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7




                THE    Ano-P                 GENEWAL

                            OF     ‘P‘EXAS




        Honorable Jerry Dellana              Opinion No. WW-1397
        County Attorney
        Travis County Courthouse             Re:   Constitutionality of
        Austin, Texas                              House Bill 45, Acts 57th
                                                   Legislature, Third Called
                                                   Session, 1962, Chapter
        Dear Mr. Dellana:                          28,   page 73.
                  You have requested the opinion of this office regarding
        the constitutionality of House Bill 45, Acts 57th Legislature,
        Third Called Session, 1962, chapter 28, page 73, which has been
        codified as Article 1581f of Vernon's Civil Statutes. This
        enactment of the Legislature reads as follows:
                 "Section 1. The counties of the State of
            Texas are hereby authorized to pay for the re-
            location of water lines owned by water control
            and improvement districts when such relocation
            is necessary to complete the construction or
            improvement of Farm-to-Market Roads as defined
            by Sub-section 4-b of Article XX of Chapter 184,
            Acts of the Forty-seventh Legislature, Regular
            Session, 1941, as amended, provided the water
            control and improvement district which owns
            the water lines to be relocated agrees to re-
            pay the county for the cost of relocating the
            water lines within twenty (20) years with
            interest thereon at a rate equal to that paid
            by the county on their Road and Bridge Fund
            time warrants."
                  Not having been referred to any particular provisions
        of the Texas Constitution by your opinion request we shall
        direct this opinion to the consideration of whether House Bill 45
        is proscribed by any of the following constitutional provisions:
                  A. Section 50 of Article III which prohibits
             a gift or loan of the credit of the State to any
             person or corporation.
                  B. Section 51 of Article III which prohibits
             the grant of public money to any individual or
             corporation.
Honorable Jerry Dellana, page 2 (WW-1397)


          C. Section 52 of Article III which pro-
     hibits legislation authorizing any county to
     lend or grant public money to any individual
     or corporation.
          D. Section 6 of Article XVI which pro-
     hibits an appropriation of public funds for
     private or individual purposes.

          E. Section 3 of Article XI which pro-
     hibits a county from lending its credit or
     donating funds to any corporation or asso-
     ciation.
          We are aware of no other constitutional provisions
which could be considered as proscribing House Bill 45.
          All utilities, both public and private, place their
lines under, across, over and along the public roads and ways
of this State subject to the plenary right and duty of the duly
authorized governmental agency to maintain and improve such
roads and ways in the public interest. That such utilities
may be required to relocate their lines at their own expense
when necessitated by the construction or improvement of the
nublic roads or wavs is a nrincinal inherent in the assertion
of the police power of the-State; Barrington v. Cokinos,
161 Tex. 136, 338 S.W.2d 133         State v. Cit of Austin
160 Tex. 348, 331 S.W.2d 737         City of Sa%%tonio   jr'
Bexar Metropolitan Water District, 30yS.W.2d 491 (Tex.Civ.
Ann. 1958, error ref.). The policy requiring the relocation
of-utility lines is likewise expressed-in various specific
statutory enactments, to wit: Articles 1433, 1433a, 1436a
and 143613of Vernon's Civil Statutes. We perceive of no sound
reason why water control and improvement districts should not
be treated as other utilities in this respect and hereby hold
that their use of the public roads is subject to the same
regulation and control as any other utility.
          State v. City of Austin, supra, and Barrington v.
Cokinos, supra, are well considered opinions and contain ex-
cellent discussions of the constitutional questions involved
in the use of public funds in payment of the cost of relocating
utility facilities when such is necessitated by the exercise
of the police~power. The principles of law therein pronounced are
governing in this instance.
          In State v. City of Aus.ki~,supra, our Supreme Court
sustained the constitutionality of Article 6674w-4 of Vernon's
Honorable Jerry Dellana, page 3 (WW-1397)


Civil Statutes. This statute required the State to bear the
cost of relocation of utility facilities necessitated by the
National System of Interstate and Defense Highways. During
the course of the opinion at page 742 it Is stated:
         "Although petitioner argues otherwise,
    It cannot be said that respondents are under
    an absolute and continuing legal obligation
    to relocate at their own expense any utility
    installations owned by them and situated in
    public ways whenever such relocation is made
    necessary by highway Improvements. Their use
    of streets and highways for this purpose Is
    simply subject at all times to a valid exercise
    of the police power of the state. It Is only
    when the full measure of that power is exerted
    that they are obligated to make the installations
    conform to highway Improvements at their own
    expense. This duty would arise upon, and not
    before, the making of a lawful demand for re-
    location of the facilities. Here the Legis-
    lature has empowered the State Highway Com-
    mission to construct interstate and defense
    highways and to direct municipalities and
    utility companies to relocate their facilities,
    That grant of authority is conditioned, how-
    ever by the requirement that the utilities
    be reimbursed for the expense which they in-
    cur. In our opinion this does not constitute
    the release of an obligation to the state within
    the meaning of Article III, Section 55, of the
    Constitution."
          The following language from the opinion of Justice
McClendon in City of Beaumont v. Priddie, 65 S.W.2d 434 (Civ.
App. 1933) judgment of lower courts reversed and cause dismissed
for mootness. Texas & N.O.R. Co. v. Priddie, 127 Tex. 629, 95
S.W.2d 1290 (193b) is quoted with approval in State v. -city
of Austin,
      -    supra, it page 744:
         "But, although the state may compel the
    railroad to bear the entire expense of grade
    separation, nevertheless it is not required
    to do so, but may bear the entire expense it-
    self, or apportion it between Itself, and the
    railroad, While this power it generally recog-
    nized, the cases in which it has been challenged
    as violative of constitutional provisions similar
Honorable Jerry Dellana, page 4 (WW-1397)


    to those in this state Inhibiting the state
    or its subdivisions from making donations
    to private corporations or individuals appear
    to be rare. Those in which the question
    has been considered uniformly hold that state
    or municipal contribution to the expense does
    not come within such Inhibition. Lehl h
    Valley R.Co. v. Canal Board, 204 N.Y. &71,
    97 N.E. 964, Ann.Cas. 1913C, 12~28; Brooke
    v. City of Philidelphia, 162 Pa. 123, 29
    A. 387, 24 L.R.A. 781.  We think the soundness
    of this holding cannot seriously be questioned.
    While the paramount duty rests upon the rail-
    road to provide originally and thereafter to
    maintain the safety of the crossing, regardless
    of the requirements in that regard brought
    about by changes in conditions, still the
    interest therein of the state as representative
    of the public is such that the expenditure of
    public funds in this regard is a legitimate
    governmental function, and does not properly
    fall within the designation of a donation of
    public funds to a private enterprise. In the
    infinite variety of situations which present
    themselves, the state may properly make an
    adjustment of the expense, as the peculiar
    equities of each situation may in its judg-
    ment dictate. In this manner the judgment
    of the state is supreme, subject to judicial
    review only In case of fraudulent or arbitrary
    abuse of power."
          The Court went on to hold that Article 6674w-4 did
not amount to a grant or loan of public money in violation of
Section 51 of Article III or of Section 6 of Article XVI of the
Texas Constitution for the reason that the utility was merely
restored to its former position by operation of the statute and
in fact derived no net gain thereby. The Court further held
that the construction and improvement of public roads and ways
is a governmental purpose for which public funds could properly
be expended, using this languageat page 745:
          11
           . . .The removal of utility facilities
     which stand In the way is as necessary to the
     accomplishment of that purpose as the:removal
     of trees and hills. Unlike trees and hills,
     however, the utility lines must be moved and
     restored at another location If the people
.   -




        Honorable Jerry Dellana, Page 5 (WW-13%')


             are to receive services that are essential
             to the protection of their health and safety.
             The public thus has a direct and immediate
             interest In the relocation of utility facilities
             which would otherwise interfere with highway
             improvements, and payment of the non-better-
             ment cost thereof does not constitute a donation
             of public funds or an appropriation for a pri-
             vate purpose. . . .I'
                  In the case of Barrington v. Cokinos, 161 Tex. 136,
        338 S.W.2d 133 (1960), our Supreme Court sustained the consti-
        tutionality of a contract whereby the City of Beaumont was to
        bear the cost of relocating a railroad right of way through
        the city and the lowering of grade crossing at city streets.
        At page 140 of that opinion, in commenting upon the purpose
        of Section 3 of Article XI the Court stated:
                  11
                   . . .It does not prohibit all business
             dealings with private corporations and associa-
             tions, but municipal funds or credit may not
             be used simply to obtain for the community and
             its citizens the general benefits resulting
             from the operation of such an enterprise. On
             the other hand an expenditure for the direct
             accomplishment of a~legitimate public and
             municipal purpose is not rendered unlawful
             by the fact that a privately owned business
             may be benefited thereby."
                  It was further held that the contract to bear the
        cost of relocation of the railroad ri ht of way did not violate
        Section 51 of Article III or Section .2of Article XVI of the
        Texas Constitution.
                  Adverting to the question at hand, it is Important
        to observe that House Bill 45 does not relieve water control
        and improvement districts of the eventual burden of the ex-
        pense of the relocation of lines necessitated by the construction
        or improvement of Farm-to-Market Roads but merely allows a
        county, at Its discretion, to bear the immediate cost of such
        relocation upon the condition that the District repay the
        county with interest over a 20 year period. The pronouncements
        in the above discussed decisions leave no doubt that legislation
        which entirely relieved a water control and improvement district
        of the cost of relocation of its lines when necessitated by the
        construction or improvement of public roads and required such
Honorable Jerry Dellana, Page 6 (WW-13%')


relocation costs to be paid with public funds would be
within the prerogative of the Legislature and not in violation
of any constitutional prohibition. Having the power to afford
either complete relief or no relief from the consequences of
the exercise of the police power, we are of the opinion that
the Legislature necessarily has the power to accord partial
relief from the exercise of the police power in any degree
or measure which lies between the two extremes. Therefore
you are hereby advised that House Bill 45 is constitutional.

                     SUMMARY
          House Bill 45, Acts 57th Legislature, Third
     Called Session, 1962, chapter 28, page 73 which
     authorizes counties, at their discretion, to bear
     the cost of relocating the lines of water control
     and improvement districts when necessitated by
     the construction or the imporvement of Farm-to-
     Market Roads upon the condition that the county
     be repaid by the district over a 20 year period
     with interest is constitutional.
                               Very truly yours,
                               WILL WILSON
                               Attorney General of Texas


                          By: cp)‘o    b
                               W. 0. Shultz
                               Assistant
WOS:mkh
APPROVED:
OPINION COMMITTEE
W. V. Geppert, Chairman
John Reeves
Morgan Nesbitt
Coleman Gay
REVIEWED FOR THE ATTORNEY GENERAL
BY: Leonard Passmore
