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;   . . .
Honorable    Bob Strickland,         page 3          (w-78)


         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
