Untitled Texas Attorney General Opinion ( 1942 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
ion02able Charles :‘. ;:%iEiiill
county ;dAtor
iip
ton county
.?ankin,Texas
Sear Sir:
opinion of this depa
as follows:
ion on Sena to Co ivith
Comaissi3ners
ban 3 persons per square :?il``
of
lg the Comissimers are drawing
"Please rush this opinim ell you 2o;lsiblycan
as I must rely on it in me of IU;~major perforinances.
1 would appreciate your kindness ir,wiring me col-
lect if Lilyour opinion the above i;efitimedlaw is
found to be unconstitutionsl.g*
'HonorableCharles F. Herohill, Page 2
Senate Yill No. 213, Acts of the 47th Legislature,
Zetular Session, including the caption, reads as follows:
tc5.3. ;~yoe
213
Y'AnAct providi, for compensation to be
paid County Commissioners for their
services as 3X-officio >oad Commis-
sioners; providing for reimbursement
of County Commissioners for the use
b::such Commission%rc of their yer-
sonal automobiles in travelins ln
the discharge of their duties bs;Ex-
officko iioa:;
ComLssioners; and limit-
ing the application of this :;ctto
counties having an assessed valuation
of not less than Twenty Killion
($20.000.000.00) Dollars and a popu-
lation of not more than three (3)
persons per square mile; and declar-
igg an emergwcy.
"BE IT ENACTED BY THE LEGISINJ%JREOF THE STATE OF
"Section 1. Each County Comissionsr acting
as Road Commissioner and faithfully discharging the
duti6s imposed upon himas such by law or by the
Commissioners* Court, may, by order of the Commis-
sioners' Court, b6 allowed, as comppensationfor
such services in addition to his salary as such
County Gommis$+.onernot to 6XC66d the sum of One
Hundrsd ($100.00) Dollars par month, to b6 paid
monthly out of the .boadand &ridge l!Imdof the County.
"SEC. 2. The Cojnmissioners'Court of such
Counties may allow the Commissioners using their
psrsonal aUtOmobil6s for traveling in the discharge
of their duties as Road COm.i.SSiOn6rSnot to excstd
Four (4) Csnts psr mile actually and nscessarily
traveled by said CornmisSionerin his personal car
in the discharge of such dutias, said amount to be
paid out of the Road and Bridge Fund of the Counties.
An account for such expsnses Shall be submittsd by
Honorable Charlss 3'.Hemphill, Page 3
each Commissioner monthly, and no such account shall
be approved by the Commissioners' Court unless the
Commissioner presenting said account shall make oath
as to the number of miles actually and necessarily
traveled by him in his personal car in discharging
his duties as Road Commissioner, and that the account
presented by him is just, due, end unpaid.
"Sec. 3. The,provisions of this Act shall ap-
ply only to Counties haviug an assessed valuatinn
of not less than Twenty Million ($20,000,000.00)
Dollars and a populaticn of not more than three (3)
persons per square mile.
"Sec. L. The fact that the statutes now in
force fixing the salaries and compensation of Coun-
ty Commissioners fix inadequate compensation for
the said Commissioners of said Counties, because of
extra responsibility imposed on the County Commis-
sioners of those Counties due to the size and valu-
ation of the Counties and the large amount of County
maintained roads in said Counties creates an emer-
gency and a public necessity requiring the suspen-
sion of the Constit,utionalRule providing that bills
shall be read on three several days in each House
and the same is hereby suspended and this Act shall
take effect from and after its passage, and it is
so enacted."
After a careful search of the statutes we fa,ilto
find any statute imposing added and new duties upon the Coun-
ty Commissioners of Uptoh County not imposed by ganeral law.
Senate Bill No. 213, supra, does not impose added and new
duties upon the County Commissioners not imposed by general
yi&for which it undertakes to provide additional compensa-
w6 think that the abovementioned act was enacted by
the legislature without any intention of constituting the
same a local road law for the maintenance of public road and
highways in Upton County. Sufficient proof that it was not
intended as a special road law for Upton County, as author-
ized by Section 9, Artiale VIII of the State Constitution,
is the fact that it was 'not specifically enacted as such. If
it had been the desire, pugpose and intention of the Legisla-
ture to pass a special road law for Upton County, it could
have easily manifested same by passing it as such.
:
Honorable Charles F. Hemphill, Page .!+
Section 56, Article 3, of the State Constitution
reads in part as follows:.
"Section 56. The Legislature shall not, ex-
cept as otherwise provided in this Constitution,
pass any local or special law, authorizing: . . .
regulating the affa-irsof -zOuntisS, Cities, town@,
wards or school districts. . . . and in all other
cases where a general lawcan be made applicable,
no local or special law shall be enacted; . . ."
Referring to the above provisions of Article:3 of
the Constitution, it is~stated in the case of Miller v. El
Paso County, 150 S. W. (2d) 1000
"The purpose of this Constitutional inhibition
against the enactment of local or special laws is
a wholesome one. It is intended to prevent the
granting of special privileges and to secure uni-
formity of law throughout the State as fan as pos-
sible. It is said that at an early period in many
of the states the practice of enacting special and
local laws became *an efficient means for the easy
enactment of laws for the advancement of personal
rather than public interests, and encouraged the
reprehensible practice of trading and wlogrollilig".1
It was for the suppression of such practices that
such a provision was adopted in this and many of
the other states of the Union.
*Notwithstanding the above constitutional pro-
vision, the courts recognize in the Legislature a
rather broad power to make classifications for le-
gislative purposes and to enact laws for the rsgu-
latinn thereof, even though such legislation may
be applicable only to a particular class or? in
fact, affect only the inhabitants of a particular
locality; but such legislation must be intended
to apply uniformly to all who may come within the
classification designated in the Act, and the class-
ification must be broad enough to include a substen-
tial class and must be based on characteristics
legitimately distinguishing such class from others
with respect to the public purpose sought to be
accomplished by the proposed legislation. In other
Honorable Charles F. Hemphill, Fage 5
words there must be a substantial reason for the
classification. It must not be a mere arbitrary
device resorted to for the purpose of giving what
is, in fact, a local law the appearance of a gen-
eral law. ... *The rule is that a classifica-
tion cannot be adopted arbitrarily upon a ground
which has no foundation in difference of situation
or circumstances of the municipalities placed in
the different classes. There must be some reason-
able relation between the situation of ausicipal-
ities classified anidthe purposes and objects to
be attained. There must be something . . . which
in some reasonable degree accounts for the division
into classes.'n
It will be noted that the Act in questicn by its
terms is made applicable only ih those counties having a
population of not more than three persons per square mile
and having an assessed valuation of not less than $20.,000,000.
The peculiar limitaions employed by the Legislature in this
instance to segregate the class to be affected by the Legis-
lation not only bears no substantial relation to the object
sought to be accomplished by the Act, but the purported class
attempted to be so segregated is, in fact, not a class dis:
tinct in any substantial manner from others in this State.
There is nothing peculiar about a county having a population
of not more than three persons per s uare mile and having an
assessed valuatinn of not less than %.20,000,000 that marks
it a suitable and peculiar field for the expending of public
funds for the purposes mentioned in the Act, as distinguished
from other counties having substantially the same valuation
and population. The slight variation between the po.nulation
and valuation mentioned in the Act does not distingu!ishcit
in any manner from other counties having substantially the
same population and aSSeSS6d valuation that is germane to the
purpose of the particular Legislation. In other words, what-
ever difference there is in population and assessed valuation
dO6S not appear to be material to the object sought to be ac-
complished. After having carefully considered the matter, we
are convinced that the attempted classification is unreason-
able and bears no relation to the object sought to be accmm-
plished by the Act and that as a consequence the Act is uhcon-
stitutional and therefore void.
In viea of the Miller case, supra, and the cese of
Jameson et al. v. Smith, 161 S.W. (2d),52O, and the authori-
ties cited in these cases, it is the opinion of this department,
Honorable Charles F. Hemphill, Page 6
as above stated, that the Act under consideration is uncon-
stitutional and therefore void. Therefore, it is our further
opinion that the County Commissioners are not entitled to
any additional compensation under the abovementioned Act nor
are they entitled to any traveling expenses unde,rthe same.
The CountyCommissioners are only entitled to the compensa-
tion as provided by eneral law (Article 2350, Vernon's Anno-
tated Civil Statutes‘i .
Trusting that the foregoing fully answers your in-
quiry, we are
Yours very truly
ATTORNEY GENERAL OF T2X.Q
BY s
Ardell William
Assistant
AK:mp
APPROV3:;)
OCT 5, 1942
s Gerald C. Mann
ATTORKXY GFNERAL OF TEXAS
'~ APPROVED
OPINION
COMAWlTEE
BY BM3
CBA-