Hon. Ben Ramsey                       Opinion   NO. v-1569
Lieutenant   Governor
Austin,   Texas                       Re:   The statutes      under which
                                            cities   and towns are now
                                            authorized     to negotiate
Dear Sir:                                   mineral    leases.

             Your request         for an opinion   reads     In part   as
follows.



             "It  has been pointed      out to me that
      Article    1~67,   R.C.S.,   enacted    in 1919, and
      Article    5400a, R.C.S.,     enacted     In 1937, are
      In conflict      in several   respects;     provided
      and only If Article        5400a applies     to cities
      and towns.       These conflicts     will   be readily
      apparent to you without         my calling     them ex-
      pressly    to your attention.
             ,I
                  ,   .   ”   .




               "May I therefore     request    that you
       officially    advise me whether Article         1267
       alone governs cities       and towns as therein
       described    as to the leasing       of their oil
       or other mineral      lands,    or whether Article
       5400a is the controlling         statute,   or whether
       both articles     must be read together        in order
       to determine    the rights      of a city    to make a
       mineral lease and the proper procedure             for
       so doing."

          Article 1267,   V.C.S.     (Acts 36th Leg.,R.S.   1919,
ch. 117, p. 183), atithorizes    cities    and towns to lease
their land for mineral development        as follows:
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Hon. Ben Ramsey -’ Page 2 - v-1569



             “Cities    and towns chartered       or organized
      under the general       laws of Texas, or by special
      Act or charter,       which may own oil or mineral
      lands,   shall    have the power and right        to lease
      such oil or mineral        lands for the benefit       of
      such town or city,        but shall not lease for
      such purposes      any street     or alley   or public
      square In said town or city,          or any land there-
      in dedicated     by any person to public        uses in
      such town or city;        and no well shall be drilled
      within    the thickly     settled   portion   of any city
      or town, nor within        two hundred feet of any
      private    residence.”

             Article 5400a, V,C.S. (Acts 45th Leg.,     R.S.1937,
ch. 279,    p. 568), grants the same power to political      sub-
divisions    of the State of Texas as follows:

            “Section    l.,   Political     subdivisions     which
      are bodies    corporate     with recognized       and de-
      fined areas,     are hereby authorized          to lease
      for mineral    development       purposes   any and all
      lands which may be owned by any such political
      subdivision.

              “Set;    2. The right        to lease     such lands
      shall be exercised          by the governing        board,
      the commission        or commissioners         of such po-
      litical     subdivision       which are by law con
      stltuted      with the management, control,              and
      supervision       of such subdivision,           and when
      In the discretion          of such governing        body
      they shall determine            that It is advisable
      to make a lease of any such lands belonging
     to    such district        or subdivision,        such govern-
      ing body shall give notice              of its intention
      to lease such lands,            describing     same, by
      publication       of such notice        In some news-
      paper published         in the county,       having a
      general     circulation       therein,     once a week
      for a period       of three (3) consecutive            weeks,
      designating       the time and place after            such
      publication       where such governing          body will     re-
      ceive     and consider       bids for such mineral leases
      as such governing          body may determine         to make.
      On the date specified            in said notice,        such
      governing      board or body shall receive               and con-
      sider any and all bids submitted                 for the leasing
Hon. Ben Ramsey - Page 3 - v-1569



        of said lands or any portions             thereof    which
        are advertised        for leasing,     and in the dis-
        cretion    of such governing        body shall award
        the lease to the highest           and best bidder
        submitting      a bid therefor,      provided      that If
        In the judgment of such governing              body the
        bids submitted        do not represent       the fair
        value of such leases,         such governing        body
        in their     discretion     may reject     same and
        again give notice         and call    for additional
        bids,   but no leases       shall   In any event be
        made except upon public           hearing    and con-
        sideration      of said bids and after          the notice
        as herein provided.

               “Sec.2a.      Provided   that all such leases
        may be granted by public          auction    Andy that no
        leases    shall be executed       In any case except
        and unless      the lessor    shall   retain    at least
        one-eighth      royalty,   provided     further   that in
        no case shall       the primary term of said lease
        be for more than a period           of ten (10) years
        from the date of execution           and approval
        thereof .‘I

              The emergency clause  to Article  5400a (Acts           45th
Leg.,    R.S.1937,  ch. 279, p.568)  reads as follows:

               “The fact that political             subdivisions
        of the State have lands owned, held,                  and
        used for public        purposes       but which purposes
        will not be hindered           or Interfered       with by
        the development        of said lands for mineral
        purposes,      and that some of said lands have
        possibilities        of minerals       therein   and that
        development       of said lands for mineral pur-
        poses is necessary          in order to conserve
        said mineral estate           and prevent      the loss
        thereof,      create   an emergency and an lmpera-
        tlve public       necessity      that the Constltu-
        Mona1 Rule requiring             bills    to be read on
        three several        days In each House be sus-
        pended and said Rule Is hereby suspended,
        and this Act shall          take effect       and be in
        force    from and after        its passage,       and It Is
        so enacted. ”
Hon. Ben Ramsey - Page 4 - v-1569



                As will be observed             from the above, Article
 1267 applies          only to "cities        and towns," while Article
 5400a applies          to "political        subdivisions       which are
 bodies    corporate        with recognized         and defined       areas."
 At the outset,           therefore,      some doubt arises         as to
,whether Article           5400a should be held to include                cities
 and towns within           its reference         to "political       sub-
 divisions."           Many Texas decisions           have stated that
 cities    and townsare           political       subdivisions      of the State.
 Payne v. Massev.  -.       145   Tex,    237.    196  S.W.2d    493   (1946);
 Texas Natior la1 Guard Armorv-Board                  v. McGrB,~l32~ Tex, 613,
 126 S.W.2d 627 (1939);              City of Goose Cree k v. Hunnicutt,
 120 Tex. 471, 39 S.W.2d 617 J1931);                     Love v, City of Dallas,
 120 Tex. 351,          40 S.W.2d 20 (1931);           City of Abllene         v,
mte.       113 S.W.2d 631 (Tex.Clv.App.                  1937, error dism.).
 Cer ?i&lv-       In the linht         of these-decisions.          it is DoSSible
 to interpret          the phrase "political            subdivisions"       as ln-
 cludlng     cities       and towns and hence it Is possible                  to give
 Article     5400a a construction             whereby it applies           to leases
 by cities      and towns if we are to consider                  nothing more
 than the mere literal              definition      of word~s. We do not
 find it necessary,            however,      to decide whether cities             and
 towns are political             subdivisions       within     the meaning of
 Article     5400a.        For the purpose of this 'opinion we will
 assume that they are.                Thus, the question          to be decided
 Is whether,         In the light        of pertinent       and well established
 legal    principles,         Article      5400a can properly         be construed
 as applying          to the execution         of oil and mineral          leases
 by cities       and towns.         We think this question            must be
 answered in the negative.,

             Under the assumption       that cities      and towns are
 political   subdivisions     of the State,     Articles    1267 and
 5400a are In pari materia         as to cities   and towns and
 should be adjusted      according    to the following      rule In
 2 Sutherland,    Statutorv    Construction,     Sec. 5204 (3rd ed.
 1943):
               "General    and special     acts may be &
        &      materia.     If so, they should be con-
        strued together.        Where one statute      deals
        with a subject      in general,terms,      and another
        deals with a part of the same subject             in a
        more detailed      way, the two should be harmo-
        nized If possible;       but if there is any con-
        flict,   the latter     will   prevail,   regardless   of
        whether it was passed prior           to the general
        statute,    unless    it appears that the legislature
        intended    to make the .g%?neral act controlling."
Hon. Ben Ramsey - Page 5 - v-1569



             In Texas     the above rule has been applied
                             them Cole v. State,      106 Tex. 472,
                                      In this case Article        1591,
           enacted in 1911, gave the Texas courts              of civil
appeals exclusive       jurisdiction     over certain      specified
appeals.      In 1913, Article       1521 was enacted giving         the
Supreme Court of Texas jurisdiction             over cases In which
errors    of substance     had been committed by the courts             of
civil   appeals,    and it wascontended        that Art. 1521 lm-
plledly    repealed    the specific     exclusive    jurisdiction
proViSiOns     Of Art.   1591.      The Court held that these pro-
visions    must be read as exceptions          to Art. 1521 and
stated the controlling         rule thusly:

             “Repeals    by lmpllcatlon     are never favored.
      Laws are enacted with a view to their permanence,
      and it is to be supposed that a purpose on the
      part of the lawmaking body to abrogate             them
      will   be given unequivocal       expression.      Knowledge
      of an existing      law relating    to the same subject
      is likewise     attributed    to the Legislature       In
      the enactment of a subsequent          statute;    and when
      the later    act is silent      as to the older law, the
      presumption     is that its continued       operation     was
      intended,    unless    they present    a contradiction
      so positive     that the purpose to repeal         is manl-
      fest,     To avoid a state of conflict          an implied
      repeal results      where the two acts are in such
      opposition.       But the antagonism must be abso-
      lute - so pronounced       that both cannot stand.

           ~“Though they may seem to be repugnant,
      if it is possible      to fairly     reconcile     them,
      such Is the duty of the court.             A construction
      will  be sought which harmonizes           them and leaves
      both in concurrent      operation,      rather    than destroys
      one of them.     If  the  later     statute    reasonably
      admits of a construction        which will      allow effect    to
      the older law and still        leave an ample field         for
      Its own operation,      a total    repugnance      cannot be
      said to exist,     and therefore       an implied    repeal
      does not result,     since in such case both may stand
      and perform a distinct       office.      . . .’

Similar holdings   and language by Texas courts may be found
in Dendv v. Wilson,   142 Tex. 460, 179 S.W.2d 269 (1944),
where the Juvenile   Delinquent Act was held to be subject
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Hon. Ben Ramsey - Page 6 - v-1569



to certain     evidentlary      requirements     which had previously
been enacted      Into the Penal Code; Flowers v. Pecos River
R.Co.,    138 Tex. 565,      186 S.W.2d 973 (1941);        Bishop v.
Houston Independent        School District,       119 Tex. 403, 29 S.W.
2d 312 (1930);       Fortinberry     v. State,    283 S.W, 146     T?x.
Comm.App. 1926);        Culver v. Miears,       220 S.W.2d 201 t Tex.
Clv.App.     1949);    and State v. Humble 011 & R?fK. Co., 187
S.W.2d 93 (Tex.Clv.App.1945            . In view of this authority,
It Is clear     that Article       12 7 must be construed       an an
exception     to Article     5400a and that cities        and towns, even
though they may be political            subdivisions    under Article
5400a, are authorized          to execute    mineral   leashes under
the provisions       of Article     1267.

              That the above result       conforms   to the legislative
intent    Is evidenced    by the fact that the emergency clause
of Article      5400a declares    that political     subdivisions    own
mlnerally     rich lands and have no leasing         authority.     The
Legislature      must be presumed to have known that Article            1267
gave cities      and towns the power to lease their property             for
mineral     development   at the time Article      5400a was enacted.
Yet, there was no repealing          clause   In Article   5400a.    Clear-
ly, therefore,       the Legislature     could not have Intended       for
Article     5400a to have any application        to cities     and towns In
the leasing      of their   lands for 011 and mineral development.

          Ten gears after   the enactment of Article   54008
the Texas Supreme Court in Cits of Beaumont v. Moore
146 Tex. 46, 202 S.W.2d 448 (1944),     in discussing th; power
of cities to lease their  lands,  said:

              "It Is not disputed   that the City of Beaumont
      has the power under its charter       to contract   gen-
      erally,     and, under Its charter  and Article    1267,
      Vernon's     Ann. Civ.St.,  It Is authorized    to sell
      or lease Its real property      and to warrant the tl-
      tle thereto."

Moreover,  In the dissenting   opinion   In that case,      three mem-
bers of the Court recognized    the authority     of cities     and towns
to lease  their properties   under Article    1267,  saying:

             "These considerations     no doubt prompted
       the legislature   to authorize     cities by statute
       to lease city property      for oil and gas. Article
       1267,  R.C.S.
Hon. Ben Ramsey - Page 7 - v-1569



             We think that the above quoted language of the
Court in the Moore case cannot be disregarded.                Even ?so>@
Article    5400a had been a part of our statutes           for a decade
when the Moore case was decided,        we find that all members
of the Court were looking       to Article    1267,    rather    than
5400a, as the source of a city’s         authority     to execute     min-
eral leases.      This language of the Court,        coupled with the
authorities     previously  discussed,     substantiates      the con-.
elusion    we have reached that Article       1267 is controlling         in
the lease of lands by cities        and towns for mineral develop-
ment.

              You are therefore      advised    that In our opinion
Article    1267 was not repealed       by Article      5400a, and that
the latter     must be construed      as applying      to political
subdivisions     other than cities       and towns, which,        if they
may be considered       political    subdivlsions,care       nevertheless
controlled     In their    oil and gas leasing        by Article    12,67. Any
question     as to whether remedial       legislation     Is necessary
In order to clearly        evidence   the Intent of the l,egisl.ature
as interpreted      herein,     or to change the law as we interpret
it In this opinion,        Is a matter of discretion         for the legis-
lature    and not this office.

                                 SUMMARY

               Article     1267,  V.C.S.   (Acts 36th Leg.,
        R.S. 1919, ch.117,        p* 183),    which authorizes
        cities    and towns to Issue mineral        leases,     was
        not repe.aled by Article         5&00a, V.C.S.      (Acts
        45th Leg., R.S. 1937, ch. 279, p. 568),              which
        authorizes      political    subdivisions   of the State
        to accept bids on mineral          leases,  but must be
        construed      as an exception     to the later     statute
        applying     to cities    and towns.

                                         Yours   very   truly,

                                            PRICE DANIEL
APPROVED
       :                                 Attorney  General

Charles D. Mathews
First  Assistant

‘Price Daniel                                    Thomas Black
 Attorney General                                   Assistant

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