                      THE           ATTOECNEV               GENERAL

                                        OF       %kXAM




Honorable   Cecil M. Pruett                       Opinion       No. M-380
County Attorney
Hutchinson   County                               Re:     Power of county to require
Borger,   Texas   79007                                   utlllty companies to relocates
                                                          poles and lines  on public   rlghts-
                                                          of-way under Municipal   Airports
                                                          Act.

Dear Mr. Pruett:

Your request        for   opinion     presents    the    following     question:

    "Does Hutchinson       County have the power to require         South-
    western   Public     Service  Company, a corporation       engaged in
    the transmission       and sale of electrical      energy In Texas,
    and Southwestern       Eel1 Telephone'Company,      a corporation      en-
    gaged in local       and long distance    telephone    service,   to re-
    locate  their poles       and lines without    expense to the County
    in connection      with the County's     program of expanding       Its
    airport   facllltles      In order that such lines      located   on a              ,~
    public  road and State Highway In the city of Borger and
    Hutchinson     County will    not constitute     a hazard to air-
    planes taking off and landing upon the expanded runways
    of the airport?"
In support     of    your   request,     you relate       the    following   facts:

    "The air approach to and from one of the expanded run-
    ways passed over a traffic        circle     in the City of Forger
    and a State Highway traversing           along such traffic     circle,
  " along with other streets       in the City of E!orger . . . The
    lines   In question   were partially        In and partially    out of
    the City of Borger.       A portion      of the lines    of each com-
    pany had been obtained      by private       easement from private
    parties   before   the roads or highways were established.
    Hutchinson    County was the governmental          agency which owned,.
    maintained    and had charge of the constructipn            of the alr-
    port,   as well as the facilities         involved   In the expansion
    program.     It alone requested      the relocation      and removal
    of the lines."

It also Is made to appear that the poles and lines      in question                    existed
before  the airport expansion  and that they apparently    did not                    con-
                              -1878-
Hon.      Cecil   M. Pruett,      Page 2 (M-380)



stitute    an airport    hazard prior     to the expansion.       Despite    these
considerations,      however,     it is the opinion     of this office     that Hutchln-
son County may require         the relocation    of the utility     poles and lines
located    upon city    streets,    state highways,     and county roads without
expense to the county subject           to the qualification      hereinafter      set
out except      that the county may not do so In those situations              where
the poles and lines        are located    on private    easements,    obtained     from
private    parties   before    the roads or highways were established,             and
which easements have not heretofore           been purchased      or taken by eminent
domain by the state or county.

The power of the county to compel the removal of an “airport             hazard”
is set forth    in the Municipal     Airports   Act, Articles  46d-1,through
46d-22,   Vernon’s   Civil Statutes.      In Article  46d-1,  a “municipality”
j~s defined   as including  a “county”.       Article 46d-2 provides    that:

       “Every     municipality   is authorized,       . . . to . . . regulate,
       protect     and police   airports    and air navigation        facilities,
       either     within  or without     the territorial      limits    of such




Article       46d-15   provides     that:

       “The . *. regulation,       protection      and policing     of airports
       and air navigatlon       facilities,       including     the acquisition
       or elimination     of airport        hazards,     and the exercise     of any
       other powers herein granted to municipalities                 and other
       public  agencies,     . . . are hereby declared          to be public    and
       governmental    functions,       exercised      for a public   purpose,
       and matters of public         necessity;      and In the case of any
       county,  are declared       to be county functions          and purposes     as
       well as public     and governmental;          . . . ” (Emphasis added]

Not only does the above statute       render the operation      of the airport
a public  and governmental    function:      it was so held in the case of
City of Corsicana   vs. Wren, 159 Tex. 202, 317 S.W.2d 516 (1958).               A
county Is possessed    of police   powers and may reasonably         exercise   the
same in its proper jurisdiction.          20 C,J.S.    869, Counties,    Sec. 92.
By the reasonable   exercise    of its police      power, it possessed      the
power to require   the necessary     utility    relocations.


                                            - 1879-
Hon.    Cecil   M. pruett,     Page 3 (M-380)



      As to the installations      located    on easements procured          from pri-
vate parties,      and which easements have not been subsequently                ac-
quired by the State as a part of the public              rights-of-way,,the          cor-
porations     in question   are clearly    entitled     to relocation       compensation.
                                                          ,323 S.W.2d 471 (Tex.Civ.
                                                                   . Highway Commis-
                                                                   nctlon    exists
                                                                   involving      instal-
lations    located   In the highway and street        rights-Af-way,        the same
being regulated      by statute   and subject     to the reasonable         exercise      of
the police     power, an inherent     sovereign     power.     cf. Attorney       General
Opinion Nos. WW-1090 (1961) w-961            (1960),    and WI-1004      (1961).

       It also should be here observed            that a right   of easement only is
involved,     and a material      distinctlon      must be drawn as to the nature of
the property      right   involved,     between the mere right       of an easement for
utility    lines,    and  a  compensable      vested property    right arising    under
a franchise,      which Is a grant and a contractual           right.    25.Tex.Jur.2d
599, Franchises,        Sec. I; p. 600, Sec. 2.

     The right of the telephone   company to use highway                  and road rlghts-
of-way has been conditioned    by Article 1416, Vernon's                  Civil  Statutes,
reading as follows:

       "Corporations     created    for the purpose of constructing
       and maintaining      magnetic      telegraph    lines,   are authorized.
       tom 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 mariner''''    not          ."
       to incommode the public          in the use of such roads,        streets
       and waters."      (Emphasis added)

     The right     of the electric   utility    company to the use of such
rights-of-way      has been conditioned      by Article 1436a, Vernon~'s'Civll
Statutes,     reading,   in part,  as follows:

        "Co orations       . . . engaged in the generation,           transmission
       and f;por the distrtlution       of electric      energy in Texas . . .
       shall have the right to erect,              construct,     maintain and
       operate     lines   over, under, across,         upon and along any
       State highway or county road in this State,                  except within
       the limits      of an incorporated        city or town; . . . and to
       erect,     maintain and operate       lines     over,   across    and along
       the streets,      alleya    and other public        property     in any
       incorporated      city or town in this State,            with the consent,
       and under the direction          of the governing        body of such
       city or town . . . Any 'such corporation               shall notify     the
       State Highway Commission,          or the Commissioners            Court having
       jurisdiction,      as the case may be, when it proposes                to build
       lines    along the right-of-way         of any State Highway, or county
       road, outside      the limits     of an incorporated          city or town,
                                     -1880-
Hon.    Cecil   M. Pruett,     page   4 (M-380)



       whereupon the Highway Commission,                or the Commissioners         Court,
       may, if It so desires,             designate    the place along the right-
       of-way where such lines              shall  be constructed.        The public
       agency having jurisdiction               or control    of a highway or county
       road,    . . . may require       any such corporation,         at its own expense,
       to relocate        its lines     on a State highway or county road out-
       side the limits          of an incorporated        city or town, so as to
       permit the widening           of the right-of-way,          changing of traffic
       lanes,     improvement of the road bed, or improvement of drainage
       ditches      located     on such right-Of-Way         by giving    thirty    (30)
       days' written         notice    to such corporation         and specifying     the
       line or lines         to be moved, and indicating            the place on the
       new right-of-way          where such line or lines           may be placed      ...
       and the governing           body of such city or town may require              any
       such corporation,           at its own expense,        to re-locate      its poles
       and lines       so as to permit the widening             or straightening       of
       streets,       by giving     to such corporation        thirty    (30) days'
       notice     and specifying         the new location       for such poles a;d
       lines    along the right-of-way            of such street       or streets.
       (Emphasis added.)

Obviously,   the corporations         in question     may be compelled      to remove
at their   own expense their        installations       located   In public   rights-of-
way whenever such location          is made necessary        by highway improvements.
While sustaining      the constitutionality          of a statute    authorizing     com-
pensation   involving    relocation        of interstate     highways,   the Supreme
Court of Texas in State of Texas v. City of Austin,                  331 S.W.2d 737
(Tex. Sup. 1960) has clearly            recognized    that the companies could be
forced   to remove their     lines,      because of highway improvements,           at
their   own expense in the,absence           of an "assumption"
                                             --                      by the state of
the expense.     The Court said:
        I,. . . While public    utilities      may use the same
       fioads   and streets-7   for laying their        lines,   such use
       is subject    to reasonable      regulation    by either    the
       state,   the county or the city,         as the case may be.
       The utility     may always be required,        in the valid
       exercise    of the police     power by proper governmental
       authority,    to remove or adjust        its Installations      to
       meet the needs of the public          for travel     and transpor-
       tation.
       It. * . The Legislature     acting  for the State has primary
       and plenary     power to control   and regulate  public  roads
       and streets.      It may delegate   that power to counties    or
       municipal    corporations."     331 S.W.2d 741.

In reaching    the conclusion          that in the     absence of a stat.ute assuming
liability   for compensation,           Texas will     adhere to the common law rule,
the Court further     declared:

                                        -1881-
         .      .



Hon.    Cecil   M. Pruett,        page   5 (M-380)



       "Compensation   is not required       to be made for damage or
       loss resulting    from a valid     exercise   of the police     power.
       See State v. Richards,      157 Tex. 166, 301 S.W.2d 597,
       and authorities     there cited.      The absence of a cause of
       action  does not, however,      reduce the loss which indivi-
       duals are often required      to bear or make their       injuries
       any less real   . ..'    331 S.W.2d 743.

In addition         to   the   above   authority,
                                              we believe   that the City of San
                                                    388 S.W.2d 231 (Tex.Civ.App.
1965# error    ref.,    n.r.e.                   ban Antonio v. Hexar Metro-
politan  Water Dist.,        309 S.W.2d-491(Tex.Civ.App.        1958, error ref.)
also support the power to require           the relocation    in order to support
public  surface      and air travel    on or above highways.

Thus, even without       statutes,    such a&our     Articles    1436a and 1416,'
involving    relocations     for highway purposes,        the common law which Texas
has adopted leave the utility          companies in the same position       of having
tom bear the relocation        costs.   Attorney    General Opinion No. WW45
(1957),   citing    numerous authorities,       including     Southern Hell Tel. &
Tel. Co. v. Commonwealth, 266 S.W.2d.308,              310-311 (Ky. 1954),   in
which the Court said:

        "Aside from the express    provisions    of the grant,    we think
       there is a clearly   implied    condition    that appellant   may
       be required  to remove and relocate       its facilities    when
       such removal and relocatio;      are in the interest      of public
       convenience  or safety   ...

Numerous authorities  from throughout                the   country   are   there   cited   in
support of the statement.

In Texas, Articles         1016, 1146, and 1175, Vernonts~ Civil          Statutes,
grant to the cities         the control     and the police      'power over the.
streets    within    their    boundaries.    Articles     6674w-1 and 6674w-5,
VernonIs     Civil   Statutes,    grant to the Highway Commisslon such
power over State Highways within            or outside     the limits    of any such
city,    and  the   exercise-of     such  power  qualifies     and  renders
inexclusive      the dominion of any city with respect             to specific
streets,     alleys    or other public     ways thereby     affected.      State v.
City of Austin,        supra, at page 741.

We see no difference     in whether the relocating       of these facilities
was occasioned    by road improvements      or by airport    improvements,
both being governmental      functions   of the county (as distinguished
from proprietary)     and a valid exercise     of the police    power of
such county with no question        of paramount rights    involved.     In
Attorney   Caneral's   Opinion NO. O-2978 (1941),      this office    expressed
such opinion    in regard to electric      power poles and lines     some


                                          -1882-
                                                                           ,      ,




hon.     Cecil    M. Pruett,   page   6 (M- 380)



eight     years    prior to the original passage           of   Article   1436a
(Acts     1949,    51st Leg., p. 427, ch. 228).

      We find no statute    similar    to Article   6674w-4,   applicable
here,   that would require     the payment by all counties       In this
state of the expenses      Incurred    in the relocating     of utility
poles   and lines,  occasioned      by a valid exercise    of the police
power under the Municipal       Airports    Act.

     It Is the understanding      of this office  that the Federal
Aviation   Administration    has taken the position    that unless  the
State law requires      the county to pay for these relocating     ex-
penses that matching federal       funds are not available   under 49
U.S.C.   1112 (a) (1) as "a necessary     cost incurred,"   because it
is not necessary     to pay for that for which you do not have to pay.

     Likewise,    the portion    of Article   46d-2,  hereinbefore
quoted,   authorizing    the purchase     of such easements or other
Interests    'as are necessary",     could hardly be authorizing,       muoh
less requiring,      the expenditure    of funds for such relocating
when, under the existing       law of this state,     they may be required
to be removed in the valid exercise          of the police    power without
expense to the county.

      In view of the foregoing,            we are unable to construe
Articles     1416 and 1436a in such a way as to form some sort                        of
contract,     whereby the utility          companies derive          a vested property
right    In the placing        of their    poles and lines,          so that if they
later    Incommode the public          In other ways than highway improve-
ments Incident        to surface     travel,      the county or state is
absolutely      required     to compensate        such utility       companies for
removal costs.          We find no ambiguity          in the statutes         to require
a resort     to construction.          These statutes         merely are an expres-
sion of the public         policy     of the state as it existed              at the
time of their        adoption.      State v. City of Austin,             supra, at
page 741.       The enumeration        of the purposes,         above quoted,       In
Article     1436a would not exclude            all other purposes         or reasons
requiring      relocation      under the expressio          unis rule of statu-
tory construction.           This rule is only applied              where because of
ambiguity      such a canon of construction              becomes necessary        to
enable a court to determine             the intention         of the legislature.
It Is not applicable           where the legislative           intention      is dis-
closed    by the entire        act,   or when its application            will   not aid
the court In ascertaining'and               giving    effect     to the legislative
intent,     as in the situation          presented      here.      53 Tex.Jur.2d
206-208,     Statutes,Sec.        142.

        We cannot,     by construction      of the statutes  In question,
hold     that the     state legislature      intended  by implication   to

                                   -1883-
          . .



Eon. Cecil      M. .Pmett,    page 7( M-360)

contract    away th8 police    power of the stat8 or it8 poll~ical
subdivisions.     Clt   of OarLand v. Texas Power and Light Co.,
342 S.W. 2d 81d           (Tex. clv.  App. 1961, no writ),  from
which we quote, in part:
              19       We recognize     that ‘the grant by a munici-
      pallty*to     a public   service      company of the right         to use
      streets     does not divest      the municipality       of its police
      power over the grantee         in relation       to its use of such
                      12 McQuillin,     Municipal      Corporations,      Fran*       ’
                             However,     ‘it is elementary        that an
      exe&e        of the police     power, in order to be valid,
      must be reasonable;       unreasonable        regulations      cannot
      be sustained      under the power.’          12 McQuillin,      MtwZL-
      cipal    Corporatlone,    Franchises,        B34.75.     Nor can tne
      police     power be used by the city          to deprive     the fran-
      chise holder      of any essential        rights   and privileges
      acquired     thereunder.      Northwestern       Telegraph     Exchange
      co. v. citv      of Minneancrist       tll Minn, 140. 83 N.wb 52-T,
      b6 N.W. 69, 53 L.R.A. 175.’

       We, conclude     that Articles       1416 and 1436a merely set out
a limited     authorization       to place these utility         lines    on the
rights-of-way      and cannot be construed            to limit   the police
power of the state,         county,    or municipality.         Article    46d-l(c)
and Article     46@-1 define       an “Airport     hazard” as any structure
which obstructs        airspace.      Article    46d-15 provides        that the
eajminatlon     of airport      hazards are public         and governmental
fur&ions.      Article     466-2 declares       an airport     hazard ~to be a
public    nuisance     and their prevention         “shouQd/ be accomplished,         ’
to the extent      legally     possible,      by Cxescise    of the police
power, without       compensation.”

        It does not appear from the facts        furnished     just where,
under Article      143&,   the county indicated      “the place on the
right-of-way     where such Line or lines      may be placed.”        As-
suming that this statutory        provision   was followed,       we hold
that the removal requirement        was a reasonable       exercise   of the
police    power, and the utility      cornpan%@& must bear the cost
of relocation      of their lines.     .On the other hand, if the
utility     companies were not afforded      such a new location,         then
such removal requirement       might constitute      an unreasonable       ex-
ercise    of the police    power, and, if so, the county would be
liable     to pay the cost of removing the lines         and poles of the
uti3.i ty companies.
                                      SUMMARY

                  Under the facts   submitted,    Hutchlnson
                  County has the power to require        the
                  relocation  of telephone     and utility
                  poles and lines cons tl tu ting “airport
      I                              - 1884-
Hon. Cecil    M. Pruett,       page 8 (M-380)

                  hazarda,"     and the neceesary      and
                  reasonable     coat ,of relocation     is
                  not required      to be borne by the
                  county.




Prepared     by
Houghton Brownlee,       Jr.
AsBi6tant Attorney       General
APPROVED:
OPINIOI COMMITTEE

Kerns Taylor, Chairman
George Kelton, Vice-Chairman
Roger Tyler
Monroe Clayton
Woodrow Curtis
Bob Crouch
Dyer ~MOore, Jr.
Louis Neumann
w. V. Geppert
Staff’ Legal Assistant
Hawthorne Phillips
Executive A8sistant




                                   -   1885   -
