Case Information

*1 OFFICE OF THE ATTORNEY GENERAL OF TEXAS

AUSTIN

Mr. %a. J. Tuokar

icxeoutive seorstar~

Oame, Fleh and Oyrter Commirslon

kustin, Texar

Dear sirx of Deoembor &l, lOSO, vie have ror l-0

regarding the OOM 1939, 44th Legiela Bill No. 945, AOt8

pas0 on private hln&, and we take land6 for the purp

pleamre in anem

15,149), and not mom ed (15,300) inhabitante, Slnoe thir deral oermua.* a general law, Qrovlding problem Is to determine uheth- .a speolal or a looal law.

of Artlole III of the Conetltutlon OS a0 followci:

law, authorlzlnngl

a number of speoial eubjrctr):

*Ana in all other oatsea where a general law oee be made appliaable. no looal or epeclal law eball be enaatedlt provided. that nothing herein oontainea shall be oanetrued to prohibit the

22 iir. AI. J. Tucker, Page 2

Legislature from passing special lavis for the preservation of th game and fish of this State n oertain locali&.' (parenthesis and under- . . scoring ours)

The following rules are pertinent to the problem at hand:

*Classification of cities and counties by population, and legislation applloable to suoh classification, has generally been suetained where a substantial reason appears for suoh

alassifioation.N . . .

WIS the olasslflcatlon of oltles or ooun- ties is baaed on population, whether an act la to be regarded as special. and whether its OP- 722, 95 P. 781." Smlth v. State, 1% Tex. cr.

431, 49 9. A. (2d) 739. (underscoring ours)?

"The alassifioation adopted must rest in real or substantial distinctions, which renders -one clasq in truth, distinct or different from another olaee. . . There must exist a reasona- ble justlfloation for the claselfloatlon; that 'is. the baste of the classification invoked must have a dlrsot relation to the Purpose of the aw... " I Mcijuillen on hunioipal Corporations, K 499, 499. (uuderacoring ours)

iSe are iniormed that Orange County, Texas, had a population of 15,149, according to the 1930 federal census; and that according to such "last preceding federal censuaR it is the only county in the State falling within the olasei- of counties having not lese than 15,149 nor more rioation than 15,300 inhabitants. We believe that these population brackets do not afford a fair and reasonable basis tor olassi- f'ioation with referenoa to trespass ofi unlnolosed lands. Ii8 *3 Mr. Iyn. J. Tuoker, Page 3

do not believe that this Is a real classIfloatlon, but on the oontrary, la the designation of a single county to which alone House Bill Xo. 945 applies, and m attempt under the guise of classltlcatIon to create a tisdemanor differing from the general penal laws and one to which the residents of other aaunties 8ImIlarly situated are not made amenable.

Nor oan we bring ourselves to believe that there Is a rea- sonable jastffioatlon for this distinotion or that the basis OS olaesifioation invoked hae a dlreot relation to the man- ifeet purpose of the law. Coneequently, we hold that this is a looal or epaolal law, whloh, If valid, appllea only to Orange County, Texas. City of Fort Worth v. BobbItt, 121 Tex. 14, 36 S. W. (2d) 470, 41 9. W. (2d) 228; Beaar County v. Tynan, et al., 97 9. W. (2d) 567, Smith V. State, 120 T8x. Cr. 431, 49 S. W. (gd) 739, I MoQulllaa, pp. 498, 499.

The case of Stevenson, et al 1. Food, et al (Cow& ~pp. 1931) 34 9. W. (2d) 246, la not appliaable beoause this is not a law *ior the preeenatlon of game and iishw In this State as will be demonstrated.

Having determined that thle 18 a looal or epeoial law which appllerr by deeoriptlon only to Orange Coanty, Texas, just as effeotlvely as ii Orange County had been designated by name, our next problem is to determIne whether or not Iiouse Bill Ho. 9.45 is a law Sor the preservation of game and rlsh, within the meaning of Section 56 or Article III or the Constitution of Texas. If it la not a law for tkproserva- tfon of game and fish, Is the subjeot of the law tine about which a general law can be or has been made applioablb? House Bill Ho. 945 reads, In part, as followsr

*

Weotfon 1. In oountles having a popula- tion of not less than fifteen thousand, one

hundred and f'orty-nine (15,,149) and not more

than fifteen thousand, three hundred (15,300) Inhabitants aooordlug to the last preceding

Federal Census whoever shall enter upon the

Inolosed or unInolose4 land of another without the oonsent of the owner, proprietor, or agent In oharge thereof. and hunt with firearms or oatoh any game thereon, thereon oatoh or

take or attempt to satoh or take any fish from any pond, laki,,:tank, or etream on said land or in any manner depredate upon the same, or take or attempt to take any property there=om, *4 Mr. Wm. J. Tuoker, Page 4

shall be guilty of a IDIadepLeenor, and upon oonvlotion thereof, shall be fined any sum not leas than Ten Dollars ($10) nor more then Two Euudred Dollars (#200) and by a forfeiture of his hunting lloenae and the right to hunt in the State of Texas for a period of one year

from the date of his eonvletlon. By *lnoloaed land' la smnt aaoh lend as is In use for agi- culture or grazing parposes or ror any other purpose, and lnoloaed by any atruotare for

tenoing, either or wood or iron or combination thereof, or wood end wire. or partly by water or stream, osnyon. brx rook or rooks, bluffs, or ieland. Proof of ownership or lease z

ageno nay be made by perol teatlmony; provld- wever, that this Aot shall not apply to d inoloaed or anlnoloaed lend whioh is rented or leased for hunting or fishing or.oamplng prlvl- legea where the owner, proprietor, or agent in oharge or any person for him, by any and every aeaaa he8 reoeived or oontraoted to resolve more thaa twenty-flvo (25#) oents per aore per year or any part of a year for saoh hunting, fishing, or oamping privileges, or where mra per day per person is than Four Dollars (44)

charged for aaoh huatlag, fishing, or oemping privileges, end provided furthrr this ax- that oeptlon shall exist $or a period 0s one y*ai iron the date of the reoelpt of auoh sum or 8~ 0s -MY.

. Y3eotlon 2. Any person found apon the in-

oloaed lend ot another without the owner*8 oon- sent, shall be aubjeot to arnat~by any peaoe offloer, and auoh arrest may be made withoat warrant of arrest."

We also call your atteatlon to Artlole 1377 0s the Penal Code of this State, whloh reads:'

Whoever shell enter apon the lnoloeed land of another without the uonaent of the

owner, proprietor or agent ia oharge thereof, and therein hunt with firearms thereon

oatoh or take or attempt to catch or take any fish from any pond, lake, tank or stream, or In any manner depredate apoa the same, *5 Mr. Wm. J. Tuoker, Page 5

shall ba guilty of a misdemeanor, and upon

oonvlotion thereof, shall be fined any aam not leas than $10.00 nor sure than $200.00 and by a rorrelture of his hunting lloenae and the right to hunt In the State of Taxaa for a period of one yaar fawn tha date or hla By *lnoloaed lands’ la meant auoh oonvlotlon.

lands as are in us8 for agriculture or grating purposes or for any other purpoaa, and lnoloaed by any atruoture for fenolng either of wood or Iron or oomblnatlon thereof, or wood and wire, or partly by water or stream, oanyan, brush, rook or rooks, bluffe or island. Proof of own- ership or lease may ba Bade by par01 testimony.

Provided, hawaver, that this Act shall not

apply to lnoloaed lands whioh are rented or

leased for hunting or flahlng or camping prlv- llegea whare the owner, proprietor, agant In oharge or any person for him by any and

avary maana &a reoeivad or oontraoted to re- oalve mare than twnty-rive cants per aore par year or eny part of a year for auoh huntlng, fishing or oaraping privileges, or where aare than 94.00 per day per person is oharged for aaoh hunting, fishing or oamplng QrlVilegeS.

And provldbd $'urther that this exemption Shall exist for a period of ona year from the dat+= r of the reoeipt of auoh sum or auma of money.

Yeotion 2. day person found upon tha ln- oloaed lands of another without the owner*8

oonaent, ahall be aabbjeot to arraat by any

peaoe offloer, and auoh arrest may be made

without warrant of arrest.=

The only reapeot in whloh these two aota diifer 18 that (1) Rouse Bill go. 945 appllea to uulnoloaad as well as _ Inoloaed lands, and (2) prohIblta the taking of proparty iron inoloaad or uninoloaed lands, as well as hunting and fishing thereon, without the oonaent of the owner. (Theaa dl~terenoaa may be found underllned in Houaa Bill go. 945; in other respeetu the aota are identfoal.) Indeed. Seotfon 3, the eaargenoy olaaae of &use Bill Wo. 945, is frank e- naagh to state that;

mSeotion 3. The fast that there are now no provisions in the Penal Code of the State of *6 Mr. iym. J. Tuoker, Page 6

Texas whereby it IS unlawful for any person to enter upon the unlnoloaed land ot another without the ooneent of the owner, proprietor, or agent in oharge thereor, and hunt with firearms or oatch any game thereon, or there- on oatoh or take or atterapt to oatoh or talm any fish from say pond, oa said land or in any manner depredate upon lake, tank, or stream to take any pro- the same, or take or attempt perty from the inolosed or unlnolosed lend of another, oreatee an emergenoy and an lmpera- tire public neoeesity that the Constitutional Rule requiring bills to be read on three several daya in eaoh House be #uapended, aad the same ie hereby ewpended, and this AOt &all take effeot and be in foroe rrom and after its passage, and it is eo enaoteddw Note that it i8 not the fact that firrh and game oondltiona are such in Orange County, Texas, that relief muet be had, but that the Penal Code of Tens doer, not adequately oover the 8ituation. Moreover, the aot was not paesed ior *preaenation of gaao and finha beoaure by itm terma It doea not apply U land ia rented or laaa6d. It must have been enaoted to afd omen and lrslrora of Ann- oloeed lande.

Looking to the legislatire history ofy&iole 1577 of the Penal Code, it was tiret enacted in I.885 (Lnm 1886, page 80), and the aot did not apply unless the land wat posted by the owner, nor did it apply to lnoloeuror having 2,000 aorea or a0re. Aa amended in 1899 (Lana 1893, page 87), It wee provided that no prosecution ahoald take plaoe exoept at the instanoe or upon the written request of the owner or omers of the land or their agents. The aot was again amended in 1003 and was lletod in the General laws of that year (Laws 1909, pago MO), a9 an offense a- galnet property - prohibiting haunting within the InOlOBUr8 of another.

Once again the act was amended fn 1929 (AOtS 1~29, Bofdp-riret Legislature, Plr8t Called Sosslon, Chap- ter 100, pqe 242). and the emergenay olauae of euoh en- aotment oaats some ll*t upon its pUrpoas. We quoter

*The faot that there ia now a0 law pro- viding ror an adeqmts, proteotion of the *7 UI?. Wm. J. Tuoker, Page 7

omera of farm and ranohes on the one hand, and the huntera on the other, the first from

unjust depredations by unscrupulous bunters, and the second from unfair and exorbitant

rental charges, oreates an emergency and in- perative pub110 neoeseity . . .*

The problem Is essentially the same as stated pM%nnnf vs. crow, et al ( Comm. App., lOSS), 78 S. 3.

"The statute ln question applies to Hill County only, and ia, therefore, a loaal or

speolal law. Zf the parpose of the above act uaa to regulate the affair8 of the count

other than the maintenanos of roads, it a 1'

uuoon8tltutloMl. On the other hand, ii its sole purpose was the ~mlntenanoe 0r the pub- 110 roads* its enactment was within the power of the Legislature.*

In Austin BrOS. vs. Patton, et al (Consi~ App., 1086) ZSS S. Y. lee, a speoial road law was hold to be In vfolatlon or Seotion Sd or ~rtlols III or the Constitu- tion, and net within the exoeption set forth in Seotion 99 ot Article VIII, beoaase it subtraoted from powers oon- ierred on the Comatiesionors~ Court by general lau,pohaaged the eouuty financial system as fixed by general law, an4 created new eftioes and duties provided for by exlst5.ng general laws. Xt was held that none or such things were ninoidsntal or neoeasary to the malntonanoe, laying out, epsnlhg and oonstruotion of road8”.

Xu Kltohens, ot al vs. Roberts, County Treasurer

(C.&A., lQSO), 24 8. Y. (&l) 464, writ refused, a speolal. road law wae held to be Invalid as an attempt by speolal or looal law to regulate tho affairs of the county, because the law fixed the oolqpansatlen of the county oommisaioners for servioes in ocmneetlon with roads and thus was 8r1 at- tempt to *alter the general laws."

Consequently. we are oonstralned to hold, and It is the opinion of this department, that House Bill No. 946 is not a law ror the presorvatlon of game an& fieh, but, on the contrary, is an aot for the proteotiom of property owner8 ot Orange County, Texas, a speo,ial leaal law regulatW a subjeot about which a general law oan be, and haa been made *8 Mr. Wm. J. Tuokar, Page 2

applicable. Therefore, it stands In the teeth of and oon- demned by Beotfon 56 of Artiole II1 of the Conatltutlon or Texas. Altgelt ve. Gutzeit, 109 Tex. 123, 201 S. W. 400; CosPlissloners~ Court 0r Limestone County, et al TO. Garrett, et al. (Conm. App., 1922) 236 9. W. 970; Anderson, et al TO.

Routs, County Judge, et al. (C.C.A., 1922), 240 3. W. 647; Austin Rros. ~8. Patton, et al. (60s~. App., 1926) 28S S. W.

182; Kltohens, et al. TO. Roberts, Oouutp Treasurer, (C.C.A., 1930) 24 8. 1. (2d) 464, writ refused.

We are also of the opinion that Rouse Bill No. 945 is repnguant to seotfon 19 Of Artiole I of the CoMtltutlon of TWO, and Seotion I Of Art1010 XI7 of the Foderal Con- stitution, whloh provide:

Vo oitlsen of this state shall be deprived or llfo, liberty, property, privileges or %mmunl- ties, or in any manner distranohiaed, exoept by the due oourse of the law of the land.* Seotion 19 of Article 1, ConHiltutlon of Texas.

No state shall sake or euforoo any law w>oi hall abridge the prlvlleges or immml- ties of oltitens of the United States; nor shall eny state deprive any person of lite,.liberty or property, without due prooess of law; nor deuy to any psrsen wlthln its ju.rlsdlotlon the equal proteotion or the laws.*

In Rx parte Slaemore, 110 Tox. Cr. Rep. 232, 0 S. W. (2d) 134, 196, 89 A. L. R. 4s0, a speofal road law had bees enaoted for Sulth County, Texas, allowing oonvlots only tlity cents per day for laboring on the publio reads. The general law provided that oonvlots In mlsdenteanor oases should be al- lowed Three ($3.00) Dollars credit per day on fine costs. The court held that this previeion of the special road law was to tho Fourteenth &men&tent to the Constitution of repugnant the United States and Saotlon 19 of Artiole I of the Teras Bill of Rights In that It denied due prooeae and equal proteo- tion of the laws by requirln& a acnviat iu one oounty to serve . a different term than one oonvioted of the sass offense in a slmllarly situated oounty.

A like oase deolded on ldentloal grounds 1s Rx part8 Berguxmn, 132 S. W. (Zd) 408, deoided Ootober 25, 1939, by the Court of CH.miual Appeals. In that oase the oourt said: *9 i&r. Wm. 3. Tuoker, Page 9

Woreover, the olaasiflcation seeus to be based merely on the numbers of people in the varioue oountlea, not as to age, sex* or physi’ oal iniirmatiee, or in any other mauner whioh would appear to be a Just or reasonable basis for olaaslrloat~on. Vie are not unmindful 0r

the power and authority of the Legislature to olaaslfJ according to population. but auoh oiassi- Ii oa on mua

some dlfferenoe whioh bears a lust and proper relation to the attempted olasslfloatlon aud not a mere arbitrary seleotlon. m ghb th Constitution, Vol. S 980. 185 ($0 &Eon):

This being true, we ?a11 to see a rsasonable basis for the olasslfioatlon in the lustant oase . Just why the people in Lamar County and the peoples of other ooustles falllog wltm

the prescribed population braokets should be aooorded different treatment to the peoples of other oountier of thla State is apparent neither from the Act nor from the reoord before us;e (underscoring ours)

Likewise, we fall to see a reasonable basis for naking trespass on uslnelosod lands in Orasge Couaty, Texas, a misdwwr when the ldentloal aots in neighboring oounties or oountiea r~imilarly sltwted im not made so and rer these reasons aad under the authorities set forth above- must hold that Eouse Bill Ro. 945, Is unconstitutional and void.

Very truly yours r ATTORNNY GEMERAL OF TEXJB