Untitled Texas Attorney General Opinion ( 1947 )

R-222
April 8, 1947
Hon. Charles A. Tosch opInIon No. v-131
County Audit or
Dallas County Re : Validity of House Bill
Dallas, Texas Ho. 377, 49th Lsglsla-
ture.
Dear Mr. Tosch:
Your recent request for an opinion reads as
follows :
“As County Auditor for Dallas County,
I would greatly appreciate an opinion from
you as to the validity of this bill. ~Aques-
tion has been raised regarding its applica-
-tion to counties, and cities, based upon the
following:
nThe Act’ la questlon 1s Chapter 357;
Page 627 of the Acts of the 49th Ieglslature,
and appears .as Article 4413 (31) of Vernon’s
Texas Civil Statutes.
“The ~orlglnal biii, styled House Bill
No, 377, was first introduced In the House,
and the body OS the Act provides that the
. ,~: ,~.~ ’ ~follovlng shall’give preference to war vet-
erans: ‘i‘
“1 . . . every public depa?t-
meat , +mmIssfbn, board and govern-
mental agency and npo~iall,publlc
~:‘works of this state ‘. . .
“In the caption of the Act the enumeration.
of the public’ bodies Is as follows:
*..,’ .:
all public depart-
mentsY’c&u&ilons board and all
other’governmsntal’agencl~s and up-
,’
.on public works of this state an$i
of all counties, cities, towns, ana
school districts thereof . . . ‘,
. _.
-. c
&n. Charle’s A. Tosch, Page 2, V-131
“It Is apparent that the caption of the
Act indicates that the bill provides for its
application to cities, towns, -counties and
school districts, whereas there Is no such
provision in the body of the Act Itself,
“A study of the legislative history of
this Act makes me doubt that the Legislature
of the State of Texas Intended that the State
Veteran’s Preference Act should apply to cities ,)
towns, counties, and school districts.
“I shall greatly appreciate your revlev-
lng this Act and Its history and letting me
have your opinion as to whether or not the
bill Is valid as to Its application to co;n-
ties, cities, towns and school districts.
From the brief submitted with this opinion re-
quest, we learn:
“The bill was referred to the Committee
on State Affairs. On April 17, 1945, the bill
was laid before the House on second reading,
and a committee amndmetlt was offered strlk-
lng out all below the enacting clause and sub-
stltlitlng substantially the same provisions
that now appear In the act, except that the
body of the bill provided ‘and upOn all pub-
lic works of this State and of counties, clt-
lea, towns, and school districts thereof.’
The amendment was adopted. The constlt utlonal
rule requiring bills to be read on three sep-
arate days was then suspended, and the bill
was placed on its third reading and fiaal
passage.
"On May 31, 1945, House Bill 377 was
laid before the Senate on its second reading
and passage to third reading. Senator Mart in
offered an amendment, striking out all below
the enacting clause and substituting substan-
tially the sams provisions except that the
reference to counties, cities, towns and
school ,dIstrIcts was eliminated from the
body of the bill. The amendment was adopted
and the bill passed on third and final read-
ing..
Hon. Charles A. Tosch, Page 3, v-131
“The House of Representatives must have
concurred la the Senate amendment as the Act
now reads exactly as’.amended la the Senate.
The Senate also ordered the caption of the
bill corrected to conform with the amendment
but apparently the clerk failed to eliminate
the reference to counties, cities, towns and
school districts. ”
It Is evident that the title to House Bill
No. 377, 49th Legislature, above, is broader than the
body of the bill. The title to the bill provides ” . .
. . for preference of employment la all public depart-
ments, Connnlsslons, boards, and all atier governmental
agencies, and upon public works of this State and of
$1 counties, cities, towns and school districts there-
. The body of the bill does not extend the
preheience of employment upon public vopks of all coun-
ties. cities. towns. and school dlstrlctii of the State.
Section 35, Article III of the Conatltutlon
of this State; that bears on this questlon, reads!
“Ho bill ~* * l l shall coatal& moFe than
one subject, which shall be expressed In its
~t1tl.e. But if any subject shall be embraced
in an Act, ahlch shall not be expressed la
the title, snch an Act shall be void only as
to so aiuch thereof as shall not be so expres-
sed. n
In the Texas case of Lover Tax Collector
vs. Red Cab Company, 262 S.W. 147, 9’ application for
writ of error refusedJ the Court, in determining the
constltutlonallty of a statute whose title was broader
than the enactment, said:
“We therefore hold that because the
title io.Chapter 75 (Acts 38th LegIslatWe,
19.23) 1s broader than the enactment; la that,
while the title suggests that there was a tax
on all passenger automobiles with a seating
capacity in 8xcess of aeven passengersi and
there was an omission in the body of the Act
in t&Is respect, the title did not. thereby
become deceptive and render any portion of
the enactment invalid. ”
The Court of Civil Appeals, in arriving at
this decision, followed the two established rules that
: ’ ..
-
Hon. Charles A. Tosch, Page 4, v-131
Section 35 of Artfcle 111 of the Texas Constitution
should be given a liberal and not a strict construc-
tlon, and that the manifest purpose of this provision
of the Constltut ion is that when the caption of a
bill is read, it will give the members of the Legls-
lature and the public a reasonable notice of the ob-
ject and scope of the law, 39 Tex:Jur., page 97.
It Is stated in VOlume 25 of Ruling Case
Law, Section 109, page 866:
“That because the title to a leglsla-
tlve enactment is broader than the enact-
ment , that is, includes several subjects
germane to the general subject legislated
upon, but omits one of such subjects from
the body of the act, this fact will not
render the enactment void, solely because
of such omission. It. will do so, however,
if It clearly appears that because of such
omlsslo~ the title was thus rendered s$s-
leading as to what was really enacted.
The weight of authority outside of Texhs
supports the proposition that it is not an objection
to the suffloiency of a title if such title Is broader
than the body of the Act, so long as the title fairly
lndlcates the soope and purpose of the Act. A person
reading It should be able, to expect leglslat ion of the
character contained la the body of the Act.
The Maryland Court of Appeals, In the case
of Mt. Vernon Woodberry Cotton Duck Company vu. Frank-
fort Marine Accident and Plate Glass Insw~ance Company,
,~ 75 Aslant Ic 105;. said:
.
“The title of the Act of 1992 Is claimed
to be misleading also because~ it indicates
that the Act Is to apply to the whole State,
while la the body of the Act many oi the coun-
ties la the State are excepted from Its opera-
tion. Much of the legislation la this State,
has been enacted in the same way, and we know
of no Idstance in which its constitutionality
has been. seriously questioned on that ground. ’
Maryland’s Constitution makes the ~same requlre-
ment as Section 35, Art Icle III of the Texas Constitution.
Eon. Charles A. Tosch, Page 5, V-131
!l!he Missouri Supreme Court, In the case of
State of ~Mlssourl vs. Frederick C. Burgdoerfer, 17 3. W.
646, in construing the constitutionality of a bill whose
title was broader than the body of the Act, held that
such bill would not be set aside on the constitutional
grOWidS that its subject is not clearly expressed In its
title, unless the Inference is irresistible that the
title misled those who voted for it. The bill’s title
read, “An Act to prohibit book-making and pool-selling.’
The body of the bill only partially prohlb,Ited and reg-
ulated such pract Ice.
The sams rule was announced by the Michigan
Supreme Court In the case of Boyer VS. Grand Rapids, 83
Northwestern 1241, as follows:
“It is true the body of an act must not,
under our Constitution, contain provisions con-
trary to, or not germane to, the subject mat-
ter indicated In the title; but we do not under-
stand the body of the act must contain all the
provisions it might contain under the tIt3;” to
save the act from being unconstitutional.
The question that we are called upon to decide
is whether the title of Rouse Bill No. 377, 49th bSgiS-
lature, admittedly broader than the Act ltself,~ can
stand up under the constitutional requirement that a t$-
tle of an Act must not deceive or mlslead~ the leglsla-
tors, and that it gives reasonable, notice of the ~subject
mstter of the statute to the Lsglslature and to the PO-
ple . It ~1s our opinion that the caption here considered
meets these requirements. Even if there was any consld-
erat Ion given the proposition that the broader title Was
false and decept lve, and therefore lnsuffIclent , we are
of the opinion that In the. final analysis, because of
the foll6vlng rule, the party or court considering the
statute must, as we do, find that this bill is constltu-
tlonal.
“Every reasonable presumption must be
made in favor of the validity of a statute
and before an Act will be declared uncon-
stitut ional it must clearly appear that its
validity cannot be supported by any reason-
abler lntendmsnt or allowable presumption.
These principles apply to every inquiry mad+
into the constltut lonal valldlt y of every
I
Hon. Charles A. Tosch, Page 6, v-131
character of leglslat Iv? enactments 0” Gulf
Insurance Company vs. James, 185 S. W. (2d)
966 State vs. The Praetorians, 186 S. W..
(2dj 973, Koy vs. Schneider, 221 S.W. 880.
While we hold that House Bill No. 377, 49th
Leglslat ure, Is constitutional, it necessarily follows
that the body of the bill Is controlling. As the pref-
erence of employment of veterans was not extended by
this act to the public works of counties, cities, towns,
land schools districts of the State, the act does snot ap-
ply to veterans who seek employment In these subdivisions.
SUMMARY
While the title of House Bill No. 377,
(Veteran’s Preference Act),, 49th Legislature,
is broader than the body of the enactment; It.
was not such as to deceive or mislead the leg- _-: .,
”Islators who voted for the bill, and therefore
such cotidltlon does not render the act uncon- ~
stltutlonal. Since, the’ body of the act did
not extend .the .preference of employment of ,.
veterans on the public works of counties,’ cl!-
les, towns, and school dIstrIct$, and since,
the body of the act Is controlling, the act
does not apply to veterans who seek employ-
ment in these s,ubdIvIsIons. \,
Yours very truly,
ATTORNEX
GENERALOF TEXAS
By cs..~fi&g$y?~~~
Charles P. Atkinson
Assistant
APPROti
- APR. 10, 19%’
CPA:jmg:mrj
: ..
.