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                          E3                      GENERAL


GRRALD C. MANN
                                   AUSTTN   11.Tpxas
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    Honorable A. E. Hickerson
    County Auditor
    Montgomery County
    Conroe, Texas

    Dear Sir:                       Opinion No. O-2517
                                    Re: Bas the commissioners court
                                        authority to issue a franchise
                                        to nloonl telephone company
                                        operating outside the City of
                                        Conroe in Montgomery County?

              Your recent request for an opinion of this depart-
    ment on the above stated question has been received.

                     We quote from your letter as follows:

                  "Has the Commissioners 1 Court authority to issue
             a franohise to a local telephone company operating out-
             side the City of Conroe in Montgomery County. If so,
             what Is the limit on the charge for this particular
             service."

                  Articles 1416 end 1417, Vernon's Annotated Civil
             Statutes read as follows:

                  "Ad. 1416. Corporations created for the purpose of
             constructing and maintaining magnetic telegraph lines,
             are authorized to set their poles, piers, abutments,
             wires and other fixtures along, upon and across any of
             the public roads, streets and waters of this State, in
             such manner as not to incommode the public in the use of
             such roads, streets end waters.

                   "Art. 1417. They may also enter upon any Lands
             owned by private persons or by a corporation, in fee or
             less eUtate, for the purpose of making preliminary
             surveys and examinations with a view to the erection
             of any telegraph line, and from time to time appropriate
             so much of said lands as may be neoessary to erect such
             poles, piers, abutments, wires and other necessary fix-
             tures for a magnetic telegraph, and to make such changes
             of location of any part of said lines as may fromtime
             to time be deemed necessary, and shall have a right of
Honorable E. A. Bickerson, Page 2, O-2517



     access to construct said line, and when erected, from
     time to time as may be required to repair the same,
     and shall have the right of eminent domain to obtain the
     right of way and condemn lands for the use of the
     corporation."

          "&I agency to whom the state has not delegated the ~
     power-cannot grant a franchise."  Corpus Juris, Vol. 26%
     page 1027.

           We   quote from Corpus Juris, Vol. 62, page 29, as
follows:

          "A telegraph or telephone company cannot occupy or
     use public streets or highways without legislative
     authority granted either directly or indirectly, and
     cannot exist by implication merely. The power to grant
     such authority rests in congress as to highways which
     are post roads; as to other streets and highways, the
     power rests ultimately in the state, and in municipal-
     ities to which the state delegates its power."

          We quote from Texas Jurisprudence, Vol. 40, page
407, as follows:

          "Being public utilities, telegraph and telephone
     companies are subject to regulation in the publiointerest.
     While this right of regulation is one of the inherent
     powers of the State and its subordinate agencies, yet,
     as mentioned in another article of this work, in assent-
     ing to the Federal Constitution the several states
     surrendered to the national government their powers over
     interestate commerce. Since it is settled law that the
     transmission of intelligence from one state to another
     constitutes interstate commerce, it results that tele-
     graph and telephone companies may be subject to regulation
     by three different agencies; the United States, the Stats
     and the inferior agencies, such as municipal corporations,
     to whom the State has delegated regulatory power.

          "The regulation of telegraph and telephone companies
     was for many years wholly in the hands of the several
     state governments.   But in 1910 the Federal Government
     assumed jurisdiction of such corporations, in so far as
     their interstate and foreign activities are concerned
     and state control is therefore definitely limited to
     intrastate matters...."
          We further quote from Texas Jurisprudence, Vol. 40,
pages 413, 414 and 415 as follows:

           "The statute that authorizes telegraph and telephone
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Honorable E. A. Bickerson, Page 3, O-2512



      companies to make use of 'any of the public roads,
      streets and waters of the State' does not in,terma
      make any distinction between telephone companies
      with respect to the character of service rendered -
      whether local or long distanoe. But it seems that
      there is a very significant distinction, in so far as
      the regulatory rights of muhioipal corporations are
      concerned. In the case of telegraph companies and
      long diatanae telephone companies a city, town or
      village may make reasonable rules and regulations in
      respect of the location of the line, the 'kinds of
      poles that may be used and the height at which the
      wires may be strung; but it has no right whatsoever
      to deny to such corporations the use of its streets,
      at least in so far as out-of-town business is oon-
      oerned; as to such business the right to use the streets
      is absolute.

           "But the situation seems to be wholly different
      with respect to local telephone companies. Such
      corporations have no absblute right to use the streets,
      and can do so only with the consent of the municipal
      authorities.   This consent is commonly manifested by
      the grant of a.franohise which may fix the rates to be
      charged for telephone service and set forth the
      general conditions under which the company may transact
      its business...."

          With reference to Article 1416, supra, we quote from
Texas Jurisprudence, Vol. 40, page 368, as follows:

           9Vhile it seems probably that the Legislature did
      not have telephone oompanies in mind at-the time it
      enacted this statute, the courts have held that the
      term tmagnetio telegraph lines' is broad enough to
      include telephone lines. Accordingly it is now settled
      law that, with an exception hereinafter noticed, tele-
      phone companies are as much entitled to take advantage
      of the enaotment as telegraph oompsnies. It will be
      noted, however, that the grant is confined to oorpora-
      tiona only, and this obviously means that neither a
      co-partnership nor an individual is entitled to its
      benefits, in the absence of special authorization."
          The general rule governing powers and limitations of
the county commissioners!. court, as set out by the Supreme
Court in Commissioners' tiourt vs. Wallace, 15 SW 2d 535,
reads in part as follows;

           "The commissioners* court is a creature of the
      State Constitution, and its powers are limited and
      controlled by the Constitution and the laws as passed
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Honorable E. A.   Hlokerson, Page 4, - O-2517



     by the Legislature.  Art. 5, Sec. 18, Constitution
     of Texas; Baldwin vs. Travis County, 88 SW 480;
     Seward vs. Falls County, 246 SW 728; nland vs. Orr,
     39 SW 558."

          "The legislative department of the government
     is a source of the grant of a franohise, and there
     must be a certain grantee. The Legislature,  unless
     constitutionally inhibited, may exercise its authority
     by direct legislation, or through agencies duly
     established having power for that purpose."  Texas
     Jurisprudence, Vol. 19, page 879.

          It is a well established rule that the commissioners*
court may exercise only those powers specifically designated
by the Constitution or the statutes or those powers necessarily
implied. The fact that a franchise is a very special privilege
given only by a direct legislative grant or by specifically
designated agency, we must reach the conclusion that the
Legislature has not designated the county commissioners' court
as an agency with the right and power to grant a franchise.

          In view of the foregoing authorities, you are
respectfully advised that is the opinion of this department
that the commissioners 1 court does not have the power or
authority to grant a franchise to a local telephone company
operating outside the city of Conroe in Montgomery County.

           Trusting that we have fully answered your inquiry,
we are


                                  Very truly yours

                             ATTORNEY GEWERAL OF TEXAS

                             BB   s/ Ardell Williams
APPROVED JULY 15, 1940        -
s/ Grover Sellers                        Ardell Williams
FIRST ASSISTANT                                 Assistant
ATTORNEY GENERAL

APPROVED OPINION COMMITTEE
By BWB, Chairman

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