DUCLOS et al. v. HARRIS COUNTY, 263 S.W. 562

PIERSON, J. As a statement of the case we take the following from the original opinion of the honorable Court of Civil Appeals : “In 1915 by a statute appearing as

chapter 19, Acts of the First Called Session of the Thirty-Fourth Legislature (Vernon’s Ann. Civ. St. Supp. 1918, art. 39, subds. 23, 80), the Twenty-Third judicial district of Texas' was reorganized, and the Eightieth judicial district created.

Section 5 of that act is as follows: ‘See. 5. That the clerk of' the district court of Harris county, as that office is now constituted, and his successor in office, shall be the clerk of the district court of the Eightieth judicial district of Texas in Harris county, and shall perform all the duties pertaining to the clerkship of said court, as well as the duties imposed upon him as the clerk of other district courts of Harris county, and for such additional service, shall receive twelve hundred dollars per year, as additional compensation to be collected out of the fees allowed by law.’ “The cause now at bar involves the validity of only so much of the' concluding provisions of this quoted

section as recites that the clerk. of the district court of Harris county for his services, as clerk, of the new or Eightieth district court in that county ‘shall receive twelve hundred dollars per year, as additional compensation to be collected out of the fees allowed by law.’ “Appellant was the district clerk of Harris county, and as such, for the period covered by this suit, in addition to the maximum amount allowed him under the general fee bill, had collected and retained the sum of $223.37, which he claimed the right to withhold under the quoted provision of the act creating the Eightieth district court.

At the suit of Harris county to recover this excess, the trial court gave it judgment, and the clerk and his official bondsmen appeal. “We think 'the court below did not err, and affirm the judgment.” In its opinion it says: “The portion of the quoted

section here involved, undertaking as it does to fix the amount of fees or compensation which may be retained by the district clerk of Harris county, in addition to that allowed him under the general fee bill, applies only to that particular officer and county, and is therefore a local arid special law.” It holds also that the provision complained, of constitutes a regulation of1 the affairs of Harris county within'the meaning of

article 3, § 56, of the Constitution of Texas, and for both reasons said provision is invalid as being obnoxious to said

section 5.6,

article 3, of the Constitution.

Article 3, § 56, of the Constitution, provides: “The Legislature shall not, except as otherwise, provided in this Constitution, pass any local or special law * * * regulating the affairs of counties, cities, towns,” etc. “And in all other cases where a general law 'can be made applicable, no local or special law shall be enacted.” After a thorough study of the question, we have no doubt of the correctness of the holding of the Court ,of Civil Appeals. The opinion of Hr. Justice Graves, is convincing) and we feel that it is unnecessary for us to elaborate upon it to any great extent.

For further analysis and discussion, see Duclos v. Harris County, 251 S. W. 569. We granted the writ of error because we questioned whether this provision granting additional compensation to this officer was special or local, in view of 'the fact it is a part of a law creating a district court, which is 'a general law.

An act creating a district court is¡ a general law, and as a matter of course the Legislature has the authority in the creating act to legislate as to all necessary provisions and essential elements of the court; hut that does not justify the inclusion of local dr special laws or provisions which are in themselves subject to general legislation, and which in fact are provided for and controlled by general laws. Such provisions, even though included in a general law, are nevertheless special and local.

If the Legislature had, by enactment other than 'in the bill creating the court, attempted to increase the salary of the clerk of Harris county alone, such enactment would clearly be a special and local law, and violative of

section 56,

article S. Can the fact that it is included in the provisions of a general law creating a new court in, a county in which a clerk for all district courts was already provided and his compensation fixed under a general law, the same as for all other clerks in like counties, change its nature and effect from that of a special and local law? We think not. To so hold would he to look to the form and not the spirit and purpose of the law.

The provision under consideration certainly does single out the district clerk of Harris county and provide for him a salary or compensation as district clerk different from that of any or all like district clerks in the state.

If the Legislature had, by such a measure, decreased the compensation of the district clerk of Harris county by $1,200 per annum below that of such clerks in the other like counties having a large population and a number of courts, the legal proposition would be the same — an attempt under the form of a general law to pass a special or local one which could affect only the one officer in the one county, and for which a general law was not only applicable, but had already been provided. The act creating the court was essentially a general act or law.

The provision providing for extra compensation of the clerk different from all other like clerks, as already provided for by the law in the Maximum Fee Bill,.' was essentially special and local. Under these conditions we are of the opinion that the fact that it was included within the body of the general law does not change its character, nor make it immune from the constitutional prohibition. The Legislature in its creative power ¡has the authority in the creating act to provide all essentials of the thing created, but this rule cannot change the condition that exists here.

The courts will take judicial knowledge of our form and system of courts, of their construction, and the laws relating to their officers and their operation. A clerk is an essential to a district court, and also each county is by law provided with one, and his compensation provided for in a general fee bill or law. Plaintiff in error ¿takes the argument that, even if this is a special or local law, the record does not negative the making of proper publication of notice, and therefore it is valid as a special or local law. It would not seem that this could be so.

If the sbbject is one that the Constitution inhibits from being enacted as a special or1 local law, such special or local law would be invalid with or without publication of notice. Since, as held by the Court of Civil Appeals, this provision is not an essential or necessary part of the law creating the Eightieth district court, and it is clear that the Legislature would not have declined to pass the law with this provision omitted, the validity of the rest of the act is unaffected by the invalidity of this provision.

The judgments of the Court of Civil Appeals and district court are affirmed. <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes