Hall v. Bell County

• Decision Date: 19 April 1911
• Citation: 138 S.W. 178
• Parties: HALL v. BELL COUNTY et al.
• Court: Texas Court of Appeals

Page 178

138 S.W. 178

HALL v. BELL COUNTY et al.

Court of Civil Appeals of Texas. Austin.

April 19, 1911.

Rehearing Denied May 31, 1911.

Appeal from District Court, Bell County; John D. Robinson, Judge.

Petition by W. E. Hall against Bell County and others to compel payment of plaintiff's salary as county auditor. From an order sustaining a general demurrer to the petition, plaintiff appeals. Reversed and remanded.

W. S. Banks, for appellant. A. L. Curtis, for appellees.

KEY, C. J.

The Twenty-Ninth Legislature passed a law (Laws 1905, c. 161), which was amended by the Thirtieth Legislature (Laws 1907, c. 168), and which, as amended, created the office of county auditor in all counties of this state having a population of 40,000 inhabitants, or containing a city with 25,000 inhabitants. Bell county having the requisite population, W. E. Hall was appointed auditor for that county. Thereafter, on April 1, 1909, the Thirty-First Legislature passed a law (Laws 1909, c. 120) exempting Bell county by name from the provisions of the former law under which Hall had been appointed county auditor; and in December, 1909, he brought this suit against Bell county, its county judge, and the several members of its commissioners' court, seeking to compel them to pay his salary and permit him to discharge the duties of county auditor. The trial court sustained a general demurrer to his petition, and the plaintiff has appealed.

The only question for decision is the constitutionality of the act of the Thirty-First Legislature exempting Bell county from the former law creating the office of county auditor. In a well-prepared and helpful brief it is contended on behalf of appellant that the act assailed is unconstitutional because it is a special law enacted without publication of notice, as required by the Constitution, and regulating the affairs of a county, which the Constitution declares shall not be done by local or special law. It is also contended that the same result could have been accomplished by the enactment of a general law; and that, for that reason, the statute in question is unconstitutional.

Section 56 of article 3 of our state Constitution specifies a large number of subjects upon which it is declared that the Legislature shall not, except as otherwise provided in the Constitution, pass any local or special law, and one of the specifications referred is as follows: "Regulating the affairs of counties, cities, towns, ward or school districts." And it is also provided in the same section that no local or special law shall be passed where a general law can be made applicable. There is also a proviso declaring that the Legislature is not prohibited from passing special laws for the preservation of the game and fish of this state in certain localities. Section 57 declares that no special laws shall be passed unless notice of the intention to apply therefor shall have been published in the manner therein prescribed. Whether or not the latter provision and the one prohibiting the passage of a local or special law where a general law can be made applicable are mandatory, in the sense that the courts may declare a statute unconstitutional and invalid on account of those provisions, is a question upon which there is conflict of authority. In Beyman v. Black, 47 Tex. 558, our Supreme Court said: "Even if the law could be regarded as a local or special act, its passage would be taken as a judgment of the Legislature that the case was not one which could be provided for by a general law, and their decision is conclusive of the question." But counsel for appellant has pointed out in his brief that that case arose under the Constitution of 1869, as amended in 1873, which read: "The Legislature shall pass general laws providing for the cases before enumerated in this section, and for all other cases which in its judgment may be provided by general law."

So, in the case then before the court, it would seem that the constitutional provision then in force remitted the entire matter to the judgment of the Legislature. However, in the case at bar it is not deemed necessary to determine that point, nor the one relating to notice of intention to apply for the enactment of the statute, for the reason that we sustain appellant's contention that the act of 1909, exempting Bell county from the operation of the former statute, is a local or special law regulating the affairs of a county, and therefore prohibited by section 56 of article 3 of the Constitution. In reaching that conclusion we have kept in mind the well-settled rule that, within the domain of state affairs, state Legislatures possess plenary powers, except where restricted by the federal or state Constitution; and that, in determining the validity of state legislation, it is not necessary to search for a constitutional provision which authorizes the particular legislation, but rather for one which prohibits it; and, unless it appears with reasonable certainty that such legislation is violative of some constitutional provision, it should not be declared invalid. Nor have we overlooked the rule which declares that, if reasonable doubt exists as to the constitutionality of a statute, such doubt will be resolved in favor of its validity. But, notwithstanding these wholesome rules, this court feels compelled to hold that the statute in question contravenes and violates the constitutional provision referred to.

It is conceded that much conflict of authority exists upon the question of what constitutes a local or special law, and, after a satisfactory rule has been adopted, cases may arise in which it may be difficult to determine whether the particular law is a local or special law or a general law. Well-prepared synopses of the leading cases upon the subject can be found in that valuable contribution to legal literature, known as "Words & Phrases Judicially Defined," vol. 5, p. 4208, and vol. 7, p. 6577. A leading case therein cited is Clark v. Finley, 93 Tex. 171, 54 S. W. 343, where our own Supreme Court, in an able opinion by Chief Justice Gaines, dealt with the question of what constitutes general and special legislation. In its most important provisions, by its own terms, the act then under consideration did not apply to counties in which the vote at the last election for president was less than 3,000, and for that reason it was vigorously assailed upon the theory that it was a local or special law. The Supreme Court sustained the validity of the law, and in the course of its opinion used the following language, which is more or less applicable to this case:

"A law is not special because it does not apply to all persons or things alike. Indeed, most of our laws apply to some one or more classes of persons or of things and exclude all others. Such are laws as to the rights of infants, married women, corporations, carriers, etc. Indeed, it is perhaps the exception when a statute is found which applies to every person or thing alike. Hence it cannot be that the statute under consideration is special merely because it is made to operate in some counties of the state and not in others. The definition of a general law, as distinguished from a special law, given by the Supreme Court of Pennsylvania in the case of Wheeler v. Philadelphia, 77 Pa. 338, and approved by the Supreme Court of Missouri, is perhaps as accurate as any that has been given. State v. Tolle, 71 Mo. 645. The court in the former case say: `Without entering at large upon the discussion of what is here meant by a "local or special law," it is sufficient to say that a statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special, and comes within the constitutional prohibition.' The law in question is applicable to every county of the designated class. Now we do not propose to be led off into an extended discussion as to what is a proper class for the application of a general law. The tendency of the recent decisions upon the subject, as it seems to us, is to drift into refinements that are rather more specious than profitable. It is said in some of the cases that the classification must be reasonable, in others that it must not be unreasonable or arbitrary, etc. If it is meant by that that the Legislature cannot evade the prohibition of the Constitution as to special laws by making a law applicable to a pretended class which is, in fact, no class, we concur in the proposition. Such was the law passed upon in the case of Commonwealth v. Patton, 88 Pa. 258. That statute was made applicable to all counties in which there was a population of more than 60,000 and an incorporated city with a population exceeding 8,000 `situate at a distance from the county seat of more than 27 miles by the usually traveled public road.' There was but one city in the state which came within the pretended class. The court held this was a covert attempt at special legislation, and that the act was a nullity. It seems that in Pennsylvania there has been a studied and constant effort by the Legislature to evade the constitutional requirement of that state as to local and special legislation, and that the Supreme Court of that state has found it necessary to repress it with a strong hand. In so far as the courts which undertake to define the basis upon which the classification must rest hold that the Legislature cannot, by a pretended classification, evade a constitutional restriction, we fully concur with them. But if they hold that a classification which does not manifest a purpose to evade the Constitution is not sufficient to support a statute as a general law, merely because in the court's opinion the classification is unreasonable, we are not prepared to concur. To what class or classes of persons or things a statute should apply is, as a general rule, a legislative question. When the intent of the Legislature is clear, the policy...