           THE      ATIWBRNEY           GENERAL
                        OF   %-EXAS




Mr; Eugene Russell                Opinion No. M- 1242
County Attorney
Bumet County                      Re:    Whether a water supply'cor-
Burnet, Texas 78611                      poration, created under
                                         Article 1434a, Vernon's
                                         Civil Statutes, establishes
                                         a "drinking water supply for
                                         public use" within the mean-
                                         ing of Article 4477-1, Ver-
                                         non's Civil Statutes, so as
                                         to make its subject to Health
Dear Mr. Russell:                        Department standards.

          Your recent letter requested the opinion of this office
upon the following question:

          "Is a water supply corporation, set up
     under Article 1434a and supplying water for
     its own members only, a 'person ~. . . corpor-
     ation . . . etc.' establishina a 'drinkina water
     supply ~. . . for public use'.-. . within <he
     language of A 4477-l Sec. 12 and 13, so as to
     make it subject to Health Department standards
     or size of pipe, specifically?"

          Section 12(a) of Article 4471-1, Vernon's Civil Statutes,
provides asfollows:

            "Every person, firm, corporation, public
     or private, contemplating'the establishment of
     any drinking water supply or sewage disposal
     system   for public use shall, previous to con-
     struction thereof, submit   completed plans and
     specifications therefor to the State Department
     of Health and the said Department shall approve
     same: provided said plans conform to the water
     safety and streams pollution laws of this state.
     The said watersupply    or sewage disposal system
     shall be established only after approval has
     been given by the State Department of Health."


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Mr. Eugene Russell, page 2       (M-1242)



          Section 13 describes various precautionary steps that
must be taken to protect the quality of a public water supply.

          We understand your query to be whether a water supply
corporation organized under authority of Article 1434a, Vernon's
Civil Statutes, is furnishing water for "public use" within the
sense the term as used in Article 4477-1, Section 12(a), so as to
bring the corporation's system under the jurisdiction of the State
Department of Health. Your inquiry indicates that the corporation
supplies water only to its own members.

          We are of the opinion that the answer to your inquiry is
properly in the affirmative, and that the corporation falls under
the jurisdiction of the State Department of Health as provided in
Article 4477-l.

          Article 1434a reads as follows:

           "Section 1. On and after the passage of
     this Act, three or more persons who are citizens
     of the State of Texas, may form a corporation
     for the purpose of furnishing a water supply or
     sewer service, or both, to towns, cities, private
     corporations, individuals, and military camps and
     bases! and may provide in the charter of such cor-
     poration that no dividends shall ever be paid upon
     the stock and that all profits arising from the
     operation of such business shall be annually paid
     out to cities, towns, corporations, and other
     persons who have during the past year transacted
     business with such corporation, in direct pro-
     portion to the amount of business so transacted
     . . .II (Emphasis added)

           Our opinion is that the system described in your request
is a system for public use. The system is available to all members
of the corporation and it does not matter whether there are few or
many members, so long as the water is available to all. Corporations
contemplated under Article 1434a are quasi-public corporations, with
a limited power of eminent domain, to operate on a non-profit basis,
and are distinguishable from purely private corporations operating
for private gain and with no responsibility to serve the public.
See Atty.Gen.Op. No. O-3433 (1941). Such corporations are recognized
in law as "public service corporations", which differ from private
corporations and are subject to regulation and control by the state
in matters as to which ordinary private corporations have freedom

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Mr. Eugene Russell, page- 3 :.i     (M-1242)




of contract.  14 Tex.Jur.2d 120-121, Corporations,   Section 8,
and cases there cited.

          In any event, Section 12(a) of Article  4477-l applies
regardless of whether the ownership is in .a "person, firm, cor-
poration, public or private."

           In view of the foregoing, we have, no doubt that ~the
Legislature intended that water supplied by such a corporation
is for public use and Section 12(a) of Article 4477-1, being a
remedial statute to carry out the police power of the state in
the field of public health, must be given a broad comprehensive
construction to cover any individual or corporation whose water
and sewage system  is subject to use by members of the public.
53 Tex.Jur.Zd 303-304, Statutes, Sec. 197.

          Statutory health regulations in behalf of the public
are subject to the test that the interests of the public generally,
as distinguished from those of a particular class, require such
state regulation, and that the means are reasonably necessary for
the accomplishment of the purpose and not unduly oppressive on
individuals.   39 Am.Jur. ,356, Health, Sec. 20.

                       SUMMARY

          A corporation organized under Article 1434a,
     Vernon's Civil Statutes, to supply water to its
     members provides water for "public use" within
     the meaning of that term as used in Article 4477-1,
     Section 12(a), V.C.S., and is subject to the juris-
     diction of the State Department of Health as pro-
     vided in Article 4477-l. V.C.S.




Prepared by James S. Swearingen      "
Assistant Attorney General




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Mr. Eugene Russell, page 4     (M-1242)




APPROVED: ':
OPINION COMMITTEE

Kerns Tayldr, Chairman
W. E. Allen, Co-Chairman
Bob Gauss
Lynn Taylor
Linward Shivers
Harriet Burke

SAMUEL D. MCDANIEL
Staff Legal Assistant

ALFRED WALKER
Executive Assistant

NOLA WHITE
First Assistant




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