Untitled Texas Attorney General Opinion ( 1940 )

OFFICE OF THE ATTORNEY GENERAL OF TEXAS
AUSTIN
Mr. %a. J. Tuokar
icxeoutiveseorstar~
Oame, Fleh and Oyrter Commirslon
kustin, Texar
Dear sirx
vie have ror l-0 of Deoembor &l, lOSO,
regarding the OOM Bill No. 945, AOt8
1939, 44th Legiela pas0 on private
land6 for the purp hln&, and we take
pleamre in anem
15,149), and not mom
ed (15,300) inhabitante,
deral oermua.* Slnoe thir
a general law, Qrovlding
problem Is to determine uheth-
.a speolal or a looal law.
of Artlole III of the ConetltutlonOS
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 enaatedltprovided. that nothing herein
oontainea shall be oanetrued to prohibit the
22
iir. AI. J. Tucker, Page 2
Legislaturefrom passing special lavisfor the
preservationof th game and fish of this State
n oertain locali&.' (parenthesisand under-
scoring ours) ..
The following rules are pertinent to the problem
at hand:
*Classificationof cities and counties by
population,and legislationapplloableto suoh
classification,has generally been suetained
where a substantialreason appears for suoh
alassifioation.N . . .
WIS the olasslflcatlonof 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. (underscoringours)?
"The alassifioationadopted must rest in
real or substantialdistinctions,which renders
-oneclasq in truth, distinct or differentfrom
another olaee. . . There must exist a reasona-
ble justlfloationfor the claselfloatlon;that
'is.the baste of the classificationinvoked must
have a dlrsot relation to the Purpose of the
aw..." I Mcijuillenon hunioipal Corporations,
K 499, 499. (uuderacoringours)
iSeare iniormed that Orange County, Texas, had a
populationof 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-
rioation of counties having not lese than 15,149 nor more
than 15,300 inhabitants. We believe that these population
brackets do not afford a fair and reasonable basis tor olassi-
f'ioationwith referenoa to trespass ofiunlnolosedlands. Ii8
Mr. Iyn.J. Tuoker, Page 3
do not believe that this Is a real classIfloatlon,but on
the oontrary, la the designationof a single county to which
alone House Bill Xo. 945 applies, and m attempt under the
guise of classltlcatIonto 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 jastffioatlonfor this distinotionor that the basis
OS olaesifioationinvoked 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 appllerrby deeoriptlononly to Orange Coanty, Texas,
just as effeotlvelyas ii Orange County had been designated
by name, our next problem is to determIne whether or not
IiouseBill Ho. 9.45is a law Sor the preservationof game and
rlsh, within the meaning of Section 56 or Article III or the
Constitutionof Texas. If it la not a law for tkproserva-
tfon of game and fish, Is the subjeot of the law tineabout
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)
Inhabitantsaooordlug 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, or 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,
Mr. Wm. J. Tuoker, Page 4
shall be guilty of a IDIadepLeenor, and upon
oonvlotionthereof, shall be fined any sum not
leas than Ten Dollars ($10) nor more then Two
Euudred Dollars (#200) and by a forfeitureof
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-
d wever, that this Aot shall not apply to
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
than Four Dollars (44) per day per person is
charged for aaoh huatlag, fishing, or oemping
privileges,end provided furthrr that this ax-
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 or 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,
Mr. Wm. J. Tuoker, Page 5
shall ba guilty of a misdemeanor,and upon
oonvlotionthereof, shall be fined any aam
not leas than $10.00 nor sure than $200.00
and by a rorreltureof his hunting lloenae
and the right to hunt In the State of Taxaa
for a period of one yaar fawn tha date or hla
oonvlotlon. By *lnoloaedlands’ la meant auoh
lands as are in us8 for agricultureor grating
purposes or for any other purpoaa, and lnoloaed
by any atruoturefor fenolng either of wood or
Iron or oomblnatlonthereof, 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,or 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 oarapingprivileges,or where aare
than 94.00 per day per person is oharged for
aaoh hunting, fishing or oamplng QrlVilegeS.
And provldbd $'urtherthat 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 aabbjeotto 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 uulnoloaadas well as
Inoloaed lands, and (2) prohIblta the taking of proparty
iron inoloaad or uninoloaedlands, as well as hunting and
fishing thereon,without the oonaent of the owner. (Theaa
dl~terenoaamay be found underllned in Houaa Bill go. 945;
in other respeetu the aota are identfoal.) Indeed. Seotfon
3, the eaargenoyolaaae of &use Bill Wo. 945, is frank e-
naagh to state that;
mSeotion 3. The fast that there are now no
provisionsin the Penal Code of the State of
Mr. iym.J. Tuoker, Page 6
Texas whereby it IS unlawful for any person
to enter upon the unlnoloaedland 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 atteraptto oatoh or talm
any fish from say pond, lake, tank, or stream
oa said land or in any manner depredate upon
the same, or take or attempt to take any pro-
perty from the inolosed or unlnolosedlend 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 firrhand game
oondltionaare such in Orange County, Texas, that relief
muet be had, but that the Penal Code of Tens doer,not
adequatelyoover 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 lrslroraof Ann-
oloeed lande.
Looking to the legislatirehistory 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 instanoeor 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 - prohibitinghauntingwithin the InOlOBUr8
of another.
Once again the act was amended fn 1929 (AOtS
1~29, Bofdp-riretLegislature,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
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 depredationsby unscrupulousbunters,
and the second from unfair and exorbitant
rental charges, oreates an emergency and in-
perative pub110 neoeseity . . .*
The problem Is essentiallythe 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 1'
a
uuoon8tltutloMl. On the other hand, ii its
sole purpose was the ~mlntenanoe 0r the pub-
110 roads* its enactmentwas 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 subtraotedfrom 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
ninoidsntalor neoeasary to the malntonanoe, laying out,
epsnlhg and oonstruotionof 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 oolqpansatlenof the county oommisaioners
for servioes in ocmneetlonwith roads and thus was 8r1at-
tempt to *alter the general laws."
Consequently.we are oonstralnedto hold, and It
is the opinion of this department,that House Bill No. 946
is not a law ror the presorvatlonof game an& fieh, but, on
the contrary, is an aot for the proteotiomof property owner8
ot Orange County, Texas, a speo,ialor leaal law regulatW
a subjeot about which a general law oan be, and haa been made
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 Conatltutlonor
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, privilegesor %mmunl-
ties, or in any manner distranohiaed,exoept by
the due oourse of the law of the land.* Seotion
19 of Article 1, ConHiltutlonof 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,.libertyor
property, without due prooess of law; nor deuy
to any psrsen wlthln its ju.rlsdlotlonthe equal
proteotionor 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
repugnant to tho Fourteenth &men&tent to the Constitutionof
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
slmllarlysituated 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:
i&r. Wm. 3. Tuoker, Page 9
Woreover, the olaasiflcationseeus 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. Vieare not unmindful 0r
the power and authority of the Legislatureto
olaaslfJ according to population.but auoh oiassi-
Iioa on mua
some dlfferenoewhioh bears a lust and proper
relation to the attempted olasslfloatlonaud 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 olasslfioatlonin the lustant
oase. Just why the people in Lamar County and
the peoples of other ooustles falllog wltm
the prescribed populationbraokets 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 (underscoringours)
Likewise, we fall to see a reasonable basis for
naking trespass on uslnelosodlands in Orasge Couaty, Texas,
a misdwwr when the ldentloal aots in neighboringoounties
or oountiea r~imilarlysltwted im not made so and rer these
reasons aad under the authorities set forth above- must
hold that Eouse Bill Ro. 945, Is unconstitutionaland void.
Very truly yours
r ATTORNNY GEMERAL OF TEXJB