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                     .      I                                                  ,, S&e,~~-78, ~~-45 and
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                                           THE    ATTORNEY            GENERAL
                                                       OF   TEXAS            Overruled     I;y State    of   Texas   v
                                                                                  City    of Dallas
                                                                                               a ,Iii
                                                                                  State     of Tectasvs.
                         FVIL% WILSON                                             City    of Ailstir.
                   ATTORNEYGENERAL
                                                                     Au@&   26, &*7

                            Honorable D. C. Greer           Opinion No. W-236
                            State Highway Nnglneer
                            Texas Highway Department        Re:    The legality of the use of
                            Austin 14,~Texas                       State end Federal Highwey funds
                                                                   for the payment of the costs
                                                                   of relocating utility fec%lities
                                                                   located on public hlghwejisdr
                                                                   city streets which form a pert
                                                                   of the National System of Inter-
                                                                   state end Defense Highways, un-
                                                                   der the provisions of House B111
                                                                   Nb. 179, Acts of the 55th Legls-
                            Deer Mr. Greer:                        lature, Regular Session, 1957.
                                   You have requestedWan opinion of this office es to the
                            legality of the use of State ena Fegeral Highway fun&lsfor the
                            payment of the cost of relocating utility facilities located on
                            public highways or city streets, which form a pert of the Ne-
                            tionel System of Interstate end Defense Highways, under thee-pro-
                            visions of House Bill No. 179, Acts'of the 55th Legislature,
                            Regular Session, 1957. Tour request concerns the legalitg'of
                            the use of these fun&s under the.following conditions~r
                                        "1. Privatelyowned uttlity fecllltles inside
                                     of cltles, occupying ,the right of wag of e city
                                     street.
                                        "2 . Cooperatively-owned utility fec'llltiesun-
                                     der the same conditions.
                                        “3 . Municipally-owned    utflitg facil~tles under
                                     the same conditions which    are proprietary functions
                                     of the cltles.
                                        1’4. Municipally-owned
                                                .’                utility facilities under
                                     the same conditions which    are governmental functions
                                     of the city.
                                        “5; Privately-owned utility facilities occupy-
                                     ing the right of way of the public highway outside
                                     of the limits of a city.
                                        “6. Cooperatively-owned ~utllity facilities un-
                                     'Uer like conditions end locetion~s.

               ’
Honorable D.C. Greer, page 2   (w-236)


       “7. Municipally-owned utility facilities oc-
    cupying the right of way of e public highway out-
    side the limits of a city."
       Before we discuss the legellty of the use of State end
Federal funds under each of the seven conditions we shall set
forth~certein facts and polnts~of law which we believe are
applicable end controlling in all cases.
       Section 4A of House Bill No. 179 provides in pert:
       “Sec. 4A.  Whenever the relocation of any
    utility facilities is necessitated by the im-
    provement of any highway in this State which has
    been or may hereafter be established by eppro-
    priate authority according to law as e pert of
    the National System of Interstate and Defense
    Highways, including extensions thereof within
    urban areas, such relocation shell be made by
    the utlllty at the cost' and expense of the State
    of Texas provided that such relocation is ellgi-
    ble for Federal participation. Reimbursement of
    the cost of relocation of such facllitles shall
    be made from the State Highway Fund to the util-
    ltg owning such fecilltles, anything contained.
    In any other provision of law or in any permit,
    or agreement or franchise issued or entered into
    by any department, commission or political sub-
    division of this State to the contrary notwith-
    standing. The term 'utility includ,espublicly,
    privately, and cooperatively owned utilities en-
    gaged in furnishing telephone, telegraph, com-
    munications, electric, gas, heating, water, rail-
    road, storm sewertrsanitary sewer or pipeline
    service. . . . .
       It ~111 be noted that Section 4A of House Bill 179, ai
set forth above, states that "such relocation shall be made by
the utility at the cost and expense of the State of Texas m-
vided that such relocation is elinible for Federal verticiua-
a."     (Emphasis ours)
       70 Stat. 374, 23 U.S.C.A., SeCtion 162~(e),(Sup. 1956),
the 1956 Federal Aid Highway Act, states in part:
       II
        . . . . Provided, That Federal funds shell
    not be apportioned to the Statesmder this Sec-
    tion when the payment to the utility v'iolates
    the law of the State or violates a legal con-
    tract between the utility end the State."
Honorable D.C. Greer, page 3   (WW-236)


       Thus, the provisions of,House Bill No. 179;,when-con-
strued in the light of the 1956 Federal Aid Righwey Act; es is
required by Section &A of House Bill No. 179, require us to ex-
amine the laws of the State of Texas for any violation which
might 'resultes a consequence of the expenditure of the State
end Federal Highway funds involved in your request.
       Section 51 of Article III of the Constltutlon of Texas
provides in pert as follows:
       "The Legislature shall have no power to make
    any grant or authorize the making of any grant
    of public monies to any individual, association
    of individuals,        al or othm corporations
    whatsoever; . .        Emphasis ours)
       It is ouropInion that the above quoted Sectionof the
Constitution of Texas must ultimately be applied to each of
the seven circumstances set forth in your request and that if
a grant of "public monies" is in fact involved in any of these
cases, then the use of State end Federal Highway funds would
violate the law of the State of Texas end therefore be unlaw-
ful under the provisions of Section 4A'of House Bill No. 179,
Acts of the 55th Legislature, Regular Session, 1957.
       It Is our i%rther opinion that the State has the prerog-
ative under Its police power to force the removal of all of the
utilities in question, subject only to the requirement that if
there is e taking of a compensable property right, then there
must be adequate compensation. City of San Antonio v. San
Antonio St. Ra. Co., 39 S.W. 136'(1896,writ ref.)
        It is well settled law in Texas that, where there is a
reasonable exercise of police power, the use of property may
be restricted or the property may even be destroyed, end~there
IS  no legal liability on the pert of the State to compensate
the owner. Houston & T.C.R. Co. v. City of Dallas, 98 Tex.,
  96, 84 S.W.m    (1905); Keller v. Corpus Cbrlsti~ 50 Tex. 614
?        ,Rllisv. West Unlversitr Place, 141 Tex. 608, 175 S.W.
21i8;69p
       (1943).
       On the other hand, if e compensable property right is
involved then Section 17 of Article I of the Constitutlonof
Texas would require that the municlpelity or other corporation
be reimbursed es e result of the "taking' of their property.
       In so holding, we are not unmindYu1 of the early aeci-
sion of the Supreme Court of Texas in H-& T.C. Rs.~~Co~.~_v_,
                                                            Citi
of Dallas, 98 Tex. 396, 84 S.W. 648 (1905i ) in which lt is
stated that the police power of the State) is not to exceed the
Honorable D.C. Greer, page 4    (~~-236)


duties of the State to provide for the relative needs of the
people, end if property rights have been invaded under the
guise of this power in an unreasonable or arbitrary manner then
It may become necessary for the courts to inquire es to the ex-
istence of facts to support the power and to protect these
rights under the provisions of the Constitution.
       Nor are we unaware of the holdings of the Texas Courts
of       Appeals in the case of City of Beaumontv. Priddie;,
     cf.vil
65 S.W. 2a 434, (Tex. Civ. App. 1933, Dismissed as moot in 95~'
S.W. 2a 1290:,1936); end Kilpetrick v. Comnensation Claim Board,
259 S.W. 164 (Tex. Civ. App. 1924, no writ history).
                                                           -.
       The Court in the Priddb cese'hela that though-the Rail-
road had the duty to bear the cost of the grade seperation'in-
volved, the interest of the State, as representative of the
people, was such that the expenditure of public funds to help
beer'the expense is a ligltimate governmental function end is
not,within the provisions of Section 51 of Article III o-fthe
Constitution of Texas, and that the State may properly make
adjustments of expenses "as the peculiar equities of each sit-
uation may inits judgment dictate." The Court in its decision
relied entirely on cases from without this jurisdiction, and
the point has never been before the Supreme Court of Texas.
       The Court in the Kilpatrick case held that a'moral obli-
gation to compensate might in proper Cases be sufficient to
allow compensation, and thatin such cases the claims involved
are not prohiblted by Section 51 of Article III of the Consti-
tution of Texas.
       This pointin the KilDatriCk case was specifically over-
ruled in Austin National Bank v. Shevvard, 123 Tex. 272;'71 S.W.
2d 242 (1934) where the Court, after citing the Texas cases re-
lied on the Kilnatrlck case, said:
              I,
                We have carefully.examined these au-
      thorities and in our opinion none of them support
      the hold&   that a mere morel obligation will sup-
      port an appropriation of state money to an individual."
       Inasmuch as the holding of the Court in the Priddie case
has never been passed upon by the Supreme Court 'ofTexas, along
with the fact that the latter court in the ShennSfrdcase has In
clear terms stated that a "mere morel obligation will not sup-
port en epproprlafion of state fundsto~an individual; it is
our opinion that en equitable or morel claim will not support
the grant of public monies to any munlcipelity or other corpor-
ation when such grant would otherwise fell within the prohibi'
tlons of Section 51 of Article III of the Constitution of Texas.
.   .




    Honorable D.C. Greer, page 5      (~~-236)


               Your request would require us to apply the principles
        set forth above to general hypothetical fact situations. We
        do not feel that it Is possible to render an adequate opinion
        under such ,circumstances,and will, therefore, restrict oUr
        opinion to these general principles of law until such tiineas
        we have before us acthal fact s~ituatlon5to which they may be
        applied. For this reasbn we shall nat attempt to answer the
        seven questions presented in your request at thfs time.
                                   SUMMARY
              State and Federal Hlghway funds may be used to pay
           the cost of relocating facilitles'of public utFlItie8
           located within the rights of way of public highways or
           tiitystreets, which form a part of-th&NtitiotialSystem
           bf Interstate and,Defense Highways, under-the provi-
           .s.lons
                 of Sedtion-&A of House~Bill.No.,179, Acts of the
           55th Legislature, Regular S$ss1on, 1957, when the ce-~
           location involves a taking of property so as to come
           within the provisions of Section 17 of Artl%le I of
           the Constitution of Texas.
                                       Very truly yours,
                                       WILL WILBON
                                       Attorney General of Texas
                                       By s/Wayl&nd C. Rivers, Jr.
                                            Waglana C. Rivers, Jr.
                                            Assistant
    WCR:pf:jl:wb:wc
        APPROVED:
        OPINION COMMITTEE
    R. Grady Chandler, Chairman
    J.C. Dads, Jr.
    C.K. Richards
    W.V. Geppert
    John Reeves
    Merg Kate Wall
        RWIEWH) FOR THE~~ATTORNEYGENEFUL
        BY:   Geo. P. Blackburn
