Untitled Texas Attorney General Opinion ( 1945 )

GROVER SELLERS A1JwrIN 11. -IYrcuAs
--
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 Rawle 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 Rawle 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 Rawle 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