Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

GERALD C. MANN ATTORNEY GENERAL

HONORBIS BENEST OUIAN COURTY ATTOPOWY E1 PABO COURTY E1 PABO, TEXAS

DEAF SIX:

OPINION No. 0-3348 RE: VALIDITY OF E. B. 364, 47th LEGISLATURE, ATS 1941, AND YEATS

YOU letY E OF JULY 8th, IN YHISH YOU FEQUET the OPINION OF this DEPARTMENT AS to the VALIDITY OF HOUSE BILL No. 364, FORTY-SEVENYTH LEGISLATURE, AMENOING AYticle 2700, REVISED CIVIL STATES OF TEXAS, UPON FEQUET OF YOU COURTY SCHOOL SUPPORTENT, BUS FECEIVED THE STECTION OF THE DEPARTMENT. SECTION 1 OF THE BILL TO YHISH OUT AT TROUTS IS dYNAN IN YOUST IETTER, FEACLE AS FOLLOW:

"SECTION 1, SALITY OF THE COURTY SUPPORT. "THE GESTIVE COURTY SUPPORTENTE SHELL FECEIVE FROM THE AVAILABLE SCHOOL FUND OF THEIR RESPATIVE SOURTIES ANAHEL SALIATES BASED ON THE SCHOOLS OF POYLATION OF THE SCHOLATES

POYLATION

3,000 or less 5,001 to 4,000 4,001 to 5,000 5,001 to 6,000 6,001 to 7,000 7,001 to 8,000 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 50,001 and over

ABSURT

11,800.00 2,000.00 2,200.00 2,400.00 2,600.00 2,800.00 3,000.00 3,200.00 3,400.00 3,600.00 3,800.00 4,200.00 4,800.00

*2 Homorable Ernest Quin, Page 2 "Provided, however, in counties having more than thirty-five hundred ( 8800 ) seholesties and less then eight thousand and one ( 8,001 ) seholasties, where no supervisor is employed and where the total expense for office assistants does not exceed zighteen Hundred Dollars ( $\$1800$ ) per annum, the salary of the County Superintendent may be set at a sum not to exceed Three Thousand Dollars ( $\$3,000$ ) per annum by action of the County Board of Trustees. "In making the annual budget for County Administration expenses the County School Trus= tees 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 seholastie 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 soholastic year, the budget to be approved and certified to by the President of the County Board of Education and attested to by the County Superintendent. 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 assistant 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 exceed twelve Hundred Dollars ( $\$1200$ ) annually; and the County Board of Education may make further provisions as it deers necessary for office and traveling expenses of the County Superintendent; provided that expenditures for office and traveling expenses of the

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Honorable Ernest Guinn, Page 8

County Superintendent shall not be less than Three Hundred Dollars ( $\$500$ ) and not more than Right Hundred Dollars ( $\$800$ ) per annum, such exs pence shall first be-proven by affidavit therefor, and said Board is hereby authorized to fix the salary of such assistants and pay sene out of the same funds from which the salary and expences of the County Superintendent are paid."

Since it is well settled in this State that the legislature, in the exercise of its porer to provide compensation of public officers and employees, may adjust the salary to be paid in proportion to the population of the area which the officer serves, upon the theory that it is reasonable to presume that the officer's duties are rendered more of less onerous in proportion to the population, the not in its broad aspect appears to be clearly conatitutional. The only question of constitutionality which occurs to us is with respect to the validity of the proviso, as against the oontention that it is a local or special law regulating the affairs of counties.

It is to be observed that the classification made by the proviso in question is threefold; one, sohalastic population; two, employment of supervisors; three, salary paid assistants. Each of the conditions must conour in order that the proviso may apply. If one offeots an arbitrary disorimination, the entire proviso must fall.

Within the thirty-five hundred ( 3500 ) to eight thousand ( 8000 ) soholaetios bracket, the county superintendent of the county having six thousand five hundred ( 8500 ) soholastios can be paid only Twenty-six Hundred Dollars ( $\$2600$ ) per annum, if he has a supervisor, or if he spende more than Eighteen Hundred Dollars ( 1800 ) per annum for assistants. On the other hand, a superintendent of the three thousand five hundred fifty ( 3580 ) soholastios ountry, if he has no supervisor and spends less than Eighteen Hundred Dollars ( 1800 ) per annum for assistants, may be paid Three Thousand Dollars ( $\$3000$ ) per annum; otherwise his salary is fixed at Two Thousand Dollars ( $\$2000$ ) per annum. In other words, of two counties within the population brackets fixed by the proviso, it may develop that the superintendent of a ounty of three thousand five hundred fifty (3580) soholastios

*4 Honorable Ernest Guian, Page 4 will receive three thousand Dollars ( $\$5000$ ) per annum, beo cause the proviso applies to him, but a superintendent of a county having six thousand five hundred ( 5800 ) seholasties will be paid only twenty-six Hundred Dollars ( $\$8600$ ) per annum beoause his county does not fall within the olaselfieation, other then that of soholastie population, set by the proviso.

The first question, therefore, is whether the basis chosen by the Legislature affords a reasonable ground for this discrimination as between counties within the population brackets fixed by the proviso. Differently stated, does the fact that the county has no supervisor and pays less than Eighteen Hundred Dollars ( 11800 ) per annue for assistants indicate fairly and reasonably that the county superintendent should be paid a larger salary than may be paid a superintendent of a county of like or greater soholastie population which either has a supervisor or pays more than Eighteen Hundred Dollars ( $\$1800$ ) per annum for assistants. To cannot say that this disor imination is unreasonable and arbitrary. A reason, suggesting itself to support the classification is this: the failure to have a supervisor, plus employment of assistants at aggregate salaries of less than Eighteen Hundred Dollars ( 11800 ) per annum, may be taken as a reasonable indication that the county superintendent under such circumstances is required to perform zoro work than would be the case if his burdens were lightened by a supervisor and higher salaried, and therefore presumably more competent, assistants - the authorized additional salary, up to the maximum of three thousand Dollars ( 35000 ), represents compensation for such additional services, the extent of which, presumably, is to be taken into consideration by the board in fixing the amount of the salary increase to be allowed the county superintendent.

The next question which arises is whether there is an unreasonable disorimination involved in the failure of the Legislature to provide for sirilar salary increases under similar olrousetances for oounty superintendenta of counties of greater or lesser sohalastic population than those erbrood in the brackets of the proviso.

The fact that the proviso applies only to counties having soholastie population of not less than three thousand

*5 Honoryile Ernest Guing Page 8 five hundred ( 8500 ) nor more than ofght thousand ( 8000 ) doet not, in our opinion, conatitute the proviso an unreasonable diserimination against the counties above and belon the brackets. It is to be noted that superintendents in the brackets of the proviso cannet, even under the provisions of the proviso, be paid less than those in counties below the bracket, nor more than those in counties above.

It must be borne in mind that the Legislature has a wide diarestion in deternining the amount of compensation to be paid public officers and employees. In the instant situation, the salary to be paid superintendents of the counties within the brackets of the proviso will not, in any event, be less than that paid superintendents of counties of lesser population, nor more than that provided for counties of greater population. That being true, we think it imaterial that the Legislature, in the proviso, allowed the raising of such salaries under the circumstances indicated. If the aalaries of superintendents in counties of from thirty-five hundred ( 3500 ) to eight thousand ( 8000 ) soholastios might be set by the Leghalature at a flat Three Thousand Dollars ( 58000 ) per annum ( and the power of the Legislature to do this cannot be disputed), we think that where the Leghalature fixes the minimum salary in such brackets at an acount higher than that paid superintendents of counties of less population and lower than that provided for superintendents in counties of greater population, and allows an increase of salaries within such brackets to an amount not greater than the salary provided for counties of larger population, upon conditions such as those here provided, there is no arbitrary or unreasonable diserimination involved in the legislative failure to provide similar increases upon similar conditions for superintendents of counties of lesser or greater soholastic population.

It follows from what we have said above that we hold section 1 of House will No. 364 to be conatitutional.

Your second question is whether, under the provisions of the not, the first assistant to the county superintendent may be paid an annual salary in excess of two thousand Dollars ( 58000 ) and whether a second assistant may

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Nonorable Ernest Guing, Page 6

be paid in exeege of an annual salary of Twelve Hundred Dollars ( $\$1200$ ).

He eonour with your opinion that Houge Bill No. 364 pleces an absolute limitation upon the amount that may be paid for salaries of aselatants. The Aot plainly provides that one aselatant to the ountry auperintendent may be paid an annual salary not to exeeed Two Thousand Dollars ( $\$2000$ ). The Ast also plainly provides that such other aselatants as geoegeary may be employed, but that the aggregate amount of the salaries of wioh other aselatants shall not exceed the total sum of Twelve Hundred Dollars ( $\$1200$ ) annually. It follows that the first aselatant may be paid not to exceed Two Thousand Dollars ( $\$2000$ ) per annum as salary, and that not more than Twelve Hundred Dollars ( $\$1200$ ) in the aggregate may be expended for the annual salaries for such additional aselatants as may be required and authorized.

By your aupplenentery letter of August 15, 1941, you ask the additional question, which we construe as follows: where the aselatants to the oounty auperintendent are required to work overtine in the office, and to return to the office on many occasions, thereby occasioning said aselatants increased ocet in transportation, may they be reimbursed for such increased transportation costs out of the Eight Hundred Dollars ( $\$800$ ) provided in Houge Bill No. 364 for traveling expensee:

It seers that what it is desired to do here is to reimburse the aselatants for the expenses which they inour in coming from their hores to the office to do overtine work, and returning to their homes thereafter. If we are correct in this understanding, you are advised that such transportation expenses as may be incurred by the aselatants in coming from their places of residence to the office to do their work is not a proper iten of "traveling expenses", and the aselatants cannot be reimbursed therefor from the traveling expense money provided by iouse Bill No. 364.

Yours very truly ATN:NEY GLIEHU: V T. XH: By