Untitled Texas Attorney General Opinion

Honorable T./M. Trlmble
First Assistant
State Superintendent of Public Instruction
Austin, Texas
Dear Sir: Opinion No. O-6542
Re: Constitutionality of Article
27,OOD,V.A.C.S.
We are in receipt of your request for opinion dated
April 19~;1945. As we construe your request you desire our
opinion as to the constitutionality of the hereinafter quoted
portion of Article 2700 D, Section 2, Vernon's Annotated Texas
Civil Statutes, towlt:
,,
. . . and the commissioners' courts of the
countles.having a population of not less than
100,000 nor more than 1 0,000 may expend out of
the general fund of sai3)counties any sums not
exceeding the sum of $1200 per annum, to defray
the expenses incurred by said county superlnten-
dent which said sum or any part thereof shall be
paid by paid commissioners upon certificate of
said superintendent that the expenses have been
lncurrediin the discharge of his duties as such
superintendent."
Said above quoted statutory provision Is a portion of
S.B. 268, 4lst Leg., Reg. Session, 1929. Said S.B. 268 reads
as follows:
"COUNTY SUPERINTERDENT - SALARY
S.B. No. 268 Chapter 148.
"An Act to fix the salary of the Superin-
tendent of Public Instruction in each
County in Texas, having a population
of not less than 100,000 nor more than
150,000 according to the last Federal
Census; providing for office expenses
in such Counties; repealing all laws
and parts of laws in conflict and de-
claring an emergency.
.,’ _
Hon. T. M. Trimble - page 2 O-6542
"BE IT ENACTED BY TEE LECISLATBBE OF THE STATE OF TEXAS:
"Section 1. That the salary of the County
Superintendent of Public Instruction of each County
in Texas, having a population of not less than
100,000 nor more than 150,000 according to the
last Federal Census, shall.'from:
and after passage
of this Act be not less'than the sum of $2,800.00
per annum, or more than the sum of $3,800,00 per
annum.
"Sec. 2. In making the annual per capita
apportionment to the schools of the Counties having
a pop?llationof not less than 100,000 and not more
thaz 150,000 the County School Trustees shall also
make ani annual allowance out of the State and :'.
County Available Funds for the~payment of the salary
of the Superintendent of Public Instruction not less
than $2,800.00nor more than $3,800.00 and the
Commissioner's Courts of the Counties having a pop-
ulation of not less than 100,000 nor more than
150,,000may expend 'out.of the general fund of said
counties any sums not exceeding the sum of $1200
per annum, to defray the expenses incurred by said
County Superintendent which said sum or any part
thereof shall be pafd by said Commissioners upon
certificate of sald~Superintendent that the expenses
have been incurred in the discharge of his duties
as such superintendent.
"Sec. 3. ~3aid salary to be paid monthly
upon the order of the county school trusteed, PFOY
vided that said salary to the Superintendent of
public instructionfor the month of September shall
not be paid until the SuperFntendent shall have
presented a receipt or certificate from the State
Superintendent of Public Instruction showing that
he has made all reports required of him; that the
expenses provided for herein shall be paid monthly
by the County Treasurer on the order of the Commls-
sloner's Court.
“Set o 4. All laws and parts of laws in con-
flict herewith are hereby repealed.
"Sec. 5. The fact that the present salaries
of the.County Superintendents of Public Instruction
,ofCountles having a population of not less than
100,000 nor more than 150,000 are inadequate and out
of proportion to the labor and responsibility attached
Hon. T. M. Trimble - page 3 o-6542
to the office, and that there Is no adequate pro-
vision for the payment of the necessary expenses
of the County Superintendent In such Counties,
creates an emergency and an tmpratlve public
necessity that the constitutional rule requiring
bills to be read on three several days be sus-
pended, andsaid rule is hereby suspended, and
this Act shall take effect and be in force from
and after its passage and it is so enacted.
"Effective March 9, 1929."
The emergency clause used the plural terms "County
Superintendents" and 'counties" as coming within the population
brackets of the Bill; whereas, in truth and in fact, only one
county, towit, El Paso County, Texas, came withIn the population
brackets set out In the bill, according to the 1920 Federal
census, the last preceding Federal census prior to the enactment
of the Bill. Under the 1930 Federal ,censusEl Paso County and
Jefferson County came within the population brackets of the Act.
Under the 1940 Federal census El Paso, Jefferson, Hldalgo,~~
McLennan and Travis Counties came within the population brackets
set out in said Act.
Article 2700, Vernon's Annotated Texas Civil Statutes,
reads as follows:
"Art. 2700. Salary of the County
Superintendent
"Section 1. The elective County Superinten-
dent shall receive from the Available School Fund
of their respective counties annual salaries based
on the scholastic population of such counties as
follows:
Population Amount
3,000 or less 4;,;“0; .g
3,001 to 4,000
4,001 to 5,000 2'2oo:oo
5,001 to 6,000 2'400.00
6,001 to 7,000 2:600.00
7,001 to 8,000 2.800.00
8,001 to 9,000
9,001 to 12,000
12,001 to 15,000
15,001 to 30,000
30,001 to 40,000
40,001 to 50,000 4;200.00
50,001 and over 4,800.oo
Hon. T. M. Trlmble - page 4 o-6542
"~Provldea,however, in counties having more
than three thousand, five hundred (3,500) scholas-
tics and less than eight thousand and one (8,001)
scholastics, where no supervisor is employed and
where the total expense for office assistants does
not exceed Eighteen Hundred Dollars ($1800)per
annum, the salary of the County Superintendent may
be set at a sum not to exceed Three Thousand Dol-
lars ($3,000) per annum by action of the County
Board of Trustees.
"Inmaking the annual budget for County
Administration expense the County School Trustees
shall make allowance out of the State Available
School Fund for salary and expenses of the office
of the County Superintendent and the same shall
be determined by the resident scholastic population
of the county. It shall be the duty of the County
Board of Trustees to file the budget for County
Administration expense with the State Department
of Education on or before September first of each
scholastic year, the budget to be approved and
certified to by the President of the County Board
of Education and attested to by the County Super-
intendent. The compensation herein provided for
shall be paid monthly upon the order of the County
School Trustees ; provided that the salary for the
month of September shall not be paid until the
County Superintendent presents a receipt from the
State Superintendent showing that he has made all
reports required of him. The County Superintendent,
with the approval and the confirmation of the
County Board of Education, may employ a competent
asssistant to the County Superintendent at an
annual salary not to exceed Two Thousand Dollars
($2,000) and may also employ such other assistants
as necessary provided the aggregate amount of the
salaries of such other assistants shall not ex-
ceed Twelve Hundred Dollars ($1200) annually;
provided that counties having a population of more
than one hundred and twenty-five thousand (125,000)
according to the last Federal Census may employ a
competent assistant to the County Superintendent
at an annual salary not to exceed Twenty-eight
Hundred Dollars ($2800) and may also employ such
other assistants as necessary provided the aggregate
amount of the salaries of such other assistants
shall not exceed Eighteen Hundred Dollars ($1800)
'annually; and the County Board of Education.may make
further provisions as it deems necessary for office
Bon. T. M. Trlmble - Page 5 0 -6542
and traveling expense of the County Superintendent;
provided that expenditures for office and traveling
expenses of the County Superintendent shall not be
less than Three Hundred Dollars ($300) and not more
than Eight Hundred Dollars ($800) per annum, such ex-
pense shall first be proven by affidavit therefor,
and said Board is hereby authorized to fix the salary
of such assistants and pay same out of the same funds
from which the salary and expenses of the County
Superintendent are paid.
"Sec. 2. The County Superintendent of Public
Instruction may, with the approval of the County
Board of Education, employ one or more school super-
visors to assist in planning, outlining, and super-
vising the work of the Public Free Schools in the
county which Is under the supervision of the County
Superintendent of Public Instruction. Said supervi-
sor or supervisors shall at all times work under the
supervision and direction of the County Superinten-
dent of Public Instruction, as other assistants are
required to do, and must have evidence of proficiency
in rural school supervlsion and mst be the holder
of at least a Bachelor of Science Degree or higher.
Such supervisor or supervisors may receive a salary
of not to exceed Two Thousand Dollars ($2,000) per
annum, to be paid out of the same funds and in the
same manner as that of the County Superintendent of
Public Instruction and other assistants.
"Sec. 3. It shall be the duty of the State
Superintendent to remit to the depository banks of
each of the respective counties the amount of the
State Available School Fund provided in the budget
of each county, remittance to be made in October and
February of each pcholastlc year, in equal amount.
"Sec. 4. The State Superintendent of Public
Instruction is hereby authorized to issue and trans-
mit to county officials all instructions necessary
for the proper observance and administration of this
Act.
"Sec. 5. All General and Special Laws in con-
flict herewith are hereby repealed except such laws
as provlde for a part of the office expense to be
paid out of the general revenue of the county, except
that the repealing clause shall not apply to any
county that levies a special tax for the maintenance
of the office of the County Superintendent In whole
Hon. T. M. Trimble - page 6 o-6542
or in part. As amended acts, 1941, 47th Leg. p.
;;c&,;hi.!37; Acts 1943, 48th Leg. p. 697, ch.
,
Article 2700, V.A.T.C.S., supra, clearly repeals the
salary provisions of S.B. 268, supra (codified as Article 27ooD,
V.A.T.C.S.). However, Section 5 of Article 2700, supra, clearly
states that the repealing clause is not applicable to~ang laws
which provide for a part of the office expense to be paid out
of the general revenue of the county.
There are many statutes, too numerous to serve any
useful purpose In quoting here, or referring to specifically
here, of very narrow population brackets, and of varied popula-
tion brackets, dealing with and purportedly authorizing the
Commissioners' CouPts to expend county funds from the general
revenue to assist in paying the expenses of county superinten-
dents. Undoubtedly a very large portion of same are unconstl~-
tutlonal as being local or special laws in violation of Article
III, Section 56 of our State Constitution. The amounts allow;,
able range from $200.00, $300.00, $600.00, $900.00 to $1~;200.00
per annum. When viewed as a whole there seems to be no real
and substantial basis for the varlous~classifications made.
(~Withone exception, towit, Art. 2700a referred to in 3 infra.)
For example, we will point out a few examples:
Art. 27OOd-28 V.A.T.C.S applicable to,countles
withinpop~iation brackets ig7 000 to iG8 000 ana 32 400 to
32,800; amount payable by Commissioners’ Court to Co&ty~Super-
lntendent out of the general fund for expenses not to exceed
$300.00 per annum.
2~. Art. 2700b, V.A.T.C.S., applicable to counties of
not less than 60,000 and not more than 73,000; amount payalbe
by Commissioners' Court to County Superintendent out of the gen-
eral fund for expenses not to exceed $600.00 per annum.
3. Art. 2700a, V.A.T.C.S., applicable to counties of
more than 210,000; amount payable by Commissioners' Court to
County Superintendents out of the general fund for traveling ex-
penses not to exceed $900.00 per annum. (This article is pro-
bably constitutional).
4. Art. 2700a, V.A.T.C.S., the article under consla-
eration here, which allows the top amount of not to exceed
$1200.00 per annum for such expenses.
There is no allowance whatever for county superinten-
dent's expenses to be paid from the county general revenue fund
for counties between the brackets of 150,000 (the top bracket of
Hon. T. M. Trimble - Page 7 O-6542
Art. 2700d) and the bracket of 210,000 (the bottom bracket of
Art. 2700a, V.A.T.C.S.) with the lone exception of the bracket
In Art. 2700d, V.A.T.C.S. (1 7,000 to 198,000 which allows a
maximm of $600.00 per annum7 .
Thus we see the resulting hodge podge of laws enacted
upon the subject under discussion. Counties having larger popl-
lation than 150,000 are clearly discriminated against.
The case of Bexar County v. Tynan, 97 S.W. (2d) 467
holds, among other things:
"1 . Act reducing salaries of officers in
counties of over 290,000 and less than 310,000
population purports on its face to be a general
law and not a local law. (Vernon's Ann. Civ. St.
art. 3912b: Const. Art. 3, 856, 57.
"2 . Act reducing salaries of officers in
counties of over 290,000 and less than 310,000
population was not rendered a 'special' or 'local
law' because it applied to only one county in state
at time of passage, since it was not so framed as
to exclude probability that it would apply to other
counties in future (Vernon's Ann. Civ. St. Art.
3912b; Const. art. 3, Sec. 56, 57).
"3 . Legislature may, on proper and reasonable
classification, enact general law, which at time of
enactment Is applicable to only one county provided
application is not so inflexibly fixed as to prevent
It ever being applicable to other counties.
"4 . Legislature may classify counties on
basis of population for purpose of fixing compen-
sation of county and precinct officers but class-
lflcation must be based on real distinction and
must not be arbitrary device to give what Is in
substance a local or special law, the form of gen-
eral law.
"5 . Courts in determining whether a law is
public, general, special, or local will look to
its substance and practical operation rather than
to Its title, form, phraseology, since otherwise
prohibition of fundamental law against special leg-
islation would be nugatory.
"6 . To justify placing of one county In very
limited and restricted classification by Legislature,
Hon. T. M. Trimble - page 8 O-6542
there must be.some reasonable relation between
situation of counties classified and purposes
and objects to be obtained, and classification
cannot be adopted arbitrarily on ground which
has no foundation in difference of situation or
circumstance of counties placed in different
classes.
"7 . Act reducing salaries of officers in
counties of over 290,000 and less than 310,000
population held unreasonable and arbitrary In its
classificationand void as a 'special law', where
it applied only to Bexar county, and where maxl-
mm compensation for county officers was reduced
below that in counties of 37,500 and to less than
half compensation allowed in other counties of
more than 150,000 (Vernon's Ann. Civ. St. Art.
391213;Acts 1930, 41s.tLeg. 4th called Sess. C.
20; Const. art. 3, Sets. 56, 57).
“8 . Substantial differences in population
of county can be made basis of leglslatlon fixing
compensation of county officers on theory that
work devolving on office is in some degree pro-
portionate to population of county.
"9 . Where Legislature Ignores obvious facts
that work of county officers is proportionate to
population and classifies counties In such way
that compensation of officers of counties having
large population is fixed far below compensation
allowed like officers In small counties, classifl-
cation is arbitrary and has no true relevancy to
purpose of legislation."
We quote from the case of Miller v. El Paso County
(Texas Supreme Court) 150 S.W. (2) 1000, as follows:
"Section 56, Article III of the State Con-
stitution, Vernon's App. St.,.reads, in part,
as follows:
"'sec. 56. The Legislature shall not, ex-
cept as otherwise provided in this Constitution,
pass any local or special law, authorizing:
,I
0 . e e .
"'Regulation the affairs of counti'es,cities,
towns, wards or schoo,ldistricts,
Hon. T. M. Trimble - page 9 o-6542
"'Creating offices, or prescribing the
powers and duties of officers, in counties,
cities, towns, election or school districts;
91I
"And in all other cases where a general law
can be made applicable, no local, or special law
shall be enacted. . . .I
"The purpose of this constitutional Fnhibi-
tion against the enactment of local or special
laws Is a wholesome one. It is intended to pre-
vent the granting of special privileges and to
secure uniformity of law throughout the State as
far as possible. It is said that at an early
period in many of the states the practice of
enacting special and local laws became 'an effi-
cient means for the easy enactment of laws for
the advancement of personal rather than public in-
terests, and encouraged the reprehensible practice
of trading and 'logrolling'. It was for the sup-
pression of such practices that such a provision
was adopted in this and many of the other states
of the Union.
"Notwithstanding the above constitutional
provision, the courts recognize in the Legis,la-
ture a rather broad power to make classifications
for legislative purposes and to enact laws for
the regulation thereof, even though such leglsla-
tlon ma be ap licable on1 to a particular class
or, in Y act, af feet only tK e Inhabitants of a
particular locality; but such legislation xmst
be intended to apply uniformly to all who may
come within the classification designated in the
Act, and the classification must be broad enough to
include a substantial class and mst be based on
characteristics legitimately distinguishing such
class from others with respect to the public pur-
pose sought to be accomplished by the proposed
legislation. In other words, there must be a
substantial reason for the classification. It
must not be a mere arbitrary device res,orted,to
for the purpose of giving what Is, In fact, a
local law the appearanc'eof a general law. city
of Fort Worth v. Bobbltt, 121 Tex; 14, 36 S.W.
2d 470, 41 S.W.2d 228; Bexar County v. Tynan, 128
.
Hon. T. M. Trimble - page 10 O-6542
Tex. 223, 97 S.W. 2d. 467; Clark v. Finley, Comp-
troller, 93 Tex..171, 54 S.W. 343; Supreme Lodge
UnLted Benevolent Ass'n v. Johnson, 98 Tex. 1, 81
S.W. 18; Smith v, State, 120 Tex. Cr. R. 431, 49
S.W.2d 739; Randolph v. State, 117 Tex. Cr. R.
80, 36 S.W. 2d 484; Fritter v. West, Tex. Civ. App.
65 S.W.2d 414, writ refused; State v. Hall, Tex.
Clv. App. 76 S.W.2d 880; Wood v. Marfa Ind-.School
Dlst. Tex. Civ. App. 123 S.W.2d 429. AS said in
Leonard v. Road Maintenance District No. 1, 187
Ark. 599, 61 S.W.2d 70, 71: 'The rule Is that a
classification 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 reasonable relation between the situation of
munlcipalltles classified and the purposes and
objects to be attained. There must be something
...... which in.some reasonable degree accounts
for the division Into classes.' . . . .
"We are therefore met at the outset with a
law which, under facts well known at the time of
its adoption, was applicable only to a single
county. Clearly then it Is a local law and must
fall as such, unless it can be fairly said that
the class so segregated by the Act Is a substan-
tial class and has characteristics legitimately
distinguishing if from the remainder of the State
so as to require legislation peculiar thereto.
In this instance the classLflcation is made to
rest entirely on the population of the county and
a city therein. Resort to population brackets
for the purpose of Classifying subjects for legis-
lation is permissible where the spread of popu-
lation is broad enough to Include or segregate a
substantial class, and where the population bears
some real relation to the subject of 1eglslatiOn
and affords a fair basis for the classification.
It has been legltlmat8ly employed in fixing fees
of offices in certain cases Clark v, Finley,
Comptroller, 93 Tex. 171, 178 54 S.W. 343) but
even then it Is permissible o;ly where the s=ad
of population Is substantial and is sufficient
to 1nClUde a real class with characteristics which
reasonably distinguish it from others as applied
to the contemplated legislation, Bnd affords a
fair basis for the classification. Bexar County
v. Tynan, 128 Tex. 223, 97 S.W. 2d. w
(Underscoring ours).
Hon. T. M. Trimble - page 11 O-6542
Answering your question, we hold the provisions of
Article 2700d, quoted in your letter, to be vold and unconsti-
tutional, as being a local or special law in violation of Article
III, Section 56 of our State Constitution. It follows, there-
fore, that the Commissioners' Court of El Paso County is not
authorized to pay out any funds of the general revenue of the
countg~to the County Superintendent for expenses under said
void Act.
Yours very truly
ATTORNEY GENERAL OF TEXAS
By s/Wm. J. Fanning
Wm. J. ~Fanning
Assistant
WJF:bt:wc
APPROVED MAY 5, 1945
s/Carlos C. Ashley
FIRST ASSISTANT
ATTORNEY GENERAL
Approved Opinion Committee By s/BWB Chairman