Bexar County v. Tynan, 2015-6749.

• Court: Texas Supreme Court
• Writing for the Court: German
• Citation: Bexar County v. Tynan, 97 S.W.2d 467, 128 Tex. 223 (Tex. 1936)
• Decision Date: 04 November 1936
• Docket Number: No. 2015-6749.,2015-6749.
• Parties: BEXAR COUNTY v. TYNAN et al.

97 S.W.2d 467

BEXAR COUNTY v. TYNAN et al.

No. 2015-6749.

Commission of Appeals of Texas, Section A.

November 4, 1936.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by the County of Bexar against Walter Tynan and others. To review a judgment of Court of Civil Appeals , affirming an order refusing an injunction, the plaintiff brings error.

Affirmed.

Russell B. Wine, of San Antonio, for plaintiff in error.

Leonard Brown, of San Antonio, for defendants in error.

GERMAN, Commissioner.

Prior to April 3, 1933, the various county and precinct officers of Bexar county, Tex., were being paid compensation from fees of office in accordance with the prevailing general laws of the state. On the date mentioned the Legislature passed House Bill 490 (Vernon's Ann.Civ.St. art. 3912b), which became effective immediately. This bill provided that in counties in which the population was as much as 290,000 and less than 310,000, according to the last preceding federal census, the precinct and county officers should retain from fees of office certain named amounts; the result being that in such counties the retained compensation was greatly reduced from what was allowed by the prior laws.

After the enactment of House Bill 490, the officers of Bexar county continued to retain fees under prior statutes and declined to be governed by the Act of April 3, 1933. This suit was brought by Bexar county against the officers and was brought for the purpose of requiring said officers to account for fees under the new act and not under previously existing laws. The case was submitted upon the following agreement:

"It is agreed that on the date of the filing of this suit that the defendants were the duly elected and qualified office holders of Bexar County, holding the respective offices as set out in said plaintiff's petition. That during the fiscal year 1933, beginning the 1st day of January, 1933, to the 31st day of December, 1933, that all of said defendants have collected certain fees of office and that they expect to make due reports of such fees on or before the 1st day of March, 1934, as required by law, and that all of said officers expect to retain from said fees a salary and compensation allowed them under the statutes in force prior to the adoption of House Bill 490, Chapter 60, passed at the Regular Session of the 43rd Legislature, and that they do not expect to comply with said law in making their reports or in deducting from their said fees and compensation to which they are entitled to, and that from their said fees of office the County of Bexar will be entitled to all excess fees over and above the compensation allowed them by law.

"It is further agreed that House Bill No. 490, passed at the regular session of the 43rd Legislature, was introduced into the Legislature by P. L. Anderson, a Representative from Bexar County, and that said Act, according to its terms, applies only to counties in which the population is as many as Two Hundred Ninety Thousand (290,000) or less than Three Hundred Ten Thousand (310,000) inhabitants, according to the last preceding Federal census, and that according to the 1930 census, which is the last preceding Federal census, the population of Bexar County was Two Hundred Ninety-two Thousand Five Hundred and Thirty-three (292,533), the population of Harris County was Three Hundred Fifty-nine Thousand Three Hundred and Twenty-six (359,326), the population of Dallas County was Three Hundred Twenty-Five Thousand Seven Hundred and Ninety-one (325,791), and the population of Tarrant County was One Hundred Ninety-seven Thousand Five Hundred and Fifty-three (197,533), and that Bexar County was the only County in the State with a population between Two Hundred Ninety Thousand (290,000) and less than Three Hundred Ten Thousand (310,000) inhabitants, according to the last preceding Federal census, and that said Act would apply only to Bexar County and no other county in the State. It is further agreed that no notice of an intention to apply for said Act was published in Bexar County, Texas, and that said Act was passed without any notice of any kind being given."

The trial court held that House Bill 490 was unconstitutional and void on the ground that it was a special or local law in contravention of article 3, §§ 56 and 57, of the Constitution. This holding was affirmed by the Court of Civil Appeals. 69 S.W.(2d) 193.

The provisions of the Constitution applicable are as follows:

"Sec. 56. The legislature shall not, except as otherwise provided in this constitution, pass any local or special law, authorizing: * * *

"Regulating the affairs of counties, cities, towns, wards or school districts; * * *

"Regulating the fees, or extending the powers and duties of aldermen, justices of the peace, magistrates or constables. * * *

"Sec. 57. No local or special law shall be passed, unless notice of the intention to apply therefor shall have been published in the locality where the matter or thing to be affected may be situated, which notice shall state the substance of the contemplated law, and shall be published at least thirty days prior to the introduction into the legislature of such bill and in the manner to be provided by law. The evidence of such notice having been published shall be exhibited in the legislature before such act shall be passed."

In the case of Altgelt v. Gutzeit, 109 Tex. 123, 201 S.W. 400, the Supreme Court held that an act fixing salaries of county commissioners was an act "regulating the affairs of counties" within the purview of the Constitution, and an attempt to do so by local or special law was void.

Without going into a detailed discussion of the Act of April 3, 1933, we will state that on its face it purports to be a general law, and we hold that because it may have applied to only one county in the state at the time of its passage, this did not alone make it a special or local law, in view of the fact that it was not so framed as to exclude the probability that it would apply to other counties in the future. The...