              WE          OMNEY             GIENERAL

                              7rlEXAS




                            May   2, 1951


Hon. Rogers   Kelley, Chairman
Senate Water Rights, Irrigation
  and Drainage Committee
52ad Legislature
Austin, Texas              Opinion No. V-1171

                            Re:   Constitutionality of House Bill
                                  No. 25, as amended, relating to
                                  the construction  of dams on the
                                  Nueces River.

Dear   Sir:

        Your request for the opinion of this office concerns
House Bill No. 25 which is pending before the Senate Commit-
tee of which you are Chairman.    You state:

         “A hearing was held upon the Bill before the
   Committee     . . , and the Committee   instructed the
   writer m. 9 to request an opinion from you as to the
   validity and to the constitutionality   of the Bill, be-
   fore taking any action upon the Bill, as a serious
   question was raised before the Committee         as to the
   Bill’s validity and constitutionality.”

         House Bill No. 25 provides:

        “Section 1. No application for a permit for the
   construction,   enlargement    or extension of any dam,
   lake, reservoir    or other facility upon the Nueces
   River and/or any of its tributary streams      for the
   diversion,   impounding or storage of public water
   which would inundate or cause the inundation or
   forced relocation,    partially or wholly, of any city
   or town incorporated     for more than ten (10) years
   shall be granted or permit issued by the State Board
   of Water Engineers      without the consent of the major-
   ity of the qualified property taxpaying electors     of
    such city or town.”

The other sections of the bill provide the method for determin-
ing the necessity  for an election and the procedure for conduct-
ing that election should it be required to determine  if a majority
of the electors favor the project.
Hon, Rogers     Kelley,   page 2        (V-1171)



         As originally    i.ntroduced, House Bill No. 25 was not
restricted  in applicati,en to the Nueces River but was applic-
able to any river in the State. By amendment,        however, it
was pa,Ovided that the terms of the bill would apply only to
the Nueces River,      It is in this latter form that the bill is be-
fore us,+.

        ,The subject of the constitutionality          Or valid’lty   of the
bill presents two questionsi   These are:

        (1) Whether House Bill No. 25 is a local or
   special law prohibited by Section 56 of Article III
   sf the Texas Constitution in that

               (a) It regulates t&e af;fairs of counties,
   cities,   tOwns, wards, 0~ school dis,tricts:   or

            ,(,b) It pr,Ovides fbr the opening and con-
   ducting of electhons or fixing or changing the places
   obud@ng:    ot

             (c) Whether House Bill No, 25 is a lbcal
   or special law 4&h    is prohibited in cases whese
   a ge,neral law can be made applicable,,

        (2) Whether the necessity   for an elac’$ion and
   consent of the majority of property owners t0 be af-
   5ected is an impairment   of the right of eminent, do-
   main granted to the Lower Nueces River Water Su~pp-
   ply District and the other authorities  which might
   desire to construct dams On the Nueces River,,

         The first question arises by virtue of the prOvisions
0f Section 56 of Ar,ticle III of the Texas Constitution which
are, in part:

        “Sec. 56. The Legislature     shall not, except as
   otherwise provided in this Constitution,     pass any
   local or special law, authorizing:



         ‘“Regulating     the affairs   of counties,    cities,   towns,
    wards or school       districts;



          “For the opening and conducting of elections,               or
    fixing or changing the places of voting;
Hon. Rogers    Kelley,   page 3     (V-1171)




        “And in all other cases where a general law
   can be made applicable,    no local or special law
   shall be enacted.   D ~ 0n

         The effect of this bill is to limit the power of the State
Board of Water Engineers        to grant permits for the construction
of improvements     upon the Nueces River for the diversion,          im-
pounding or storage of public water when such construction
would inundate or force relocation         of incorporated   cities or
towns described    in the bill.    Directly or indirectly it also lim-
its the power of an existing public agency, the Lower Nueces
River Water Supply District,        created by House Bill No. 283,
Acts 51st Leg., R.S. 1949, ch. 159, p, 326 (Art. 8197f note, V.C.
S.) to construct dams, etc., on the Nueces River when they
would inundate or force relocation         of such a city or town. In
these respects   the bill operates on and affects the power and
duties of the State Board of Water Engineers           and the Lower
Nueces River Water Supply District rather than “regulating
the affairs of counties,   cities, towns.’ etc. In Harris County
Flood Control District v. Mann, 135 Tex. 239, 140 S.W.Zd
7I940) the Supreme Court held that the act creating the Hays
Count; Flood Control District with boundaries            and area iden-
tical with the boundaries and area of Harris County, and mak-
ing the Commissioners’      Court of Harris County the governing
body of such district,   does not violate Article 3, Section 56,
prohibiting the Legislature      from passing any “local law” or
 “special law” regulating the affairs of counties or prescribing
the duties of officers in counties,       The Court said:

         “Simply stated, the Act of 1937 is fully author-
   ized by Section 59 of Article XVI of our State Con-
   stitution, and the Act creating this district should
   not be classed as a local or special law within the
   meaning of the constitutional  provision under discus-
   sion, ”

          Many conservation,  navigation, and flood control districts
have been created in this State by statutes applying to part or all
of certain specific rivers or specific counties within particular
water-sheds.     These separate acts contain many special provi-
sions which apply only to the particular   river or district involved.
Certain of these acts are set out in notes following Article    8197f.
V.A.C.S.,   under the title “Water Supply and Control,” with the
description   “The following laws, though passed as general laws,
are in fact special acts relating to particular   conservation and
reclamation    districts.’
Hop. Rogers   Kelley,   page 4    (V-1171)



          The act creating the Lower Nueces River Water Supply
District itself has special provisions     relating to the power to
“acquire water rights theretofore      granted by the State of Texas
to cities or districts   situatdd wholly or partly within the district
or outside the district under terms to be negotiated between the
district and any such city ~ O *” (Acts 51st Leg,, R.S. 1949, ch.
159, p* 326, Sec. 12). It would hardly be contended that this act
or this section of the act regulates    the affairs of cities or is
otherwise condemned by Article III, Section 56, as a “local” or
 “‘special law.”

         Although limited to certain rivers and certain areas
these   acts and their special provisions  have been upheld by the
Courts of our State as treating a subject,.matter   of general pub-
lic interest and therefore not ‘“local or special” within the mean-
ing of Article 111, Section 56.

         In Lower Colorado River Authority v. McCrgw, 125 Tax.
268, 83 S.W.Zd 629 (1935), a bill which established    the Lower
Colorado River Authority, was before the Court.       It was there
contended that Section 16 of that act, which exempts the bonds
of the Authority from taxation by the State, any municipal cor-
peratien, county, or other political subdivision,   “is unconstitu-
tional and void because it violates section 56 of article III of
our state Constitution.”  In overruling  this contention the Court
stated:

         “In our opinion. Section 16 of this Act is not vi-
   olative of the provision of the Constitution just cited.
   In the first place, it is settled th~at a statute is not
   local or special, within the meaning of this constitu-
   tional provision,   even though its enforcement     is con-
   fined to a restricted   area, if persons or things through-
   out the State are affected thereby, or if it operates up-
   on a subject that the people at large are interested       in.
   Stephensen v. Wood, 119 Tex, 564, 34 S.W.2d 246. An
   examination    of this act convinces us that it operates
   upon a subject that the state at large is interested      in.
        ”
    . aD

         This same holding is to be found in Lower Neches Valley
Authority v. Mann, 140 Tex. 294, 167 S. vV.2dm43)         .   Th’ere
are other Texas cases in which the courts have held that when
the subject of a bill is a matter of general public interest.   the
bill is not a special or local law within the meaning of Article
  ,




Hon. Rogers     Kelley.   page 5    (V-1171)



III, Section 56.’

         Based upon the holdings in these cases, it would appear
that even though House Bill No. 25 deals solely with the Nueces
River and its tributaries   and not with any other river in the
State of Texas, it is not a local bill since the subject regulated
is one in which the public at large is vitally interested.    This,
upon the basis that if the public, generally,   is interested in the
authority to construct dams and conserve,      protect, and regulate
waters, it is also interested  in any limitation upon this author-
ity.

         If the provisions   of House Bill No. 25 had been enacted
as part of the original act creating the Lower Nueces District,
it is doubtful if any question could be successfully   raised as to
its validity.   In our opinion, such provisions  are no less valid
because of their separate and subsequent enactment.

          We think the situations here presented is analogous to
the proposition before the Supreme Court in Stephensen v.
Wood, 119 Tex. 564, 34 S.W.2d 246 (1931), wherein the vaIiaity
ZfYflsfishing law was challenged on the ground that it was a local
or special law applying to a limited area of waters and was not
advertised    for 30 days as required by Article III, Section 57.
The Court upheld the act as a general law, saying:

            “The fish in the streams    and coastal waters of
      Texas are the property of the state, and no person
      has any vested property right therein.       Further-
      more, the preservation     of the wild game life of the
      state, including the fish in its streams     and coastal
      waters, is a matter in which the people generally
      over the state are interested.     It follows that the
      legislation  here under attack is of general public
      concern.

            “It seems to be contended by Stephensen that
      the instant law is local or special within the mean-
      ing of the above-quoted   provisions   of our state Con-
      stitution because its enforcement    is restricted  to a




    l/  Reed v. Rogan, 94 Tex. 177, 59 S.W. 255 (1900); Stephen-
se<v.   Wood, 119 Tex. 564, 34 S.W.2d 246 (Corn. App. 1931); Mc-
gee Irrigating Ditch Co. v. Hutton, 85 Tex. 587, 22 S.W, 967
(1893); Handy v. Johnson, 51 F.2d 809 (E.D. Tex. 1931).
,Hon. Rogers   Kelley,   page 6      (V-1171)



   particular   locality, and does not include all coast-
   al waters.    This contention is utterly untenable.
   It is the settled law in this state that a statute is
   not local or special within the meaning of sections
   56 and 57 of article 3 of our state Constitution,
   even though its enforcement        be restricted to a
   particular   locality,   if persons or things through-
   out the state are affected thereby, or if it operates
   upon a subject in which the people at large are in-
   terested.   Clark v. Finley, 93 Tex. 171, 54 S.W. 343,
   345; Reed v. Rogan, 94 Tex. 177, 59 S.W. 255, 257:
   Logan v. State, 54 Tex. Cr. R. 74, 111 S.W. 1028,
   1029.   The mere fact that the statuta- only mpe,r*.
   ates in certain counties of the state does not make
   it a local or special law. Likewise the mere fact
   that this law only operates in the coastal waters of
   certam counties, and does not operate in the coasf-
   al waters of other counties, does not make It a local
   or special law,”       (emphasis ours)

        In view of these authorities, it is our opinion that
House Bill No. 25, applying as it does to the Nueces River
and its tributaries, treats with a subject, matter of general
public concern and is not a local or special act, within the
meaning of Article III, Section 56.

          Concerning the second question, it will be seen that
House Bill No. 25 does not, on its face, in any way concern the
right of eminent domain.     However, the indirect result of the
application of the bill might restrict the right of eminent do-
main which was granted by the Legislature       to the Lower Nueces
District.    This, although the primary application of the bill is
upon the State Board of Water Engineers.       The question thus
presented is, conceding this to be some impairment       or some
limitation upon the district’s   right of eminent domain, is it a
prohibited limitation?

          It is well settled that the right of eminent domain is a
 sovereign    right which exists in the State.      The right, being a
 sovereign    right of the State, may be exercised        solely by the
 Legislature    in the first instance.    1 Nichols, Eminent Domain
 18 (3rd Ed. 1950).    The right of eminent domain, being a right
 inherent in sovereignty,     constitutional    provisions    concerning
 eminent domain are said to recognize,          limit, or regulate this
 right rather than to confer it. 29 C. J.S. 781, Eminent Domain,
 Section 3. Thi‘s sovereign      power to take private property for
 public use cannot be surrendered,         alienated, or contracted
 away, nor can the Legislature       bind itself or its successors       not
                                                                        .




Hon. Rogers    Kelley,   page 7     (V-1171)



to exercise  it. Any attempt so to do wguid be invalid.      Hermaw
v. Board of Park Commissioners,       200 Iowa 116, 206 N.W. 35
              J s 78~ K mment
v9L5) ; 29 c OS0            .     Domain, Sec. 4. This ruie against
impairment    of a so&reign   right is likewise applicable to any at-
tempt on the pa-t of the Legislature     to impair the right of emi-
nent domain.    As stated in Trustees    of Phillips Exeter Academy
v. Exeter,  90 N.H. 472, 11 A.2d 5bY (1940):

         “As attributes of this sovereignty,      it is recog-
   nized th&t among the powers essential        to the main-
   tenance of government which cannot ‘pe alienated or
   impaired,    three important ones are the poiice po->:er,
   taxation and eminent domain.       That tte Constitution
   recognizes    them either expressiy     or by necessary      im-
   plication does not signify their non-existence         in the
   pre-constitutional   life of the state.   , . .”

        These expressions    and rules seem to form the basis for
a contention that the right of eminent domain may not be impaired
by the Legislature  even to the extent of enacting a statute condi-
tioning the right previously  granted to a water supply district,
upon an affirmative   vote of a majority of the people to be sub-
jeCteJ to a loss of property by the exercise   of the power.   The
law, however,   seems to be to the contrary.   It is well stated in
Randolph, The Law of Eminent Domain, pa 94 (li94j:

         “There is no objection to condition the ex-
   ercise of the eminent domain upon the action of
   private persons.    Thus, the petition of persons
   within a defined class is often made the basis of
   proceedings   to lay out a highway,   The construe -
   tion of a public undertakin,g may be conditioned on
   the assent of a certain proportion of property own-
   ers affected, or upon the assent of a majority of
   the electors  within a county,”

        A similar   statement     is found in Detroit Int, Bridge Co,
va American   Seed Company,        249 Mich, zB9, 228 N.W, 79 (1930)
where It 1s staCFd:

         “As eminent domain is an attribute of sover-
   eignty the Legislature  could have imposed any con-
   ditions it pleased upon its exercise.  c ~ **

There are cases from other jurisdictions   in which the right of
eminent domain is specifically  conditioned upon a vote of the
people to be affected thereby or by a vote of the people compos-
Hon. Rogers   Kelley,   page 8     (V-1171)



                                                   2
ing the entity to which the right was granted.

        It thus seems to be well settled that when the Legisla-
ture grants the right of eminent domain, that body may condi-
tion the right upon a vote of the people to be affected by the
use of the granted right.   In House Bill No. 283. Acts 51st Leg.,
R.S. 1949, ch. 159, p* 326, the Legislature  created the Lower
Nneces River Water Supply District and granted it the right of
eminent domain, as follows:

         “The District shall have the authority to ac-
   quire all property real or personal which within
   the discretion    of the board of directors     is needed
   in accomplishing      the objectives   of the District and
   to facilitate  the requisition    of property it shall have
   all the powers of eminent domain available to water
   control and improvement        districts   under the general
   law.”

The Legislature,   having been the source of the original grant of
the power of eminent domain, that body may, under the law, con-
dition the right upon an affirmative vote of the people to be af-
fected.

         This opinion is limited solely to the question of the con-
stitutionality of House Bill No. 25. The question of whether pub-
lic interest calls for the enactment or rejection of this bill is a
matter wholly within the discretion    of the Legislature, and no
opinion thereon is intended or to be inferred from the discussion
above ~

                            SUMMARY

         House Bill No. No. 25 prohibiting the Board of Water
   Engineers from issuing a permit for the building of any
   dam on the Nueces River or its tributaries     without the
   consent of a majority of the taxpaying voters in any city
   which may be inundated by the building of a dam, is con-
   stitutional, and is not a local or special law within-the pro-
   hibitions of Article III, Set, 56, Constitution of Texas.   The




   2/  Hamilton G. & C, Traction Co, va Parrish,    67 Ohio St. 181,
65 N,E, 1011 (1902); City of Albuquerque v; Huning, 29 N.M. 590,
225 F. 580 (1924); People v, Fort Jervis, 100 N.Y, 283 (1885);
Noonan Y, County of Hudson, 52 N.J.L, 398 (1890); Mills, Emi-
nent Domain, p0 179 (2nd Ed. 1888),
.     .




    Hon. Rogers     Kelley.   page 9   (V-1171)




          bill does not impair the sovereign   right of eminent
          domain.   This opinion relates solely to the question
          of the constitutionality of House Bill No. 25, and not
          to the question of whether the public interest calls
          for the adoption or rejection of the bill, this being a
          matter wholly within the discretion    of the Legisla-
          ture.

                                                  Yours   very truly,

    APPROVED:                                     PRICE DANIEL
                                                  Attorney General
    Charles D. Mathews
    First Assistant
                                                  By J$L&+LJ
    Everett Hutchinson
    Executive Assistant                              E. Jacobson
                                                       Assistant
    Price Daniel
    Attorney General




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