Untitled Texas Attorney General Opinion

Honorable Bob Strickland Opinion No. hW-78 House of Repreaentatlves Capitol Station Re: Const! ‘utionalitg of House Austin, Texas Bill 432 of the 55th Legls- la ture, Regular Sess Ion, Dear Sir: 1957 * You have requested an opinion on the constitutionality .of House Bill 432 of the 55th Legislature, Regular Session, 1957,as amended by the Committee Amendments Nos. 1 and 2. House Bill 432, as amended, reads as follows:

“A BILL

“TO be entitled

“AN ACT to make fully operative and available for and within the State of Texas the Federal- Aid Highway Act of 1956 by amending Title 116, Chapter 1, Revised Civil Statutes of Texas, 1925, by adding thereto a new Article and so as to provide for reimbursement to utilities, publicly, privately and cooperatively owned, of the cost of relocation necessitated by any federal-aid project; and declaring an emergency.

“Section 1. That Title 116, Chapter 1 of the Revised Civil Statutes of Texas, 1925, be amended by adding thereto the following Article, said Article to read as follows: ‘1. Whenever the relocation of any utility facility is necessitated by the improvement of any highway in this State which has been or may hereafter be established by appropriate authority according to law as a part of the Federal-Aid Primary or Secondary System or the Natlonal System of interstate and defense highways , including extensions thereof within urban areas, such relocation shall be made ,by the utility at the cost and expense of the State of Texas and relm- bursement of the cost of relocation of such facility shall be made from the State Highway Fund to the utility owning such facilities, anything contained in

Honorable Bob Strickland, page 2 (w-78)

any other provision of law or in any permit, or agreement or franchise issued or entered into by any department, commission or political subdiv- ision of the State to the contrary notwithstanding,’

‘Section 2. For the purposes of this Article, the term ‘utility’ shall include publicly, privately, and cooperatively owned,utllities engaged In furnish- ing heating, water, gas, electric, telephone, tele- graph, communication, railroad, sewerage or pipeline service ; and the cost of relocation shall Include the entire amount paid by such utility properly attributable to such relocation after deducting therefrom any Increase in the value of the new facility and any salvage derived from the oid facility.

“Section 3. . . . .”

Section 17 of Article I of the Constitution of Texas provides :

“Section 17. No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for the use of the State, such compensation shall be first made, or secured by a deposit of money; and no irrevocable or uncontrollable grant of special privileges or immunities, shall be made; but all privileges and franchises granted by the Legislature, or created unde; its authority shall be~subject to the control thereof.

Insofar as the provisions of House Bill 432 allow the State to pay the cost of taking private property for public use, the payment would be in compliance with the provisions of Section 17 of Article I of the Constitution of Texas. It Is noted, how- ever, that the provfsions of House Bill 432 are not limited to the payment of acquired property rights. It falls to distin- guish the condition under which the utiiitg Involved is occupying the space from which the relocation becomes necessary.

Sectfon 51 of Article III of the Constitution of Texas provides :

“The legislature shall have no power to make any grant or authorize the making of any grant of public * moneys to any Individual, association of individualsk municipality or other corporations whatsoever; . . .

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The Court, in Road District No. 4, Shelby County v.Allred, Attorney General, 123 Tex. 77 68 S W 2d lb4 (1934) fter setting out Section 51 of Article III’of thd Constitution, h:ld:

.It is the settled law of this state that II . . the above -quoted cons titutlonal provis Ion is intended to guard against and prohibit the granting or giving away of public money except for strictly governmental purposes. The prohibition Is an absolute one, except as to the class exempted therefrom, and operates to prohibit the Legislature from making gratuitous dona- tions to all kinds of corporaklons, private or public, municipal or political. . . .

In City of Mission v. Popplewell, Tex o ,294 S.W.2d 712 (1956), It was stated:

“The city controls the streets as trustee for the public. It has no proprietary title nor right to exclusive possession. Its right of control is restricted by its trusteeship. It has the duty to maintain the streets and keep them open and free of obstruction. It can close a street only in the public interest and even then not over the objection of an abutting property owner with a co-existing private easement therein. Kahn v. City of Houston, Tex. Corn. APP., 121 Tex. 293, 48 S.W.2d 595; Dallas Cotton Mills v. Industrial Co., Tex. Corn. App., 296 S.W. 503; 39 Tex. Jur., 603-605. “Thus the interest which a city has in its streets and alleys is unique and legally sui generis. It has no proprietary title but exercises many of the rights of title on behalf of the public, It is less than the private easement in that the city cannot recover damages for the obstruction of a street. It Is more than a private easemznt in that the control of the street is greater. . . .

A F;ity’s ownership and operation o$, some publiE utilities Is no’t a governmental function but Is proprietary in its nature and constitutes the “busl;ess or corporate function” of the city in question. osbyton v. Texas -New Mexico Utilities Company_, 157 (Tex. Clv. App. 1942 , error ref . w.0.m.).

House Bill 432 is constitutional Insofar as it authorizes payment of the cost of relocation of utility facilities In those instances where prior property or contract rights exist, or where

Honorable Bob Strickland, page 4, (W-W-78)

the city Is something other than a mere permissive occupa+ In the pro rletary capacity; City of Beaumont v. Prlddle, 65 S.W. 26 434 T)Tex. Clv.App., 1933 reversed and caused to be dismissed without prejudice since the case had become moot In T & N 0 Railroad Company v. Prlddle, 95 S.W.2d 1290).

House Bill 432 Is unconstitutional Insofar as it attempts to authorlie reimbursement In those Instances where the State Is not authcrlzed to bear the expense of relocation. Since the pro- visions of House Bill 432'are not severable, It 1s our opinion that House Bill 432 of the 55th Legislature, Regular Session, 1957, as submitted; Is unconstitutional, being in violation of Section 51 of Article III of the Constitution of Texas.

SUMMARY

House I3111 432 of the 55th Legislature, Regular Session, 1957, Is unconstitutional as submitted.

Very truly yours,

WIU WILSON ATTORNEYGENERAL

JR:F:jl:rh APPROVED:

OPINION COMMITTEE: H. Grady Chandler Chairman Edwin P. Horner Riley Eugene Fletcher Will Davis

REVIEWEDFOR THE ATTORNEYGENERAL

Geo. P. Blackburn