Case Information
*1 Gerald C. Mann AUSTXN 21. TXXAS ,L ,AdL"g/
.4.l¶T,,<x*i,- d~,,ixI:~R.Yr. A/ /J /&-+ iionorable T. 1.5. Trimble, First Assistant State Superintendent of Publio Instruotion d? Austin, Texas YeI? Dear Sir: Opinion No. O-3123
Be: Effect of county passing out of population bracket olassification ., " by subsequent Federal Census, and ~.applioation to,Gaines County under S. 53. No. 442, Acts 46th Leg.
We are in receipt of your letter of February 4, 194l, requesting an opinion by this department as follows:
.L **'S. B. No. 442 of the Forty-sixth Legis- lature creates county-wide equalization school districts a& for tax purposas. All aounties hav- ing a population of not more than 2,850 acoord- ing to the last preceding Federal Census. . . .* "This Aot applies to Gaines County. Follow- ing the provisions of the above mentioned statute, a county-wide equalization tax has been voted in Gaines County. Since that time the County has gone out of the population bracket set forth in 9. B. No. 442. It is the desire of the people of Gaines County to know if the tax which was voted under the provisions of the above mention- ed statute will continue in force, even though the Federal Census of 104.0 shows a change in population, and Gaines County does not come with- in the population bracket set up in this A0t.n The Act to which you refer, S.B. No. 442, Acts Forty-sixth Legislature, Regular Session, Special Laws, p. 673, Ch. appears in Vernon's Texas Civil Statutes, Pocket Part, as Article 2744e-2. We quote only the first section of the Act:
"Section 1. All counties in this State having a population of not less than twenty-seven hundred seventy-five (2,775) and not more than twney-eight hundred fifty (2,850), according to the last preceding: Federal Census, and contain- ing a valuation of seven Killion ($7,000,000.00) Dollars or more, are hereby created into County- wide Equalization cchool Districts for tax pur- poses, and each such county sllall have the county unit system of education to the extent specified in this Act and may exeroi::e the taxing power conferred on sohool districts by Article 7, Seo- tion 3, of the Constitution, to the extent here- *2 -~ T. M. Trimble, Page 2 IIon. inafter provided, but such taxing power shall
not be exercised until andunless authorized by a majority of the qualified tax-paying voters ‘a
residing therein at an election to be held for such purpose as hereinafter provided."
Following sections provide ingreater detail for the levy, collection and use of the tax, and the duties and authority conferred upon various officers "in all suoh coun- ties," or 'Iof any county subject to the provisions of this Act."
It is clear that the Act is designed as a general law by classification end not as a special aot, for if this were not true, the Act would be unoonstitutional and could not serve as an authorization for any purpose. Article III Section 56, Constitution of Texas; Brownfield v. Tongate, (T. C. A..19371 109 S. W. (2d) 352; City of Fort Worth v. Bobbitt (corn. App. 1931) 36 9. N. (2d) 470; Bexar County v. Tynan, (T. C. A.,19341 69 S. W . (2d) 193; I'iatson v. Sabine Royalty Corporation, (T. C. A. 1936) 120 S. W. (2d) 938. In order to have the semblanoe of a general act the last pre- oeding Federol Census must necessarily be construed to refer to any subsequent Fader:41 Census and not-limited to the 1930 Census or the census in effect when the Act was passed. Authorities supra. Aside from this consideration, this construction would seem to be the plain meaning of the lan- guage employed. See also Article 23, Section 8, R. C. S. 1925, which reads as follov~s:
"The following meaning shall be given to each of the following words, unless a different mean- ing is apparent from the context:
‘1. . .
"88. 'Preoeding Federal census' shall be construed to mean the United States Census of date preceding the action in question and eaoh subsequent census as it oo~urs.~
The courts in giving this construction to the phrase and in passing upon the constitutionality of sim- ilar sots have consistently pointed out the necessity of so drawing the classification that others may become sub- ject to the act when they acquire the same characteristics or qualifications upon which the classification is based. It would seem that the converse necessarily follow, and if those who were once subject to the act should no longer possess the elements of the olassification they they are no longer subjeot to the terms of the act.
In Bexar County v. Tynan, supra, the said: "The act does provide that it is to apply only to counties having more than 290,000 and less than 310,000 inhabitants, accordin:; to the last preceding federal oensus. The last pre- ceding federal census is the census of 1930.
Reference to this census discloses that Bexar County is the only county which falls within this class. Therefore Bexar County is the only
.
[*] ’ Hon. T. M. Trimble, Page 3
oountg affected by the bill, at least until an- other census is taken, which will be in 1940.” fn Watson v. Sabine Royalty Corporatfon, (C.C.A.
1938, writ refused) 120 S. 5. (23) 938, the court had before It for consideration Article 274&e, Vernon's Texas Civil Statutes, whioh is practically identical in its language with S. B. No. 442, except that the population bracket and vqluation is different. The stated.
t ', .. "Argument is advanoed that the use of the
language 'all counties . . . containing a val- uation of Seventy-five Mllion Dollars (~75,000,000.00) or more, are berebg created' then anti there creates suah counties which at t;ie time the bill was en- aoted had the $75,000,000. valuation, and which also had the required population accoraing to the preceding census. If this construction is plaoed upon the Act, then such constitute it a local or special law. And if such, the Act would be unconstitutional. because the require- ments of Sec. 57, drt. 3, Constitution were not complied with in its enactment." t under- soaring ours)
The court refused to give this construction and it is apparent that the same language in S. B. No. 442 oannot be given the effect of establishing a county equol- ization district in Gaines County, which had the requisite population and valuation when the dct was passed, without any reference to subsequent changes in population or valua- tion.
In Smith v, State, (Tex. Cr. App. 1932) 49 S. W. (26) the court had. the following to say with referenos to a population bracket classification according to the "latest United States oensu8.'t
"At the time of the enactment of the stat- ute last mentioned, the latest United States oensus, which was that of 1920, gave McLennan County a population of 82,921. It was the only oounty in the state affected by the provisions of Senate Rill 105. ch. 29. The census of 1930 disolosed that M&&an County haa a population Hence the countg, by virtue of the or 98,682. increased poF;i;liition, i:iad oassed beyond t:le OP- eration of Senate Bill 105, ch. 29, . . , ” . . Again, the.effort of the Legislature,
,‘ by am&&~ Chapter 29, Acts of the Forty-first Legislature, First Called Session, after the cen- sus of 1930 disclosed tiiet PlcLennan County had by of incrensed boaulution ns:scd beyond its virtue operation, to ilola XcLennan County within the purview of the act, manifests, under the deoisions, a DU~DOSO. bv a Dretended olassification. to *4 T. M.' Trimblr Page 4
evade the aonstitutlonal inhibition, and, under the guise of such olassifioation, to enact a law designed for MoLennan County alone."
It is our opinion that when the ~population of Gaines County,exceeded the maximum population provided in S. B. No. 442, Aots Forty-sixth Legislature, according to the 1940 Federal Census, it t!lereby was excluded from the classification therein provided and passed from under the provisions of the Act and has lost any authority it might have theretofore had by virtue: of the provisions of said Aot.
This opinion is not to be construed as an opln- ion upon the constitutionality of 5. B. No. 442, Acts Forty-sixth Legislature, Regular Session. Yours very truly
./ AT!?ORMEYGEERALOFTEXAS By/cl/ Cecil C. Cs&aok ., ,,’ : Cecil C. Cammack Asslstant ,I CCC:J.&jrb ATTORNEY GEWRAL OF w
APPROVED OPINION COHMITTEE BY B%B, Chairman