Untitled Texas Attorney General Opinion ( 1947 )

R-670
205
OF'PICE OF
THE ATTORNEY GENERAL
AUSTIN. TEUS
August 13, 1947
Hon. Tom A. Craven opinion No. V-337
County Audltor
McLennan County Re: Constltutlonalltyof
Waco, Texas 11.B. 547, 50th Legls-
lature.
Dear Sir:
Your letter to this Departmentreads in part
as follows:
"I shall thank you to advise me wheth-
er or not, in your opinion, House Bill #547,
50th Legislature,entitled '&inAct amending
McLennan County Road Law, Acts 1929, Forty-
first legislature,First Called Session,
page 70, chaptell34', 1s valid.
'In the event you should Indicate that
the House Bill #547 referred to Is invalid,
I shrillthank you then to advise me whether
or not, in your opinion, the McLennan CountY``
Road Law, Acts 1929, Forty-firstLegislature,
First Called Session, page 70, chapter 34, is,
valid."
Before you??first question can be ariswered,it
becomes necesirarythat we'examine the driglnal Act -own
as th6 McLennan County Road Law, Acts 1929; Forty-first
Legisl&ture,First Called Sessl.on,.p. 70, oh. 34,'tid
ascertainwhether said Act in its original form is oon-
stltutlonal. If said Act is constitutional,then we be-
lieve that H. B. 547, 50th Legislature,entitled an Act
amending the McLennan County Road Law, Acts 1929, First
Called Session, p. 70, oh. 34, would be valid; otherwise
not. Crow v. Tinner, 47 S.W. (28) 391, affirmed 124
Tex. 368, 78 S.W. (26) 588.
The original McLennan County Road Law, sup]?&,
is very long, and we shall refrain from setting the same
out In its entirety,but shall quote only those parts
which we deem pertinent.
Hon. Tom A. Craven - Page 2 (V-337)
2$36
Sections 1 and 2 provide as follows:
"Section 1. The county commi.ssl.onersl
court of McLennan County, Texas, shall at a
regular session, or calledmeeting thereof,
within ninety days, after the passage and
taking effect of this Act, employ a county
road superintendentfor McLenusn County.
Said superintendentshall have charge of all
public highway construction,and maintenance,
together with the building of bridges, and
culverts, in McLennan County, Texas.
"Sec. 2. Said Road Superintendentshall
be a graduate civil engineer,experiencedand
skilled In highway constructionand shall re-
ceive as salary for his servicesa sum of not
less than Twenty-fivehundred ($2 500.00) Dol-
lars, nor more than Six Thousand {$6,000.00)
Dollars per annum, payable monthly out of the
General Fund of:'McLennanCounty upon warrants
drawn by the County Judge, or Chairman of the
Commlssloners',~Courtof said County."
Sections 3, 4 and 5 of said Act provide for the
Road Superintendent'sbond and also set out his duties.
The Act is composed of twenty-sevensections and provides,
among other things, for the appointmentof,a consulting
engineer, for the use of the county convicts in the con-
struction of the bounty roads, for eminent domain proceed-
ings, for the.employmentof two road keepers In each Com-
missioner'sprecinct, and states that when bonds have been
issued snd sold that the proceeds shall be used in con-
structingroads and culverts and sets out the method of
procedure which is to be followed;but nowhere does It
provide for an election,for the levy and collectionof
taxes for the purpose of malntatinlngand constructingpub-
lic roads.or highways. It further provides that each
oounty commissionershall be the road commlsslonerIn his
respective precinct; shall issue a bond for $l,OOO.OO in
addition to the regular bond, and that each county com-
missioner of McLennan County shall receive as compensation
forhis services as such road commissioner,in addition to
the salary now allowed him under the general law 88 county
commlssloner,the sum of $1800.00 per annum to be paid out
of the general fund of McLennan County.
Article III, Sec. 56, of the Constitutionpro-
vides, among other things, that the,'Leglslature
shall not,
Eon. Tom A. Craven - Page 3 (v-337) 2-97
except as otherwise provided in this Constitution,pass ,
any local or special law authorizing:
Regulating the affairs of counties,
cities, towns, wards or school districts;
AMhorlzlng the laying out, opening,
altering or maintaining of roads, highways,
streets or alleys;
Creating offices, or prescribingthe
powers and duties of officers,in counties,
cities, towns, election or school districts;
and that in all other cases where a general law can be
made applicable, "no local or special law shall be en- I
acted" except "the preservationof the game and fish of
this State In certain localities."
The pertinent portion of Article VIII,,Sec.9, ; :
of the Constitutionreads as follows:
". . . and the Legislaturemay also
authorize an additional annual ad valorem
tax to be levied and collectedfor the fur-
ther maintenanceof the publlc'roads;pro-
vlded, that a majotiityof the qualifiedpro-:
perty tax paying voters of the county voting
at an election to be held for that purpose
shall vote such tax, not to exceed fifteen i
(15) cents on the one hundred dollars valu-`` ‘i
atlon of the property subjedt to~taxatlonin
iiutih'cotity.
The effect of the last statementof Section 9
of Article VIII of the Constitution,above quoted, super-
cedes the above'quotatlonfrom Article III, Section 56,
supra, Insofar as It pertains to roads and highways. The
autho?ity conferredby Section 9, Article VIII, of the I
Constitution,supra, l¬ to enact special road laws I
of all kinds for all purposes indiscriminately,but is
authority merely to pass local laws for the maintenance
of the public roads and highways.
.Itwill be noted that in substancethe subject
matter of the McLennan County Road Law Is otherwisedealt
Hon. Tom A. Craven - Page 4 (V-337)
ax3
with by general law.
Articles 6737 to 6739, V.C.S., Inclusive,
provide for the appointmentof.road commissioners
by the CommlfisionerslCourt, for the bond for such
road commlsslonersand the duties to be performed.
Articles 6743-50, V.C.S., provide general-
ly for the appointmentby the Commissioners’Court of
a ‘road superintendent,for his oath and bond, his
compensatlori,powers and duties. The duties.of the
suserintendentprovided for In Article 6746 are eub-
stantlallythe same as those set out in the McLennan
County Road Law.
Article 6762, V.C.S., speclflsallyprbvides
that in all countieshaK!ng aS many as 40,000 lnhabi-
tants that the members of the C&nnlssloners’Court
shall be ex officio road commissionersof their re-
spectiveprecincts and that the Commissioners1Court
1 shall have charge of the teams, tools and machinery
belonging to the county and placed ln their hands by
j 1; said Court,. They shall superintendthe laying.out of
new roads, maklng or.changing of‘the roads, and build-
ing of bridges under.ruIesadopted by the.Court;and
with the further provision thateach Comu@ssioner
shall first execute a bond of $l,OOO.OO.
Article 793, C.C.P., provides for the cornpen
satlon or credit to be dllowed a prisoner for thislabo?
Article 794, C.C.P., provides for the use by
the Commissioners’Cdurt of.the county convlOts’ to per,
f oTm work on thenpublic roads df the county and..for
guards over such cotivictti,and-all the.neoessary,pow-
ers are.vestedin the Commisslbners’Court to prevent
; I the escape of the convlats.
/
Was the original Act to create a more Gffi-
clent road system for McLennan County when there are
no provisionsin the Bill fdr the,levy and collection
of additionaltaxes for the constructianand mainten-
ance of county roads? We think not. The Act simply
m&kes provisionsfor certain things that are already
provided for under,the general laws of this State such
as the appointmentof road commissioners,road super-
intendents,working of county convicts,together with
the increase of the county commissioners’salaries
Hon. Tom A. Craven - Page 5 (w-337)
for performingthe regu&ar duties incumbentupon them
and without imposing any added duties or burdens upon
said county commissioners. This being true, it is our
opition that the law in question merely undertakesto
regulate county business contrary to the Constitution,
Article III, Section 56, and is not a local road law
for the maintenanceof public roads and highways. The
conclusionsreached here seem to be in harmony with
what Chief Justice Phillips said in Altgelt v. Guteelt,
109 Tex. 123, 201 S.W. 400, and quoted b Chief Justice
Alexander in Crow v. Tinner, 47 S.W. (269 391, at 393:
"Ro doubt the Legislature,in the pas-
sage of local road laws, may, withinproper
bounds, provide compensationfor extra ser-
vices to be performed by those officials
. . . where uncontrolledby general laws and
requiredby such~locallaws and directly con-
netted with the maintenance of the public
roads." (Affirmed124.Tex. 368, 78 S.W.(2d)
588)
The contents of the Act before the CourtIn
the Altgelt case were almost identicalwith those in:the
instant case, and were knownas the Bexsr County Road,Law.
The Act.ls set out In 187 S~.W.22O.(Oplnionof the San
Antonio Court of Civil Appeals which was reversed,by~ the
above decision)
In the case,,ofKitchens v. Roberts, 24 S.W&(2d)
464, writ refused, the constitutionalityof the Wood
County Road Law was in question, said Act providing that
each county commlsslonerof Wood County should be ex of-
ficio Road Supervisorof hls~respectiveprecinct, setting
out his duties as such, and providing for ah Increase of
the county commlsslonerlssalary for such servicesrender-
ed. The Court, ln constrningthe language used in the
Altgelt case, had this to say:
"Evidently,~we think, what the Chief JUS-
tice meant was that the Legislaturemight by
a special or looal.law impose duties with re-
ference to publlc'roads,notimposed.bythe
general law on a county commissioner,and in
such special or local law provlde~forcompen-
sation to the oommlssionerfor the extra>ser-
vices required of,him. But the Legislature
did not undertake to do that in the instant
case, but undertook Instead to do the thing
the court determined in the Altgelt-Gutseit
210 Hon. Tom A. Craven - Page 6 b-337)
Case it could not do -- that is ‘to legls-
late upon the subject of their [county oom-
iiisslonera~)generel oompensatlonor to
alter the general’lawsgoverning It.‘”
The case of Jameson v. smith, 161 S.W. (26) 520, writ re-
fused, is to the same effect.
As stated by the Courts ln all of the above
cases, there is no doubt that local road laws may be
passed providing for compensationfor extra services
rendered by officialswhere uncontrolledby general laws,
lf such is directly connectedwith or Incidentalto the
maintenanceof the public roads.
Here, such la not the case. It appears that
the Act attempts to do indirectly somethingwhich cannot
be done directly,and is In contraventionof Article III,
Section 56, supra. fin fatt, everythingfor which this
Act provides la also set out In Ohs general laws as here-
fnbefore set out. It is not one which, on ita face, aan
be successfullysaid is “to create a more efficientroad
system for McLennan County” in the sense’asprovided
un&er the Constitution’.We think it clear that the Leg-
islature passe&this law without any lhtentlonof con-
stitutingthe same as.8 local or special’roadlaw for the
maintenanceof’publlcroads and highways #.thln the mean-
Ing of the provision of the Constltutloti,
ArtIsle VIII,,
Section 9, supra. If it were the desiFe, purpose-.and in-
,tentlonof the Legislatureto pass such a law, it could
have easily’manifested the’same by incorporatingtherein
f.&ctsor.elementssufficientto make It fall within that
term as’providedby the ‘Constitution.In Its,failure to
%o provide,we atieimpelled to hold thatthe’ originalAct
as passed in 1929, by the-FortgbflrstLegislature,known
as the McLennan County Road Law, la unconstitutional.
R. B. Ho. 547, Acts of the,50th Legislature,
R. S.,,1947, provides:
“Sectlon~1. That the McLennan county
Road Law, Acts, 1929, Fort*-firstLegisla-
ture, First Called Session, page 70, Chapter
34, be and the same is hereby amended by
adding a new Section following Section 22,
tb be designated lSq?.tlon228,’ and to read
as follows:
Hon. Tom A. Craven - Page 7
23.1
(v-3371
“‘Section22a. The_ Comaissloners
. ._ . -. court
of McLennan County Is nereoy auwrlaea to
allow each Commlsslonera sum not to exceed
Fifty Dollars ($50) per month for traveling
expenses and depreciationon his automobile
while traveling on official business in the
County of McLennsn In connectionwith the
maintenanceand supervisionof the public
roads and highways in said County.’
“Sec. 2. The fact that in the County
affectedby this Act there is a great need
that the County pay the expenses of the
County Commlasionersas provided for In
this Act on account of large bond issues
voted and sold for road and bridge purposes,
thus greatly Increasingthe necessity of
such County Commissionerstraveling from
place to place, creates an emergency and an
imperativepublic necessity demanding that
the ConstitutionalRule requiring bills to
be read on three several days In each House
be suspended,and said Rule is hereby sus-
pended, and this Act shall take effect and
be in force from and after Its passage, and
it is so enacted.”
In view of the answer in the first question,
it naturallyfollovs that H. B. No. 547 of the 50th Leg-
islature, is also unconstitutionalfor the reason that
it EticfOUQti
tQ amand WA ULUlQllfitit- &dL, Which_ISE??
not.legally be done. If, on the other hand, Ii.B. 547,
suptia,is c6ntildered separatelyfrom the origlnalActs
of 1929, supra, it is stlll~unconstitutlonal and comes
within the purview of Opinion No. O-4162 of this Depart-
ment, a copy of which we are herewith enclosing.
We wish to ca.11to your attention that this
Department~wascontact@dby one of your representatives
with reference to drafting a bill which would Increase
the allowanceto the commissionersfor expenseswhile
traveling outside the county on official business. One
of the assistantsof this Depsztment advised that such
a bill should be drawn amending Section la, H. B. 84,
49th Legislature,R.S., 1945, which would be a general
law and, therefore,would be constitutional. Eowever,
we were not asked to pass upon the constitutionalityof
H. B. No. 547, supra, and, as is the policy of this of-
fice, when said bill was drawn we appended thereto the
212 Hon. Tom A. Creven - Page 8 (V-337)
following:
"It Is understood that preparationof
this proposed draft is no indicationwhat-
ever that its substance,policy or constitu-
tionalityis approved or ptssed on by the
Attorney General's office.
SUMMARY
The McLennan County Road Law, Acts
1929, Forty-firstLegislature,First Called
Session, pa,ge70, chapter 34, is uncorsti-
tutional,being in violation of Sec. 56,
Art. III, of the Constitution. Altgelt v.
Gutzeit, 109 Tex. 123, 201 3-W. 400.
Ii.B. No. 547 of the 50th Legislature.
amending the above Act, is also unconstitu-
tional since It attempts to amend an invalid
Act.
Very truly yours ~
BA:djm Assistant
Enclcsure
ATTORNEY GENERAL