                 THEA~ORNEY                GENERAL
                              OFTEXAS




     Honorable Arthur Stehling
     County Attorney
     Gillespie,County
     Fredericksburg, Texas
     Dear Sir:
                                  C$inion No. O-2442
                                    : Under the facts set forth, does
                                       the commissionerst court have
                                       authority to prescribe the tele-
                                       phone rate:

..                                      And related questions.
     We have carefully considered your request for an opinion from this
     Department, touching the telephone franchise contract originally
     entered into by the commissioners' court of Gillespie County and
     A. 6. Stuart, July 19, 1924. We thank you for the brief submitted
     with your letter.
     tiequote as follows from your communication for the factual back-
     ground to your request:
          "On July 19th, 1924, the Commissioners Court of Gillespie
          County granted to A. C. Stuart a franchise to 'construct,
          reconstruct, own, maintain, and operate a telephone exchange
          plant.'in the form hereto attached in which is fixed a rate
          for rural subscribers of fifty cents per month as shown by
          paragraph ((c)~. All rights of A. C. Stuart are not owned
          by United Telephone Company.
          "At the time the franchise was granted there was no incor-
          porated city within the county and no telephone franchise
          other than the one referred to has ever been granted by the
          city of Fredericksburg which was incorporated in the year
          1933. United Telephone Company has from time to time sought
          an amendment to the charter in respect to the rated applicable
          to the subscribers referred to in paragraph t(c)', but upon
          being requested by the Commissioners Court to produce its
          books to show whether or not the rate was a fair one, the
          company withdrew its request."
Honorable Arthur Stehling, Page 2     O-2442


In connection therewith, you ask the following questions:

1. Does the commissioners' court have authority to prescribe the
telephone rate?

2. If the commissioners! court did not have the authority to
prescribe the rates, was it authorized to contract a rate with
the grantee in the franchise in behalf of the citizens?

3. If the rate set does not specify whether the system is to be
a grounded or metallic system, would it be applicable to a
metallic system?
It should first be pointed out that a commissioners' court is not,
either expressly or by necessary implication, authorized to pre-
scribe telephone rates, and is vested with no power or control of
any nature over a telephone company constructing long distance or
local telephone lines in the county. These matters simply involve
powers that the commissioners? court may not exercise under
Article 5, Section 18 of the Constitution of Texas, or under Article
2339, et seq,, Revised Civil Statutes of Texas. As said by the
Supreme Court in the case of Commissioners1 Court v. rfallace,
15 S. W. (2d) 533:
     "The commissioners' court is a creature of the State Consti-
     tution, and its powers are limited and controlled by the
     Cohstitution and the laws as passed by the legislature.
     Article V, Section 18, Constitution of Texas; Baldwin v.
     Travis County 88 S. W. 640, Seward v. Falls County (Tex.
     Civ. App.) 246 S. W. 728; Bland v. Orr, 39 S. W. 558."
This principle, in an analagous situation to the one at hand, was
announced in the case of Edwards County v0 Jennings, 33 S. bJ.
585, in the following language:
     "That the commissioners1 court would have the authority to
     contract for a sufficient water supply for jail and court-
     house'there can be no'room for‘do.ubt;but when we have a
     contract not only to supply the necessities of the public
     building, but to supply the general public with water, and
     providing for special privileges as to laying pipes, a very
     different question is presented. Counties are political or
     civil divisions of the state, created for the purpose of
     bringing government home to the people, and supply the neces-
     sary means for executing the wishes of the people, and bring-
     ing into exercise the machinery necessary to the enforcement
     of local government. Counties, being component parts of the
     state, have no powers or duties except those clearly set
     forth and defined in the constitution and statutes......
     Looking to the powers granted by the legislature by virtue
     of the above constitutional provision, we find that no
         .-   -




Honorable Arthur Stehling, Page 3     O-2442


     authority is given the commissioners' court to enter into
     such contracts as the one sued on in this case.....It is
     clear, therefore, that the attempted contract was beyond
     the power and authority confided in the county commissioners'.."
Consequently, this Department held in Opinion No. 1805 that a
commissioners' court has no authority to grant a franchise to a
power and light company covering the county of Brewster, Texas.
We enclose a copy of this opinion for your information.
By statute telephone corporations are given the right to construct
and maintain their lines along, upon and across any of the public
roads, streets and waters of the state. They may likewise enter
upon private lands to do so. They have the right of eminent do-
main. Articles 1416 and 1417, Revised Civil Statutes. San Antonio
A. P. Ry. Co. v. S, W. Tel. & Tel. Co., 93 Tex. 313, 55 S. W.
117, 49 L. R. A. 459, 77 Am. St. Rep. 884; City of Brownwood vI
Brown Telegraph & Telephone Co., (Sup. Ct.) 157 S. W. 1163.   Commis-
sioners' Courts may not restrict or enlarge upon the rights
granted in these statutes; they exist independent of any action
by them.
An analysis of the authority of a municipality, in this connection,
will be helpful. A municipality in Texas is likewise without the
power to prohibit a long distance telephone company from passing
over and upon its streets, having the power only to reasonably
regulate the placing of the lines and poles so as not to incommode
the public. City of Brownwood v. Brown Telegraph & Telephone Co.,
(Sup. Ct.) 157 S. W. 1163.
The transaction of local business within the municipality is, of
course, different. This may be done only with the consent of the
municipality and affords a basis for the grant of a franchise by
the municipality. Fink v. City of Clarendon, 282 S. W. 912.
Adverting to the questions propounded by you, we are confronted
with the proposition that the commissioners' court of Gillespie
County was without authority to grant a telephone franchise to
A. C. Stuart and, moreover, had nothing to grant in the way of a
franchise not otherwise available to the grantee. The only
inquiry remaining, therefore, is whether there may be notwith-
standing, certain rights springing from the franchise contract
entered into as described.
That there might be is , perhaps, suggested by the cases of Athens
Telephone Co. V. Athens, 163 S. W. 373, 182 S. W. 42, and Texas
Telephone Co. v0 Mart, 226 S. W; 497, wherein the telephone com-
pany in each case was held bound by the terms of afranchise con-
tract in which rates were fixed, notwithstanding the absence of
the right of the municipality to fix the rates to be charged by
a public service corporation. There was involved in these cases,
Honorable Arthur Stehling, Page 4       O-2442


however, the original or underlying right of the municipality to
deny or grant permission to the telephone company to use the
streets of the tit in constructing a local telephone system.
The granting of a 8franchiseby the city bestowed a benefit upon
the telephone company and the courts merely held that the company,
having received such benefits, might not afterwards deny the
authority of the city to contract as to the rates.
The lack of authority in these cases pertained to the fixing of
rates; there existed in the minicipality the power to grant a
franchise which, when granted, conferred a benefit upon the
grantee and the franchise contract therefore embodied a valuable
consideration. The power to make a franchise contract for tele-
phone service for the benefit of its citizens is essential to
the purpose of a municipality; it acts as a property owner and
proprietor of a business enterprise for the advantage of the city
and its citizens. In so doing, it acts as a distinct legal entity.
These fundamental principles are lacking as regands a county.
The power to grant a franchise and thereupon confer a Benefit,
is non-existent in the situation where the commissioners' court
of a county undertakes to grant a franchise right to a telephone
company. The only logical conclusion that may be reached is that
the attempted granting of a telephone franchise by a commissioners'
court bestows no right or privilege and hence no benefit upon the
grantee, and no consideration supports the transaction; It is
a nude pact and of no force and effect.
Your questions 1 and 2 are, therefore, respectfully answered in
the negative, whereupon a discussion of your third question
becomes unnecessary.
                                    Yours very truly
                               ATTORNEY GENERAL OF TEXAS


APPROVED JUL. 16, 1940         BY
                                    Zollie C. Steakley
                                          Assistant
   GROVER SELLERS
FIRST ASSISTANT
ATTORNEY GENERAL
ZCS:BBB
ENCLOSURE
