Untitled Texas Attorney General Opinion

_ _.- _. . I ,, S&e,~~-78, ~~-45 and m5 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