Untitled Texas Attorney General Opinion ( 1944 )

OFFICE OF. THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Honorable Sam L. Harrison
~OSeOUtiIk~ Attorney
Robertson County
Franklin, Texas
Dear Sir:
Your letter of J , requesting the
opinion or this department salary of the Deputy
rt, as follows:
s ~aboliehed and the dutler of that
oed upon the office of County atty
at way sinoe. pe have 50 Co ; Co’itrt
question as allowed under art..;, 3%02 or is it prohi-
bited from 80 doing under art 3VlZf-37’ The popula-
tion of Robertson, 1940, being 26710.. Please let me
have’your opinion on tp*ab$e question at your
earlieet convklence.
As stated in your letter, Robertson County has a
population of 25,710 inhabitants aocording to the 1940 Federal
Censgs.
Honorable Am L. &rrison, page 2
drtlole 3QlZti3, ,$ernon*s Annotate.4 Civil Statutes,
reads, in part, as follows:
“Section 1. In all oounties in the State OS
‘Texas having a popu~tion of not lea8 than(25,600)
twenty-five thousand six hundred and not more than
twenty-five thousand eight hundred and eighty-nine
(25,889) ;aooordlng to the last Federal Census, in
which there are ~no distrlot attorneys, the oommis-
aloners’ oourt of said oounty shall, from ,and attar
the effective date of this A&t, oompensate the sher-
irfa or such oountfes upon an aMual salary baais
and ehall fix then salaries of suoh sheriifs in auoh
counties at .not lese than thirty-three hundred ($3300.00)
dollars and not more than thirty-six hundred ($3600.00)
dollars per aMUm* payable in twelve (12) equal monthly
installments, out Of the Officers’ Salary Fund 0;’ 8uoh
oount ies by warrant drawn upon said fund.
%eo..Z. The sheriffs of suoh oounties are
hereby authorized and ~empowered to appoint at least
one deputy sheriff and one speoial deputy sherlrr;
the powers and duties of the speofal deputy shall
be the sane as those of other deputy aherifis and;
In addition, a spee’ial deputy shall be to assist suoh
sheriffs in all matters arising in and connected wfth
the offioial oonduot oil said oftioe, including the
finger printing, photography work, and investigation
work of said otfioe. The oomlssionera* obwts of
such counties shall, from and after the efieative
datd oi this Act, oompeneate suoh deputy sherirrs
and such speoial deputy sherlfrs upon an annual aal-
arp basis and shall fix the salariee of such speoial
deputy sheriffs at not exceeding one thousand two
hundred ($1200.00) do.llars per annum, payable in
twelve’(12) equal monthly installments out of the
Oiiicers*dalary Fund pf 8UOh oounties, by warrant
drawn upon e.a.id Lund by the oo.mnlssloners’ oourt.
The oompensation of the deputy sheriff shall like-
wise beg f ire4 at an annual salary not axoeeding
one thousand ($lOOO,OO) dollare, payable in twelve
(12) equal monthly Installments In lfke manner as
provlded for the payment of the salaries of’ 8peOial
deputy sheriffs, hereinabove set out 8”
---.-YYd win t. Hdrrison, p*ge 3
3.00
Robertson County &as a population oomiag within the
population braoket mentioned in the foregoing statute. Said
statute is applicable to RobartaoA County, however, a serious
queation as to the oonstitutionality 0s aaia statute is me-
sented. Heretofore thia dsparttnent haa oarefull7 oonaidered
many statutes similar to artlole 3912r-3, Vernon s knnotsted
Civil StatUt88, and&M held 8UOh 8tUtUteS uJ2OOmtitUtional ea
suoh statute8 oontravena the nrovisioAa Of Section 56, Article
3 or the Stat6 COAEtitUtiOA.
Seation 56, ArtLo 3 of the State Xonetitution pro-
Vid88, in pUt, a8 fOllOWSI
Vha Legislature ahall no t, lx o epaa
t other-
Wis8 provided tn this Constitution, pa88 any looal
or 8p8Oial laws, authorieingr
uRe&ulutlng the 8ffsir8 0s countlea, oitiea,
towns, wards or aohool alatriota;
n* * *
"Greatin OffiCea, or preeoriblng the. powers~
and duties 0s 0rricer8, in oountiee, cities, towna,
eleation or sohooJ aiatrlot~
It ia olear that the law under oonaideratfon (ArtTale
3912f-3) regulates the affairs of tha oountlea to
and prescribe6 t&8 powers and auti0o of officers. ya
law or la it epsoial and looal la violation of the
ArtZcle 3, S8OtiOIl 587
Aa atateb' in our Opinion No. O-22211
-* l *A law which appl.ies only to a psrt of
a natural olass Of persons or things must predi-
oat8 its inolua:oA Of the part8 and exclusion or
tha balanos upon ohwaoteri8tiaa peauliar to the
part, whioh, oonafdering the Obj8OtS and purpose8
or the law, afford reasonable soma for restrio-
ting the application of the law to the part. Classi-
fication must be reasonable find natUral, not arbl-
trary and caprioioua. ,zrbitrary designation is not
olas8itiaation, The vice 0s local or sp8oiel lam La
that they rest OA arbitrary designation; that they
HonorAble Sam L, Harrison, mge 4
do not e&race and effedt all the 0lass to whioh
they are nuturally related. 26 P.C.L., pp. 81%
816; 12 AIS. Jur. p. 140; Smith Vo State, (Ct. Grim.
App.) 49 3. W. (2d) 739; Randolph V, Stvte (Ct.
Grim. App.) 38 3. W. (2d) 484; Clark v. Pinley,
93 Tex. 151, 54 5. W. 343; City or Port Zorth vr
Bobbitt, 121 Tex. 14, 36 5. W. 470, 41 5. W. (21l)
228. Bezar County v. Tynan, 128 Tt~x. 223, 97 5.
W. fed) 467r
*Beoauso population as a basis for olassifloa-
tlon’has been sustained by tM oourte in respeot’
to legislation on’oertain subjeots, it has been as-
sumed, erroneously, that population braokete will
serve ln all lnstanoea to avoid the condemnation
of the Constitution. This mistaken assumption pre-
oeeds from a failure to note that population has
been sustained as a basis for olasslflcatlon only
in those instanoes where it bore a reasonable re-
lation to the objects and purposes of the law and
was founded upon a rational dlfforenoe in the neoes-
sltlee or oonditlona of the group6 eubjeoted to dlr-
ferent laws. Where it has been determined that,
oonsideriog the objeote and purposes of the law,
differenoes in population afiord no rational baele
for dlsorimineting between grou?e of the 8~ natural
class, olaseitioatlon on the basis of population has
been termed arbitrary ssleotion, and the law has been
held to be apeoial and looal. Randolph v. St&e,
8upra.”
Seotl.on 66, Art1010 3 O? the State Conatltution also
providea, in effeot; that the Legislature shall not pass any looal
or epeoial laws wherr a general law oan be made applioable esoept
special laws ror.the preservation OS gamn and fish of this State
in certain looalitler.
Article 3902, Vernon’s Annotated Civil Statutes is
a general la* $&&ding the compensation payable to deputies
Or the varlous”~riloero mentioned therein. Said statute la
amlioable to Robertson County.
” ‘Honorable &m L. Harrison, p;lge 5
After oarefully oonsldering artlole 39121-3, eupra,
in connection with the foregoing authorities and the ease of
killer, et al, v. El Paso County, 150 Y, ,W. (Zd) 1000, and the
authorities cited timrein, It is our opinion that said article
(39121-3) contravanes the provisions of Seotion 56, Article 3
of the State Constltutlon and is, therefore, unoonstitutlonal
and void.
Article 3902, Vernon’s bnotat8d Civil Statutes, pro-
vides, In part;
*The oonpensatlon whioh may be allowed to the
deputies, assistants or olerks above named for their
servloes ahal& be a reasonable one not to exceed the
following amounts:
“2. In oountias having a population of twenty-five
thousand and one (26,001) and not more than thlrty-
seven thousand five hundred (37,600). Inhabitants,
first assistant or ohiei deputy not to exceed two
thousand dollars($2,000.00) per annum; other assist-
nnts, deputies, or olerke not to exceed seventeen
hundred dollars(~1700.00) per annum eaoh.’ * **
It is noted that you do not atate in your letter what
compensation the deputy sheriff ir receiving at this time. It is
further noted that you do not state that the deputy in quseetion
Is a chief deputy or other deputy as mentioned in the statute.
The roregolng provision of Artiole 3902 (Sea. 2)
is applicable to Robertson County as said county has a popula;t.;n
of 25,710 inhabitants aocordlng to the 1940 Federal Census.
maximumannual salariestb&tlnJ oounty oonunlsslonera~ oourt can
legally, authorize for the ohle? deputy sherlrr of said oounty
ia $2,000. The maximumsalary for other deputy sheriffs oannot
legally exoeed $1700 eaoh per annum. In flxlng the annual sal-
ary of the ohlef deputy sheriff or other deputies, the oomm18-
sioners’ court ia authorized to ilx suoh salaries aa they deem
reasonable, not to exoeed the maximumheretofore tentloned.
Yours very truly
ATTORNEY’
GONXRAL
OF TEX.AY
By*d&
Ardell Willlams
Assistant
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