in your letter had been limited to travel-
ing expenses of the conmissioners court
with reference to the maintenance of the
public roads of the county and payment
limited to the Road and Bridge Fund of the
county such provision would have been valid.
But the provision under consideration here
is clearly not so limited. Under the un-
equivocal assertions of the court in the
caseof Jameson v. Smith, supra E61 S.W.2d
520 (Tex. Civ. App. 1942, error ref. w.0.
m.17, and authorities therein cited, it is
Hon. Henry Wade, Page 13 (v-1315)
our opinion that said provision of the
Dallas County Road Law, quoted in your
letter, allowing traveling expenses to
the County Judge, County Auditor and
County Commissioners for traveling
expenses on official business generally,
is not a road law, and is unconstitu-
tional as a special or local law at-
tempting to regulate the affairs of a
county where a general law could be made
applicable." (Emphasis added throughout.)
Therefore, we are of the opinion that Sec-
tion 4 is valid and constitutional with the exception
of that portion declared unconstitutional in the a-
bove mentioned opinion.
Section 5 authorizes the Commissioners'
Court to employ special counsel "to advise the Court
or the Commissioners thereof in special matters where-
in the services of said counsel may be required and
also in special cases to conduct the litigation of
the County in which the interests of said County may
be involved." The employment of counsel is not lim-
ited to matters pertaining to the construction and
maintenance of roads. We are of the opinion that
this section violates Section 56 of Article III and
is therefore unconstitutional.
Section 7 makes it the duty of the County
Auditor of Dallas County to audit expenditures from
the County Road and Bridge Fund, road district funds,
or "any~other funds, special, general, or bond funds
now on hand or hereafter held by said County." It
is possible that this section, or at least the quoted
phrase, is invalid for the same reason that Section
5 is invalid. However, we see no need for determin-
ing this question at this time in view of the fact
that it appears to be in harmony rather than in con-
flict with the powers of the County Auditor under
general laws relating to his office.
Section 11 authorizes the appointment of
a "Purchasing AgentV for the county and provides
that all county purchases 'of every kind and char-
acter" shall be made by the purchasing agent. This
section also prescribes the manner in which con-
tracts for the purchase of supplies and equipment
eof any kind or character" are to be made. Inasmuch
Hon. Henry Wade; Page 14 (V-1315)
as its provisions are not limited to purchases
incidental to the maintenance of roads, we are
of the opinion that this section violates Arti-
cle III, Section 56 of the Constitution. Miller
v. El Paso Count
,x.yEi``p~apb.O````~.v.Kent, 781
S.W.2d 919 (T
Section 12 relates to the use of con-
vict labor in Dallas County. It is not limited to
labor upon the public roads. Since convict labor
may be utilized for other purposes (Art. 794, V.
C.C,P.), the provisions of Section 12 attempt to
regulate matters in addition to the maintenance of
roads. We think this section violates Section 56
of Article III of the Constitution.
Section 19 makes it unlawful for a mem-
ber of the Commissioners' Court or any county of-
ficial to become financially interested in any
contract for Dallas County road work or for the
purchase or sale of materials or supplies for the
county in connection with roads. The penalty pre-
scribed isa fine of not less than $500 nor more
than $1000, or imprisonment in the county jail for
not more than one year, oreboth fine and imprison-
ment. Article 363, V.P.C., defines an identical
offense with respect to such contracts and pre-
scribes a penalty of not less than $50 nor more
than $500.
In Ex parte Sizemore, 8 S.W.2d 134 (Tex.
Crim. 1928);the court held that a provision in a
local road law-whitiallowed a credit of fifty cents
a day for convict labor on the public roads was un-
constitutional, since it was at variance with the
general statute allowing a credit of $3.00 a day.
The court there laid down this general rule:
"A law which makes different punish-
ments follow the same identical criminal
acts in the different political subdivi-
sions of Texas violates both our state
and Federal Constitutions. It fails to
accord equal rights and equal protection
of the law, and a conviction under it is
not in due course of the 'law of the land.'"
Also see Exps&B Carson, 159 S.W.2d 126, 129 (Tex.
Grim. 1942). The Sizemore case arose out of a con-
viction for an offense aenounced by the Penal Code
Hon. Henry Wade, Page 15 (V-1315)
rather than by a local road law, but we think the
same principle is applicable here. Therefore,
that portion of Section 19 which conflicts with
the general law on the same offense is unconstitu-
tional.
Section 20 prohibits the dumping or de-
positing of garbage or refuse upon the public roads
and highways of Dalla,sCounty and pre~scrlbesa fine
of not more than $200 as the penalty. We think
this provision is likewise unconstitutional insofar
as it conflicts with the general law, Article @%a,
V.P.C., which prescribes a penalty of a fine not
less than $10 nor more than $200 for the same of-
fense. In Ex parte Sisemore and Ex parte Carson,
the local law prescribed a more onerous pen-
F
a ty than the general law, whereas the penalty here
is the less onerous since it does not prescribe a
minimum fine. However, in State v. Fowler, 193 N.C.
290, 136 S.E. 709 (1927), a local law which imposed
a fine only, while a statute applicable to the whole
State imposed a fine or imprisonment, was held to be
unconstitutional under both the Federal.and State
Constitutions, as a denial of equal protection of
the laws.
Section 2O$also makes it an offense for
any person to permit'sewage from his premises to
drain upon the public roads and highways. We have
been unable to find a general statute defining a
similar offense. While earlier ooinions of the
Court of Criminal Appealscited inKEx parte Sizemore
had suggested that a new offense applicable in one
locali%y only could be created in a-local road law,
we think the opinion in Ex parte Sizemore casts
doubt upon the correctness of these former hold-
ings. However, in the absence of an express deci-
sion on this question, we are inclined to hold this
portion of Section 20 valid as being within the
scope of Section 9 of Article VIII.
The holding in the Sisemore case also
raises a question of the validity of Section 10,
which makes it an offense for any person to fail to
pay tr the county treasurer within five days of its
receipt money derived from the sale of property or
the use of machinery and equipment of the county.
However, we think Section 10 must be held invalid
Hon. Henry Wade, Page 16 (V-1315)
for another reason. This section extends to the
“sale of property and material ordered sold by
the Commissioners Court and from the use and
rental of machinery and equipment owned by the
County,n and provides that the money shall be
placed to the credit of the Road and Bridge Fund.
It includes all sales and all rentals, regard-
less of whether the propertywas purchased out of
the Road and Bridge Fund or was used in connection
with the maintenance of roads. It therefore tran-
scends the bounds of a road law and is invalid
under Section 56 of Article III as an attempt to
regulate county affairs by local law.
Section 21 provides that all fines for
any violations of any of the provisions of the
act and all moneys collected by virtue of any con-
tract~:xecutedunder the.provisions of the act shall
be applied to the Road and Bridge Fund. We think
the general purpose of this section comes within
the purview of a local road law and is constitu-
tional.
In your sixth question you ask whether
the Legislature may single out Dallas County in
Sections 22 and 24 and make the provisions of this
act as constituted apply solely to that county to
the exclusion of all others. We think the validity
of these sections rests on the same basis as the
validity of other sections pertaining to the main-
tenance of roads. Since the Legislature has the
power to enact local legislation on this subject,
it may include in the act a definition of the mean-
ing to be given the terms used, so long as the def-
initions do not extend the provisions of other sec-
tions beyond the limits permitted by Article VIII,
Section 9~of the Constitution. We do not find any
objectionable provision in Section 22 of the act.
Likewise, since the Legislature could enact a lo-
cal road law for Dallas Countg,it could also pro-
vide the extent to which the local road law should
control over other statutes. We are of the opinion
that Section 24 is valid.
You ask whether there is sufficient basis
for the remainder of the act to stand in the event
certain sections of the act are unconstitutional.
The answer to this question depends upon whether the
unconstitutional portions can be severed from the
Hon.Henry Wade, Page 17 (V-1315)
valid portions without materially affecting the main
purpose of the legislation.
Section 25 of the Act provides:
"If any section, subdivision, para-
graph, sentence, clause, or word of this
Act be held to be unconstitutional the
remaining portions of same shall, never-
theless, be valid, and it is declared
that such remaining portions would have
been included in this Act though the un-
constitutional portion had been omitted."
In 2 Sutherland, Statutory Construction
(3rd ed. 1943) 178-179, Sec. 2404, it is said:
'In determining separability, leg-
islative intent governs, but intent that
the act be enforced in so far as valid is
notthe the sole consideration. If the
legislature so intended, the valid parts
of the act will be upheld ‘unless all the
provisions are connected in subject mat-
ter, dependent on each other, operating
together for the same purpose, or other-
wise so connected together in meaning
that it cannot be presumed the legisla-
ture would have passed,the one without
the other.' To be capable of separate
enforcement, the valid portion of an
enactment must be independent of the
invalid portion and must form a complete
act within itself. The law enforced
after separation must be reasonable in
the light of the act as originally
d~rafte;?.The test is die tGv or not the
le,gislaturewould have passed the stat-
ute had it been presented with the in-
valid features removed."
Also see City of Taylor v. Taylor Bedding
Mf . co., 215 S.W.?d 21.5(Tex. Civ. Appr 3.948
* Christopher v g8 s.w:2?;;;
ev. A arber v. Flor-
ence 131 Te?’ 36) Nichols
-irk, 119 S. p. ig?zqT---
Daniel v. Tyrrell &Garth Inv. Co., 127 Tex. 213, 93
S.W.2d.372 (1935).
Hon. Henry Wade, Page 18 (V-1315)
The Dallas County Road Law validly au-
thorizes the Conrmissioners’Court to adopt an
over-all plan or system for the construction and
maintenance of county roads and outlines the meth-
od for acquiring real property necessary thereto.
It authorizes the employment of a county engineer
who is to be in direct charge of road maintenance.
It regulates the manner of making contracts for
the construction and maintenance of the roads and
for the purchase of necessary materials and sup-
plies. While we have found the bond provisions to
be unconstitutional to the extent that they pur-
port to authorize road districts to issue bonds
for road and bridge purposes under Section 9 of
Article VIII, the county may issue road bonds
under this law. Also, the county or any road dis-
trict therein may issue bonds for road purposes
under the general laws. Various other provisions
of the act are also valid. We think the valid pro-
visions, standing alone, form a complete and en-
forceable piece of legislation, and we believe that
the general legislative purpose of providing “a
more efficient road system for Dallas County” may
be given effect after the unconstitutional provi-
sions have been severed from the act. This is in
accord with the legislative intent declared in
Section 25.
SUMMARY
Those’provisions of the Dallas Coun-
ty Road Law (House Bill 961, Acts 47th Deg.,
R.S. 1941, ch. 458, p. 729, as amended) au-
thorizing the Commissioners’ Court to adopt
a system for the construction and mainte-
nanceof county roads (Section 1) ; providing
for the appointement of a county engineer
and prescribing his duties, and authorizing
the purchase of automobiles for use of the
county commissioners in the construction
of roads (Section 4); relating to acquisi-
tion of rights of way for roads by purchase
or condemnation (Section 5); requiring the
draining of certain ditches and borrow pits
which affect roads (Section 8); abolishing
road overseers and payment of road taxes by
labor and requiring road tax money to be
placed in the County Road and Bridge Fund
(Section 9); authorizing the issuance of
Hon. Henry Wade, Page lg (V-1315)
bonds and regulating the handUnS of moneys
received therefrom, insofar as they pertain
to bonds issued by the county for road and
bridge purposes (Sections 13-17) ; regulat-
ing the manner of awarding contracts for
road improvements (Section 18) ; providing
for the application of certain moneys to
the Road and Bridge Fund (Section 21); and
authorizing the creation of a county plan-
nine board and conferrine upon the Commis-
sioners’ Court certain authority over sub-
division of territory outside the juris-
d~ictionof cities and towns (Section 25a)
were valid1.yenacted under Section g, Arti-
cle VIII, Constitution of Texas, authorizing
the passage of local laws for the mainte -
nanceof public roads and highways.
Those provisions fixing the compensa-
tion~of the county commissioners (Section
2); requiring the,appointment of standing
committees composed of members of the Com-
missioners’ Court to supervise the various
departments of the county’s affairs (Sec-
tion 3); authorizing travelin expenses
for certain county officials 7Section 4);
authorizing the employment of special coun-
sel by the Commissioners’ Court (Section
5); requiring the deposit of moneys de-
rived from the sale or rental of county
property within five days after its re-
ceipt (Section 1.0);authorizing the ap-
pointment of a purchasing agent to handle
a.l.1
county purchases end prescribing the
msnner of making contracts for all.county
supplies (Section 11); and regulating the
use of convict labor (Section 1.2)are in
violation of Section 55, Article III, Con-
stitution of Texas, prohibiting the pas-
sege of certain local or special laws.
Sections19 and.20, prescribing certain
offenses and the penalty therefor, are in-
valid insofar as they conflict with the
general I.a~w.
The valid portions of the Dallas
County Road Law,standinS alone,form a
complete and enforceable piece of leg-
islation, and the general legislative
_
Ron. Henry Wad+, Page 2& (v-1315)
purpose of providing "a more efficient
road'systeil~forDallas County" may be ef-
fe~ct&afte? the unconstitutional pro-
visions have,been severed PrOm the act.
APPROVED: Yours very truly,
J. C. Davis, Jr. PRICE DANIEL
County Affairs Division Attorney General
Everett Hutchinsbn
Executive Assistant
Charles D. Mathews
First Assistant
Mary K. Wall
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