City of Mason v. West Texas Utilities Co.

Mr. Justice Sharp,

delivered the opinion of the Court.

The City of Mason filed this suit against the West Texas Utilities Company for a mandatory injunction to compel compliance with an ordinance of the city requiring the West Texas Utilities Company to remove all poles, wires, transformers, conduits, and other property used by it in, upon, under, across, and along the public streets and alleys within the City of Mason. The case was tried before the court without a jury, and the trial court entered judgment in favor of the City of Mason. An appeal was taken to the Court of Civil Appeals, and that court reversed the judgment of the trial court and rendered judgment that the West Texas Utilities Company had the right to maintain its poles and lines in the City of Mason, without the city’s consent, for a period of ten years after November 13, 1945, the date of the city’s incorporation. 229 S. W. 2d 404.

In 1925 the Commissioner’s Court of Mason County granted the respondent a franchise to operate and maintain its lines for conducting electric current and supplying light, heat, and power to cities and towns in Mason County, and gave it an easement over and along public county roads and highways, and upon and across streets, alleys, sidewalks, and public grounds of unincorporated towns. Such franchise was to run for a period of fifty years from October 13, 1925. Respondent accepted the terms of the franchise, and built its lines into the City of Mason in 1926. Mason was incorporated November 13, 1945, and in 1948 constructed its' own electric power system.

This case involves the construction of House Bill 393, Chapter 228, Acts 51st Legislature, 1949, now Article 1436a, Vernon’s Annotated Civil Statutes.

*21It is of primary importance in construing a statute to ascertain the purpose for which the statute was enacted. Unquestionably this act was passed to give relief to utility companies from the consequences resulting from the two recent decisions of this Court in State ex rel. City of Jasper v. Gulf States Utilities Company, 144 Texas 184, 189 S. W. 2d 693, and Incorporated Town of Hempstead v. Gulf States Utilities Company, 146 Texas 250, 206 S. W. 2d 227. Prior to those decisions it was the opinion of many that the commissioners’ courts of counties in this state had the authority to permit the use of the streets and alleys of unincorporated towns by utility companies in the conduct of their business. It is undisputed that some utility companies, including respondent, acting under this belief, and in good faith, invested considerable sums of money in unincorported towns, and that the two decisions mentioned above caused them great losses in their investments. The history of the enactment of the statute under consideration clearly shows that the very purpose of its enactment was to afford relief to such utility companies for the losses resulting from the effect of the two decisions cited above.

It is agreed that under the law as decided in the Jasper and Hempstead cases, supra, the City of Mason had the right to order respondent to remove its poles and lines from its streets and alleys, prior to the enactment of Article 1436a. It is also agreed that as to towns incorporated after the enactment of Article 1436a, the utility companies affected would have ten years after the date of incorporation of any such town within which to operate their business therein without the consent of such town. The parties disagree over the question whether Article 1436a should be construed to confer the right on utility companies to maintain their previously built lines in cities incorporated before the enactment of Article 1436a, without the consent of such cities, for a period of ten years from and after the date of incorporation of any such city.

Two bills were introduced, one in the Senate and the other in the House. The House and the Senate were unable to agree on a bill. On account of the disagreement, the bill was referred to a free conference committee, where the differences were adjusted, and the bill was finally passed by both branches of the Legislature, and was approved by the Governor; The record shows that the bill had been radically amended in several particulars before its final passage, and that it undertakes to control several classes of utility companies; and it is obvious that *22the language used in expressing the intention of the Legislature is not entirely clear.

The record shows that at the time the Legislature was considering Senate Bill No. 205 and House Bill No. 393, the Governor addressed a special message to the Legislature on this very question, and submitted the two bills as emergency matters for its consideration. In that message the attention of the Legislature was called to the importance of the question and that immediate relief should be given companies affected by the two decisions mentioned above. We quote from the message as follows:

“Austin, Texas, March 9, 1949.
“To the Members of the 51st Legislature:
“The continued expansion of facilities for the distribution of electric light and power in rural areas of Texas is of great importance. All of us know that many electric lines have been built along the right-of-way of state highways and county roads. Many thousands of miles of lines have been so constructed and built by rural electric cooperatives and other utilities engaged in the distribution of electric power. These lines were built in good faith under franchises granted by the various Commissioners’ Courts of Texas, and they provide the means of getting electric light and power to many small towns and rural communities.
“In what are known as the Hempstead and Jasper cases, the Supreme Court of Texas' has held that the Commissioners’ Courts had no authority to grant such franchises. The result of this decision is that all such lines constructed under county franchises are now illegally on the right-of-way of such roads and highways. The expense of moving them would be prohibitive and in many ratal areas and unincorporated towns the people cannot enjoy the benefits of electric service unless the lines are built along the edge of the right-of-way of highways and county roads.” (Emphasis ours.)

This act deals with two classes of utility companies, and the restrictions and privileges expressed therein are not applicable to both alike. That part of the act which deals with the rights of respondent, and whose rights are similar to those of the Gulf States Utilities Company in the two cases cited above, is involved in this suit.

In order to show the intention of the Legislature in enacting this law, we copy from the statute the following:

*23The caption of the act reads as follows: “An Act to facilitate and encourage the distribution of electric energy to the inhabitants of the small towns, villages and rural areas of the State of Texas by providing that lines for the transmission and transportation of electric energy may be constructed, erected and maintained on the right-of-way of roads and highways outside the corporate limits of cities and towns and providing that such lines may be constructed, erected and maintained within the corporate limits of a city or town with the consent and under the direction of its governing body; providing that where such lines are built into an unincorporated town, which thereafter becomes an incorporated town, the corporation owning such lines shall have the right to extend, operate and maintain its lines in said town for a period of ten years after the date of such incorporation; providing adequate standards of construction for the safety of the public; repealing all laws and parts of laws in conflict herewith; containing the severability clause; and declaring an emergency.” (Emphasis ours.)

Section 1, among others, contains the following provision:

“In the event a State highway or county road on which lines have been built passes through or into an unincorporated city or town, which thereafter becomes an incorporated city or town, the corporation owning such lines shall continue to have the right to build, maintain cmd operate its lines along, across, upon and over the roads and streets within the corporate limits of such city or town for a period of ten (10) years from and after the date of such incorporation, but thereafter only with the consent of the governing body of such city or town, but this provision shall not be construed as prohibiting such city or town from levying taxes and such special charges for the use of the streets as are authorized by Article 7060, Revised Statutes of the State of Texas; and the governing body of such city or town may require any such corporation, at its own expense, to relocate 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 and lines along the right-of-way of such street or streets.” (Emphasis ours.)

Section 4 reads: “The fact that since the beginning of the electric power and light business in this State the distribution of electric energy to areas outside of the limits of incorporated cities has been based on the legal concept that the Commissioners Courts of this State had the authority to grant franchises for the use of the roads and highways; and the further fact that *24the Supreme Court has held that Commissioners Courts have no such authority; and the fact that, under such decision, there is no agency authorized to permit electric lines to be built along the edge of the right-of-way of highways and public roads, or to authorize the maintenance and operation of lines that have been so built under county franchises, thus making it extremely difficult, if not impossible in many cases, to finance the extension of existing lines, or to build new lines, * * * creates an emergency and an imperative public necessity * * *, and it is so enacted.” (Emphasis ours.)

The foregoing provisions of the act apply to corporations like respondent and the one involved in the Jasper and Hemp-stead cases.

Within recent years certain home rule cities have been permitted to own, maintain, and operate rural electrification systems. Some of those systems supply electric energy and lights to incorporated and unincorporated cities, school districts, and large rural areas. Some of the lines pass through towns and school districts, and the taxing authorities of the towns and school districts undertook to levy taxes on them. The owners of the corporations claimed that such property owned, maintained, and operated by them was held for public purposes, and was exempt from taxation. This Court rendered an opinion on January 17, 1945, in the case of A. & M. Consolidated Independent School District v. City of Bryan, 143 Texas 348, 184 S. W. 2d 914, and held that the electric lines owned by a city outside of its limits and within an independent school district were exempt from ad valorem taxation by such district. This decision raised an important question, and evidently the Legislature intended by the enactment of certain provisions of the act to protect a town or city through which another city wanted to extend its electrical lines, and place some restrictions thereon.

The bill was amended in many respects, which throws considerable light on what the Legislature wanted to accomplish. The caption of the act was also amended, so as to read as follows : “* * * providing that where such lines are built into an unincorported town, which thereafter becomes an incorporated town, the corporation oivning such lines shall have the right to extend, operate and maintain its lines in said town for a period of ten years after the date of such incorporation; * * (Emphasis ours.)

The following provision, as well as others, was deleted by the *25free conference committee from Section 1 of the act under consideration : “Nothing herein shall be construed as granting the right to such corporation to maintain existing lines in any area, which is included within the corporate limits of a city or town prior to the effective date of this Act, without the consent of the governing body of such city or town.” (Emphasis ours.) The restriction contained in Section 1 applicable to “such cor-portion” was removed and placed in Section la, and applied to “municipal corporation.” It is very significant that this restriction was removed from respondent and like corporations and placed upon municipal corporations. That the Legislature intended to deal more liberally with companies like respondent, than with municipal corporations owning and operating lines in towns covered by the statute, is plainly shown by the statute as finally enacted.

The following is quoted from Section la of the act: “Any incorporated city or town in this State which owns and operates an electric generating plant or operates transmission lines and/ or distribution system or systems 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 another incorporated city or town; and to maintain and operate existing lines located on such highways and county roads, and to erect, maintain and operate lines over, across and along the streets, alleys and other public propety in any other incorporated city or town in this State with the acquiescence or consent and under the regulations of the governing body of such city or town. * * * In the event a State highway or county road on which lines have been built passes through or into an unincorporated city or town, which thereafter becomes an incorporated city or town, the municipal corporation owning such lines shall continue to have the right to build, maintain and operate its lines along, across, upon and over the roads and streets within the corporate limits of such city or town for a period of ten (10) years from and after the date of such incorporation, but thereafter only with the consent of the governing body of such city or town; and the governing body of such city or town may require the municipal corporation owning such lines, at its own expense, to relocate its poles and lines so as to permit the widening or straightening of streets, by giving to the municipal corporation owning such lines thirty (30) days notice and specifying the new location for such poles and lines along the right-of-way of such street or streets.” (Emphasis ours.)

*26It is also very significant that Section la of the body of the act contains the provision: “Nothing herein shall be construed as granting the right of such municipal corporation to maintain existing lines in any area, which is included within the corporate limits of another city or town prior to the effective date of this act, without the consent of the governing body of such other city or town.” (Emphasis ours.) The foregoing provisions of the act were passed to apply to companies owned by municipal corporations and to meet the situation created by the decision of this Court in A. & M. Consolidated Independent School District v. City of Bryan, 143 Texas 348, 184 S. W. 2d 914.

The fundamental rule controlling the construction of a statute is to ascertain the intention of the Legislature expressed therein. That intention should be ascertained from the entire act, and not from isolated portions thereof. This Court has repeatedly held that the intention of the Legislature in enacting a law is the law itself; and hence the aim and object of construction is to ascertain and enforce the legislative intent, and not to defeat, nullify, or thwart it. 39 Tex. Jur., pp. 166, 167, Sec. 90; 50 Amer. Jur., p. 200, sec. 223; 59 C. J., p. 948, sec. 568. It is settled that the intention of the Legislature controls the language used in an act, and in construing such act the court is not necessarily confined to the literal meaning of the words used therein, and the intent rather than the strict letter of the act will control. 39 Tex. Jur., pp. 180, 181, sec. 95; 50 Amer. Jur., p. 232, sec. 240; 59 C. J., p. 964, sec. 593.

This Court, in Gilmore v. Waples, 108 Texas 167, 188 S. W. 1037, said: “Courts will not follow the letter of a statute when it leads away from the true intent and purpose of the Legislature and to conclusions inconsistent with the general purpose of the Act.”

In the recent case of Texas & N. O. Ry. Co. v. Railroad Commission of Texas, 145 Texas 541, 200 S. W. 2d 626, this Court, in construing the legislative act involved in that case, said that “whenever the legislative purpose is ascertained, the significance of words used may be restricted or enlarged in order to effectuate that purpose and to give the act the meaning which the lawmakers manifestly intended.”

This Court, in Brazos River Conservation and Reclamation District et al. v. E. P. Costello et al., 135 Texas 307, 143 S. W. 2d 577, 130 A. L. R. 1200, said: “The dominant rule controlling the construction of a statute is to ascertain the intention of the *27Legislature expressed therein. An Act should be given a fair and sensible construction, in order to carry out the purposes for which it was enacted, and not be construed in such manner as to nullify or defeat its purposes.”

The City of Mason is not a home rule city, and whatever right it has to control its streets is derived from the Legislature. The State, acting through the Legislature, has absolute control over the streets of municipal corporations, and, subject to constitutional provisions, the Legislature may enlarge, contract, or abrogate, at its pleasure, the scope of control exercised by such a city over its streets. Payne v. Massey, 145 Texas 237, 196 S. W. 2d 493; 39 Tex. Jur., p. 595, sec. 57; 9 Tex. Jur., Ten Year Supp., p. 10, sec. 57; 25 Amer. Jur., p. 545, sec. 254; 30 Tex. Jur., p. 97, sec. 46; 7 Tex. Jur., Ten Year Supp., p. 389, sec. 46; 37 Amer. Jur., p. 720, sec. 111.

Unquestionably the Legislature has the authority to limit the power of cities to control their streets as delegated by Article 1016. That was expressly done by the enactment of Articles 1416 and 1435, and also by the enactment of Article 1436a. Under the law the City of Mason had the right to construct its own electric system and operate it in competition with that of respondent. City of Vernon et al. v. Montgomery, 265 S. W. 188, writ refused; Nalle v. City of Austin, 85 Texas 520, 22 S. W. 668, Id. 960. But the City of Mason is not authorized to create a monopoly by its own acts, for this is forbidden by Section 26 of Article I of the Constitution. City of Brenham v. Brenham Water Co., 67 Texas 542, 4 S. W. 143; Hartford Fire Ins. Co. v. City of Houston, 102 Texas 317, 116 S. W. 36; City of Vernon et al. v. Montgomery, supra. Article 1436a in no way impairs the right of the bondholders to enforce their rights or claims against the system installed by the City of Mason. Those who invested in the system did so with the knowledge that the City of Mason could not create a monopoly, and that the Legislature, if it saw fit, was authorized to pass laws regulating the use of its streets which would be in conflict with the ordinances of the city. Therefore they ran that risk when they made their investment.

Article 1436a was passed for the purpose of curing, or remedying to a certain extent, the conditions caused by the two decisions mentioned above, and also to meet the conditions created by the decision in A. & M. Consolidated Independent School District v. City of Bryan, 143 Texas 348, 184 S. W. 2d 914. The message of the Governor and the act itself refer to the results *28caused by the two decisions above mentioned and the losses sustained by the companies as a consequence thereof. The clear purpose for the enactment of the law was to permit the company involved in this case and other companies similarly situated to operate their lines in such unincorporated towns for a period of ten years from and after the dates of their incorporation ; this privilege materially reducing the losses to be sustained.

It would be a grave injustice to ascribe to the Legislature in the passage of this act an intention not to give the companies for whose benefit it was passed some relief. One of the purposes of the act was to cure or remedy a situation created by the two decisions holding that the commissioners’ court of a county did not have the power to permit companies to use the streets and alleys of unincorporated towns in the conduct of their business. The Legislature in the exercise of its power gave the companies whose lines extended through unincorporated towns, which later became incorporated towns, “the right to build, maintain and operate its lines along, across, upon and over the roads and streets within the corporate limits of such city or town for a period of (10) years from and after the date of such incorporation, but thereafter only with the consent of the governing body of such city or town.” (Emphasis ours.)

It is quite evident that the statute was enacted for the specific purpose of giving some relief to those companies which had in good faith constructed, maintained, and operated their lines in unincorporated towns under orders of the commissioners’ courts of the counties, and to give them the right to continue such operation of their lines in such towns for a period of ten years from and after the date of the incorporation of such towns.

The enactment of remedial or curative statutes constitutes a valid exercise of legislative power. It cannot be questioned that at the time respondent built its lines in the City of Mason, the Legislature had the authority to authorize it to do so. The Legislature may ratify anything it could have authorized in the first instance. Miller et al. v. State et al., 155 S. W. 2d 1012, writ refused; Hunt v. Atkinson, Tex. Com. of App., 18 S. W. 2d 594; Hunt County v. Raines County, 7 S. W. 2d 648; 39 Tex. Jur., p. 41, sec. 19; 8 Tex. Jur., Ten Year Supp., p. 794, 795, sec. 19.

The Legislature has passed many curative, remedial, and *29validating statutes. For example, it has passed acts validating bonds, city charters, and county boundaries. Also, the Legislature has passed many acts confirming the rights of purchasers of public lands, and validating the organization of drainage, improvement, and school districts. 39 Tex. Jur., p. 42, sec. 19; 8 Tex. Jur., Ten Year Supp., p. 794, sec. 19. The history of this character of legislation plainly shows the policy of the Legislature in dealing with situations like the one under consideration, and why it enacted Article 1436a.

If a statute is curative or remedial in its nature, the rule is generally applied that it be given the most comprehensive and liberal construction possible. It certainly should not be given a narrow, technical construction which would defeat the very purpose for which the statute was enacted. 39 Tex. Jur., pp. 273, 274, sec. 145; 59 C. J., p. 1106; sec. 657; 50 Amer. Jur., p. 415, sec. 392, and the cases cited from the many jurisdictions in support of the rule.

The Court of Civil Appeals correctly held that respondent had the authority under Article 1436a to maintain and operate its lines within the city limits of Mason for ten years after the incorporation of the city, and the judgment of the Court of Civil Appeals is affirmed.

Opinion delivered February 7, 1951.