Case Information
*1 GENERAL OF I= OFFlCE OF THE ATfORNW AUBTlN
OllOYCI SPLL=Rs
ryou*l* cci*rrL This Opinion
Oven ules Opinloa Honorable H. Pat Edwards # O-6776 District ,Attorney
Records Building
Dallas 2, Texas Opinion No. O-6846
Dear Sir:
Re: Coastitutiooality of H.B. 555, 49th Leg., 1945, (titlcle 2327-a, Y.A.C.S.), concerning salaries of oourt r+ortere.
We have received Jtour letter of recent date re- questing an opinion from this departsient OQ the .abovd sab- ject matter.
House kill 555, Chapter 291, .ihts of the 49th *gislatwe, 1945, is as. follows:
“section 1, That Article 2326, Chapter 13, Revised Civi.1 Statutes of Texas, 1925, and all subsectioas of A.?tlc~le 2326, be ati the same are hereby amended so as to hereafter read as sollows : 2326.
“l&ticle “‘The official shortWnd reporter of each’~’ Judloial District and Court, civil or crI.ninal, the official shorthand reporter of each County Court at Law,’ civil or criminal, shall receive a salary of not less than Two Thousand, Four Hundred Doj_tara ($2,400) per annum and aot more than Three Thou&d, Seven Hundred an.d Fifty Dollars ( $3,750). per annum. Said salary shall be fixed and determiaed by the District. Judges of: the Judicial Districts, ~cl.vi~.or crlminal.,~ aad the Judges of the Colinty Court.-at Law, civl~ OI? criminal, who shall enter an.-order ‘in the minutes *2 ,*, i
Honorable H. Pat Edwards, page 2
of the Court, in each county of the district, which shall be a public record and open for public inspection, stating s-pacifically the amount of salary to be paid said re>,rter. Tee District 5n.;(.ge s?lall file a copy of 5.3id order xith each Ckxmls5innere Court of the D:lstrict. The salary ehkllbe in additron to the transcript fees and tr;Iveli;j3 acS hote:i expenses of official short- hand reporters, as is nom provided by iaw.
“‘The salary shall be paid monthly by the Commissioners Court of the county or cciunties in the Judicial Districts, cicI.i or criminal, and the County Courts at Law, civil OS criminal, out Of any available SUtkd Of the C0UOty~ or counties that the ConMssiocers Court may desire to psy the same, aonordiog to At+.c:!es 2326H and 23--A.
nor more than
“sec. 2. The provisions of this Act are and, shall be held and Con&trued to be cumulative of all. General and Special laws of this State on the subject treated of and embraced in this &zt when not in conflict thereewith, but in case of 'con- flict, la whole or In part, this Act shall con- trol'ln so far a8 any coaSllct~exists. All laws... and parts of laws in conflict with said Act are hereby repealed.
"Provided, however;thls Act does not repeal rior amend ‘h?t'iClQB 232&A, 2326~, and 2327~ 0s .Chapter 13.
"Set . 3. The crowded condition cf the sal- endar tied the fact that existing economic condi- tions have brought about an increase In the prices 0-4 all commodities and that the official short- hand reporters are being paid below the present standard for comparable SQrVbZQ8, create an *3 Honorable H. Pst Edwards, page 3
emergency and an Imperative public necessity that the Constitutional Rule requirin, bills to be read on three several days In QaCh Rouse be suspended, and said Rule Is hereby suspended, and that this Act &all take effect and be in full fOrCQ and effect from and after Its pdssage, and it is so QUaCted.'
You have raised the question as to the coostitu- tionalitg of H.B. 555 because of the exception underlined above. It is.your opinion that said exception amounts to fixing a classification which is arbitrary and has co true relevancy to the purpose of the legislation, and therefore, H.B. 555 is unconstitutional because it violates section 56 of Article III ,of our State Constltutlon.
Section 56 of Article III ia In part as .Sollows: "SQC. 56. The Legislature shall not, except
as otherwise provided In this Constitution, pass any local or special l~aw, authorieing:.
11 . . . .
"Regulating the affaira of counties, hities,' towns, wards or school districts;
II . . . .
"Creating offices, or prescribing the powers and duties of officers, In counties, cities, towns, election or school districts;"
In thQ case of BQXar Countgv: Tynan, et al, 97 S.W. (2d) 467, (Commission of Appeals), the Court IU COnStr~iing the above quoted section of the State Constitution StKitQd that:
"The Legislature may, upon a proper and rea- sonable classification, enact a general law which at the time of its enactment is applicable to only one county; provided its application is not.
so inflexibly fixed as to prevent it ever being applicable to other counties. . . .
Honorable II, Pat Edwards, page 4
“Rotwithstanding it Is true that the Legis- lature may classify counties upon a basis of for the purpose Of fT?cing compensa- pOpUbti.On tion of county and precinct officers, yet in do- 1u.g so the classification must be based upon a real distinction, and must not be arbitrary or a device to give what is In substance a local or special law the form of a general law. It is well recognized that in determining whether a law is public, general, special or local the courts Will look to its substance and practical operations rather than to its.title, form and phraseology, because otherwise prohibitions of the Sundament- al law against special legislation would be nuga- tory. ’ 25 R.C.L., 815, and authoritLes cited . . . .
“In the case of Clark v. Finley, 93 Tex. 171, 54 S.W. 343, this court recognized that substantial differences In populations of coun- ties could be made a basis of leglslatioa SIxIng compensatia of off Fcers, on the theory, as the court clearly recognized, that the work devoiv- bg upOc ac OffiCQr Was in SOme de@W? propor- tionate to the population of the county. This has frequently been recognized by courts as cre- ating a sufficient distinction to justify a larger compensatloa for county officers In coun- ties having a large population as compared with compensation to like officers in counties having
In the case of Miller et al v. El Paso County, 150 9. ii. ( 2d) 1003, the Supreme Court held:
“Resort to population brackets for purpose of classifying subjects for legislation is *5 Honorable II. Pat Edwards, page 5
permissible where spread of population is broad enough to include or segregate a substantial class and population bears some real relation to subject of legislation and affords fair basis for classification . . , .
It has been legitimately employed
in fix;& .iees of offices in certain cases but even then it is permissible only where the’spread OS population is substantial and ia sufficient to include a real class with characteristics which reasonably distinguish it from others as applied to the oontemplated legislation, and affor#s a Tai?? bas’is for the classification. I’ (End e&sccr- ipg ‘ours)
EOr additional authorites on the above-quoted rules see Lewis ea.), p. 397 et seq; Sutherland Statutor
of Ft; W0rth.v. Bob-. (2d) ,228; Supreme 1; ‘81 S.W. 18; Smith v. State, 49 S.U. (26) 739; Rand01 46 3.5-T. ir. Stite, (2d) 484; Fr1tter.v. West, 65 S.W. (2d) 14, wrlt refused; r State v. Rally 76 S.W. (26) 880~ Wood .v.. Marfa Ind. School mat ., 123 S,W. (2d) 4293’ Leonard v. Road Malntnnance Ilist. No.. 1, 187 Ark. 599, 61,~ 9.w.~ (2d)?O.
It will be noted that the provisiona of K, B. 555, of not less than two hundred and Judic’Lal Mstrlct Court altuated In smaller~ doiant~ies @ud shorthand‘ reporters of each Judicial District Court situated in larger counties to receive a greater c,ompensation for their .serviee~ than like .officers in ‘Bexar and Tarr.ant Coun- tiea., ‘Applying the above-quoted prihciplesof statiat&y construction :and constFtut,ioaal flaw to our preseht la4 (Ii. B,. ,555); hit is our opinion that the Le@slatU?e by’ put- ting in the exceptron, c.lause in JiGuse ,Bill, 555,‘fixed g Class- ification ,wh$ch is: arbi’trary and,which had no tr’ue relevancy to the purpose of ~the; leg&slation.; Therefore; ‘St is oQr opln- ion that~ the, exception clause to II. B. 555, supra, Xs ICI~- ‘and void. CohStitutiOnal : (& .1 :,
in .I. :
Iiotxor~able H. Patz Fdwerds, page. 6
The question as to whether or not H. B. 555 can stand without the exception clause necessarily-follows. We answer this question in the negative.
In the case of Anderson v. Wood, 152 S.W (2d) 1084; the Supreme Court stated the following:
"It is very well settled that a statute ex- cepting certain counti,.> arbitrarily from its operation is a 'local or special' law within the meaning of the above constitutional provl- don. Hall v. Bell Coumy, Tex. Civ. ~pp., 138 S.W. 178, affirmed by the Supreme Court, Bell County v. Hall, 105 Tex. 558, 153 S.W. 121; Webb v. Adams, 180 Ark. 713, 23 S.W. (26) 617; g;ate ex rel. Johnson v. Chicago, B. & Q. R.
1% MO. 228, 93 S.W. 784, 113 Am. St. Rep. 66i.j 6 R.C.L. 129, 59 C.J. 736. This last pro- viso exempting counties with a population between 195,000 and 205,000 is a part of the original act, and is not an amendment. thereto. Since it is void< the whole act must be declared void. because otherwise the court would have to apply the act to all counties having a population In excess of 125.cO0, and this would be giving the act a broader scope than was intended by the Leglsla- Tiibe --- The rule applicable in such cases Is thus
zstated in Lewis' Sutherland, Statutory Construc- tion, 2d Ed. vol. 1, sec. 306, as follows: 'IS, by striking out a void exception, proVis0 or other restrictive clause, the remainder, by reason of its generality, will have a broader scope as to subject or territory, its operation is not in accord with the legislative intent, and the whole would be affected and made void by the in- validity of such part.' Substantially the same rule is announced In Ruling Case Law, vol. 6, p.
129. The above rule was So&lowed by this court in Texas-Louisiana Power Co. v. City of Farmers- ville, Tex. Civ. App., 67 s.w. (2d) 235, 238: See, also, James C. Davis Directo,r General, v. George Wallace, 257 U.S. 478, 42 3. Ct.. 164, 66 L. Ed.
325. ”
Honorable H. Pat Edwards, page 7
See also Womack v. Carson, et al, 70 9. w. (za) 416, (Comm. of Appeals); and 39 Tex. Jur., p. 22.
To allow H. B. 555 to stand and operate without the exception clause would give broader scope and meaning to tl?c bill than was the intention of the Legislature. There is no basis which would allow one to, claim that the Legisla- ture would have passed Ii. B. 555 without the exception clause. For additional authorities see casea cited in 39 Tex. Jur.; p. 22.
It is, therefore, the opinion of this department that H. B. 555, Chapter 291, Acts of the 49th Legislature, 1945, IS unconstitutional and void.
In our Opinion No. O-6776 we were requested merely to interpret certa3.n provislo~s Gf H. B. 555, supra. There- fore, we aid not pass on ao.y constitutional question in said opinion. IO view of our holding herein, we hereby withdraw our Opinion No. O-6776.
Yours very truly ATTORNEY CERERAL OF TEXA?, BY J C .D%?; . . Assistant’ . .- ‘~/Si@mif ‘, John Reeves APPRO-KXD APPROVED OCT, 19, 1945 OXNIO’L COMlVT’IEE /s/ Grover 3ellc-rs By C.WA:B., Chairman ATTORNEY CEXERAL OF TEXAS