                           AUSTIN.         TEXAS




                      January   23, 1950


Hon. Bascom Giles, Commissioner
General Land Office
Austin, Texas                Opinion               No. V-987

                                     Re:     Constitutionality    of Article
                                             7467b, V.C.S..    relinquish-
                                             ing the title to abandoned
                                             river beds in Counties over
                                             350,000.

Dear Sir:

            The question   for opinion is stated in your letter         as fol-
lows :

          “I respectfully    request your official opinion as
     to the constitutionality   of House Bill No. 336, Chap-
     ter 372, Acts of the 51st Legislature,     1949, codified
     in Vernon’s Annotated Civil Statutes as Article 7467b.

          “I have at hand applications     from J.M. Shaw and
     A. Raymond Jones for the purchase of .434 acres and
     .386 acres, respectively,     of the abandoned Trinity
     River bed in the City of Dallas,     Texas, situated near
     the intersection   of Industrial Blvd. and Corinth Street.
     Many other areas in the City of Dallas are subject to
     the provisions   of this Act.

           “The question has arisen as to the sufficiency    of
     the consideration  of $10.00 per acre provided for in
     said Act for the sale of these lands.    The question has
     also arisen as to the reasonableness     of the cause for
     including in said Act beds and channels of abandoned
     rivers in counties with a population in excess of 350,-
     000 and excluding those with a population of less than
     350,000.   This Department,   of course, has formulated
     no policy under the administration    of this law, as the
     above named applications    are the first to be consider-
     ed under same.”

            The Act referred    to in your letter       provides   as follows:

           “Section 1. In all counties of this State having a pop-
     ulation in excess of three hundred and fifty thousand (350,-
Hon. Bascom   Giles,   page 2   (V-987)




    000) according to the last preceding Federal Census,
    the State of Texas hereby relinquishes,      quit,claims
    and grants unto the adjacent landowners       all right,
    title and interest of the State of Texas in and to all
    of the beds and channels of all rivers and streams
    that are now, or that may hereafter be, abandoned
    by reason of the construction     of new beds or chan-
    nels for such rivers or streams by levee improve-
    ment districts,   drainage districts,  or flood control
    districts  organized   and created under the laws of
    the State of Texas or by special Act of the Legisla-
    ture of the State of Texas, where such abandonment
    is provided under an approved plan of reclamation.

         “Sec. 2. The landowners   adjacent to such aban-
    doned bed or channel, shall own that portion of such
    bed or channel adjacent to their respective  lands,
    and to the middle of such abandoned bed or channel.

          “Sec. 2a. Any claimant to any portion of said
    land may perfect his title by applying to the Commis-
    sioner of the General Land Office to purchase the
    land claimed.    Such application shall be accompanied
    by field notes of the tract claimed together with filing
    fee of One Dollar ($1) and evidence of such claimant’s
    right and title.   Upon receipt of a satisfactory   applica-
    tion and satisfactory    showing of right, such applica-
    tion shall be approved and the land awarded to the ap-
    plicant.   Within sixty (60) days after such award. the
    applicant shall pay to the Commissioner       of the Gener-
    al Land Office for the use and benefit of the public
    school fund the sum of Ten Dollars ($10) per acre for
    the land, and upon receipt thereof, the Commissioner
    shall issue to the claimant a patent to the land.     The
    Commissioner      is hereby authorized to make such rules
     and regulations   as may be appropriate    and necessary
    to accomplish    the purpose of this Act.

          ‘Sec. 3. Whenever a bed or channel of a river or
    stream has been filled und,er an approved plan of rec-
    lamation as provided by law. or where an approved
    plan of reclamation  provides for the filling of a bed
    or channel of a river or stream.   such fact shall be con-
    clusive evidence of the abandonment of such bed or
    channel.    Nherever an approved plan of reclamation
    provides that a bed or channel of a river or stream
    shall be used for the transmission   or storage of storm
    waters. such fact shall be conclusive   evidence that such
    bed or channel has not been abandoned.




                                           4
Hon. Bascom    Giles,   page 3   (V-987)



          ‘Sec. 4. Nothing herein contained shall be con-
    strued as affecting in any manner the rights of the
    State, cities, counties,   any other political subdivision
    of the State, public utility companies.     or of the public,
    in and to the streets,   alleys, roads, parks, levees,
    flood control works, water lines. sewer lines, gas
    lines, oil lines, power lines, railroads,     or other pub-
    lic utility lines. where the same now occupy or cross
    any abandoned river bed or channel, provided further,
    that nothing herein shall be construed as affecting in
    any manner the validity of oil, gas and other mineral
    leases,   heretofore  executed. or that may be hereafter
    executed by the State prior to the abandonment of such
    bed or channel.

         ‘Set,  5, Wherever    the term ‘approved plan of rec-
    lamation’ is used herein, it shall be construed to mean
    a plan of reclamation    approved by such authority or
    authorities   as are in such cases provided by the laws of
    the State of Texas.

         “Sec. 5a. All minerals   in any land donated under
    the provisions  of this Act are hereby reserved   to the
    State of Texas.

          “Sec. 6. The provisions    of this Act shall not ap-
     ply to that portion of the river bed situated within the
     corporate   limits of San Antonio, Texas.*

          The various constitutional  provisions  dealing with the pub-
lic free school iund have no application here.    State v. Bradford.
121 Tex. 515, 50 S.W.2-1 1065. 1072 (1932).  The only provision of the
Texas Constitution which may apply is Article III, Section 51, which
provides,  in part, as follows:

          “The Legislature  shall have no power to make any
     grant or authorize the making of any grant of public
     money to any individual, association   of individuals.
     municipal or other corporations    whatsoever.   . s .*

           The foregoing constitutional    provision  refers only to grants
of public money.     Nevertheless,   our courts have strongly intimated,
without expressly     so holding, that it applies to property rights as
well.   See State v. Bradford (supra); Rhoads Drilling Co. v. Allred,
123 Tex. 229 70 S W Ld 576 581 (1934) Friedman v. American             Sur-
ety co.,   137 ‘Tex. 149, 151 S.WN.2d 570. j-1)        Barber v. G-iles.
lTF%k.     401, 208 S.W.2d 553 (1948).    We assum:    for th e purpose of
this opinion that Article III, Section 51, applies to the abandoned bed
 areas in question.
Hon. Bascom         Giles.   page 4   (V-987)




           Standing alone, Section 1 of Article 7467b. constitutes            a
grant of land without consideration        in violation of said Article III,
Section 51. It was, doubtless,       for this reason that Section 2a was
enacted under which the applicant could perfect his title by paying
 $10 per acre to the State.     If the Act is construed as not constitut-
ing a present conveyance       of the State’s title, under which the ad-
jacent landowner may or may not elect to obtain the patent pro-
vided for in Section 2a, his title being transferred          by operation of
the Act itself and regardless       of whether he pays the $10 per acre
or not, then it is invalid.    However, the Act is also subject to the
construction    that title does not pass automatically        but only after
application has been made, $10 per acre paid and the patent is-
sued.   If so construed.    the Act is valid.    It is well settled that if
an Act is subject to two constructions,         one of which will render
it unconstitutional,    the construction    to be adopted is the one
which will render the same constitutional,           it being assumed that
the Legislature    intended that the Act be so construed.           Green v.
Robison,    117 Tex. 516, 8 S.W.Zd 655(1928);:Empire            Gas 81 Fuel
Co. v. State, 121 Tex. 138, 47 S.W.Zd 265, 27m                 ; and 9 ‘l‘ex.
3ur. 483.

          It is our construction   of the Act, therefore,   that no pre-
sent title to the land passes automatically     to the adjacent land-
owners, but passes,    if at all, only after application and compli-
ance with the procedure     set forth in Section 2a. The Act is a
Sales Act.

           The question        of the adequacy   of the consideration   is sug-
gested   by your letter.

           The power to control the disposition       of the land of the
State resides in the Legislature,       and the matter of determining
the adequacy of the consideration        to be received therefor is a
political matter exclusively      within their province.    Conley v.
Daughters of the Republic,       106 Tex. 80. 156 S.W. 197, 157 SW.’
                aples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 177
             erial Irrigation Co. v. Jayne. 104 Tex. 395, 138 SW.
           ; 38 Tex. Jur. 85b.     Whether the Legislature      has acted
wisely in this instance or whether the consideration          to be re-
ceived represents      the true market value of the land are matters
within legislative    province with which neither the courts nor
this office have any connection,      provided, of course, no consti-
tutional provisions     are violated.    Treating the Act in question
as a Sales Act. and we think it must be so treated, the Act is
constitutional,    and the question of the adequacy of the considera-
tion being purely legislative      does not affect the constitutional   as-
pects of the problem.

          As you point out, the Act covers only counties having a
population of 350.000, or more, according to the last preceding




         bv-field    notes of the tract   claimed   tcmether with filine
Hon. Bascom     Giles,   page 5   (V-987)



Federal census.   At present the Act applies only to Dallas and
Harris Counties.    We take it from your letter that you feel that
the Act may violate that portion of the Constitution under which
“the Legislature  shall not . . . pass any local or special law” in
certain enumerated   instances and also “where a general law can
be made applicable.”    Texas Constitution,   Article III, Section 56.

           The subject matter of the Act in question is not among
the enumerated     instances   concerning which special laws are pro-
hibited.   If the Act fails because of this provision of the Constitu-
tion, it is because a general law could be made applicable.            Our
courts have held that the question of determining         whether a gen-
eral law can be made applicable is a question for the Legislature
and that its action in passing the law. if not conclusive,       is at least
persuasive,    that a general law would not be applicable.        39 Tex.
 Jur. 63. In any case. it seems that if the classification        set forth
in the Act is prospective     so as to permit the future entrance into
the class when the enumerated        qualifications  and standards have
been met, and when the classification        is reasonable,   in the sense
that it is broad enough to include a substantial       class, then the
same is a general rather than a special law. Miller v. El Paso
County, 136 Tex. 370, 150 S.W.Zd 1000 (1941); 2 Sutherland Statu-
toryConstruction       (3rd Ed.) 20. We believe that the Act satis-
Ties these requirements.       The fact that the bed of the river with-
in the corporate    limits of San Antonio is excluded does not change
this result since the exclusion      of such river bed is reasonable.
 See Anderson v. Polk, 117 Tex. 73, 297 S.W. 219 (1929) which rec-
 ognizes that San Antonio acquired title to the bed of the San An-
 tonio River under the grant from Spain to such city.

            In our opinion,   the Act is constitutional.

             He wish to call your attention    to Article   7467a,   which pro-
vides    as follows:

              “The State of Texas hereby relinquishes.      quit
        claims and grants unto all incorporated     cities and
        towns that have a population of forty thousand inhab-
        itants, or more, according to the 1920 census, all of
        the beds and channels,   and also all of the abandoned
        beds and channels, of all rivers.   streams    and other
        channels that are now or that may hereafter       be with-
        in the present or future corporate    limits of such
        cities or towns, in so far as the beds and channels,
        and such abandoned channels,     of such rivers.   streams
        and other channels may be owned or claimed as the
        property of said State.   (Acts 1925, 39th Leg., ch. 155,
        p. 366, sec. l).”
        Hon. Bascom    Giles,   page 6   (V-987)




                  Dallas and Harris Counties are the only counties pres-
        ently covered by Article 7467b.     Several Texas cities are cover-
        ed by Article 7467a. but of these, only two lie within Dallas or
        Harris Counties. i.e., Dallas and Houston.     Articles  7467a and
        7467b conflict insofar as abandoned river bed areas are located
        within the corporate  limits of Dallas and Houston.     This poses a
        serious question as to the validity of any title which may issue
        under Article 7467b.    If patents issue to the areas within the
        Dallas City Limits upon which applications     are now pending. they
        will pass whatever present right and title the State has, but we
        do not pass on the nature or extent of this title or the relative
        rights which may then exist between the patentee and the City of
        Dallas.

                                   SUMMARY

    4             Article 7467b, V.C.S., Acts 51st Leg., R.S.
            1949. ch. 372, p. 708, purporting to relinquish
.           and grant to adjacent landowners in all counties
            having a population in excess of 350,000,    accord-
            ing to the last Federal Census, the title to beds
            and channels of abandoned rivers and streams
            is a sales act and does not automatically    pass
            title to the land. The Act does not violate Sec-
            tions 51 and 56 of Article III, Constitution of
            Texas.

        APPROVED:                                  Yours   verytruly,   ‘: ‘~

          Charles    D. Mathews                     PRICE DANIEL
         Executive   Assistant                     Attorney General




                                                            Assistant   ’’
