Untitled Texas Attorney General Opinion

.~ . .- E3 GENERAL GRRALD C. MANN AUSTTN 11.Tpxas xm Honorable A. E. Hickerson County Auditor Montgomery County Conroe, Texas Dear Sir: Opinion No. O-2517 Re: Bas the commissioners court authority to issue a franchise to nloonl telephone company operating outside the City of Conroe in Montgomery County? Your recent request for an opinion of this depart- ment on the above stated question has been received. We quote from your letter as follows: "Has the Commissioners 1 Court authority to issue a franohise to a local telephone company operating out- side the City of Conroe in Montgomery County. If so, what Is the limit on the charge for this particular service." Articles 1416 end 1417, Vernon's Annotated Civil Statutes read as follows: "Ad. 1416. Corporations created for the purpose of constructing and maintaining magnetic telegraph lines, are authorized to 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 manner as not to incommode the public in the use of such roads, streets end waters. "Art. 1417. They may also enter upon any Lands owned by private persons or by a corporation, in fee or less eUtate, for the purpose of making preliminary surveys and examinations with a view to the erection of any telegraph line, and from time to time appropriate so much of said lands as may be neoessary to erect such poles, piers, abutments, wires and other necessary fix- tures for a magnetic telegraph, and to make such changes of location of any part of said lines as may fromtime to time be deemed necessary, and shall have a right of Honorable E. A. Bickerson, Page 2, O-2517 access to construct said line, and when erected, from time to time as may be required to repair the same, and shall have the right of eminent domain to obtain the right of way and condemn lands for the use of the corporation." "&I agency to whom the state has not delegated the ~ power-cannot grant a franchise." Corpus Juris, Vol. 26% page 1027. We quote from Corpus Juris, Vol. 62, page 29, as follows: "A telegraph or telephone company cannot occupy or use public streets or highways without legislative authority granted either directly or indirectly, and cannot exist by implication merely. The power to grant such authority rests in congress as to highways which are post roads; as to other streets and highways, the power rests ultimately in the state, and in municipal- ities to which the state delegates its power." We quote from Texas Jurisprudence, Vol. 40, page 407, as follows: "Being public utilities, telegraph and telephone companies are subject to regulation in the publiointerest. While this right of regulation is one of the inherent powers of the State and its subordinate agencies, yet, as mentioned in another article of this work, in assent- ing to the Federal Constitution the several states surrendered to the national government their powers over interestate commerce. Since it is settled law that the transmission of intelligence from one state to another constitutes interstate commerce, it results that tele- graph and telephone companies may be subject to regulation by three different agencies; the United States, the Stats and the inferior agencies, such as municipal corporations, to whom the State has delegated regulatory power. "The regulation of telegraph and telephone companies was for many years wholly in the hands of the several state governments. But in 1910 the Federal Government assumed jurisdiction of such corporations, in so far as their interstate and foreign activities are concerned and state control is therefore definitely limited to intrastate matters...." We further quote from Texas Jurisprudence, Vol. 40, pages 413, 414 and 415 as follows: "The statute that authorizes telegraph and telephone .- pl .- - . - Honorable E. A. Bickerson, Page 3, O-2512 companies to make use of 'any of the public roads, streets and waters of the State' does not in,terma make any distinction between telephone companies with respect to the character of service rendered - whether local or long distanoe. But it seems that there is a very significant distinction, in so far as the regulatory rights of muhioipal corporations are concerned. In the case of telegraph companies and long diatanae telephone companies a city, town or village may make reasonable rules and regulations in respect of the location of the line, the 'kinds of poles that may be used and the height at which the wires may be strung; but it has no right whatsoever to deny to such corporations the use of its streets, at least in so far as out-of-town business is oon- oerned; as to such business the right to use the streets is absolute. "But the situation seems to be wholly different with respect to local telephone companies. Such corporations have no absblute right to use the streets, and can do so only with the consent of the municipal authorities. This consent is commonly manifested by the grant of a.franohise which may fix the rates to be charged for telephone service and set forth the general conditions under which the company may transact its business...." With reference to Article 1416, supra, we quote from Texas Jurisprudence, Vol. 40, page 368, as follows: 9Vhile it seems probably that the Legislature did not have telephone oompanies in mind at-the time it enacted this statute, the courts have held that the term tmagnetio telegraph lines' is broad enough to include telephone lines. Accordingly it is now settled law that, with an exception hereinafter noticed, tele- phone companies are as much entitled to take advantage of the enaotment as telegraph oompsnies. It will be noted, however, that the grant is confined to oorpora- tiona only, and this obviously means that neither a co-partnership nor an individual is entitled to its benefits, in the absence of special authorization." The general rule governing powers and limitations of the county commissioners!. court, as set out by the Supreme Court in Commissioners' tiourt vs. Wallace, 15 SW 2d 535, reads in part as follows; "The commissioners* court is a creature of the State Constitution, and its powers are limited and controlled by the Constitution and the laws as passed -, -. - Honorable E. A. Hlokerson, Page 4, - O-2517 by the Legislature. Art. 5, Sec. 18, Constitution of Texas; Baldwin vs. Travis County, 88 SW 480; Seward vs. Falls County, 246 SW 728; nland vs. Orr, 39 SW 558." "The legislative department of the government is a source of the grant of a franohise, and there must be a certain grantee. The Legislature, unless constitutionally inhibited, may exercise its authority by direct legislation, or through agencies duly established having power for that purpose." Texas Jurisprudence, Vol. 19, page 879. It is a well established rule that the commissioners* court may exercise only those powers specifically designated by the Constitution or the statutes or those powers necessarily implied. The fact that a franchise is a very special privilege given only by a direct legislative grant or by specifically designated agency, we must reach the conclusion that the Legislature has not designated the county commissioners' court as an agency with the right and power to grant a franchise. In view of the foregoing authorities, you are respectfully advised that is the opinion of this department that the commissioners 1 court does not have the power or authority to grant a franchise to a local telephone company operating outside the city of Conroe in Montgomery County. Trusting that we have fully answered your inquiry, we are Very truly yours ATTORNEY GEWERAL OF TEXAS BB s/ Ardell Williams APPROVED JULY 15, 1940 - s/ Grover Sellers Ardell Williams FIRST ASSISTANT Assistant ATTORNEY GENERAL APPROVED OPINION COMMITTEE By BWB, Chairman AW:AW/cg