*1 question, of that and decision consideration further Appeals jury. as misconduct question decide also Appeals is reversed of Civil Court judgment Court. to that remanded cause February 1951. delivered Opinion 21, 1951. Rehearing March overruled Company. Texas Utilities v. Mason West February Decided A-2752. No. April 4, 1951. Rehearing overruled Series, 273.) W., (237 S.
R. Lee, Mason, E. petitioner. for Appeals holding Court of Civil erred ordin- that the ance City Mason, ousting Utility Co., Texas West inoperative by declared Legislature, H.B. of the 51st 1436a, Article ment Statutes, Vernon’s in the absence of a clear state- evidencing legal purpose; refusing to construe grant said act against privilege, strictly grantee; state and in construing having application restrospective said act as language showing Legis- absence of a clear intent of lature to apply rights existing make the act at and vested prior passage. to its Co., State of Ref. Texas v. Humble Oil &
20 James, 707; Ins. Co. v. 143 2d Gulf 40, 169 S.W. Texas Corp., 966; J. M. Huber 2d v. State 185 S.W. Texas S.W. Angelo, Mason, Runge, Roscoe Snodgrass, of San Scott Harwell, L. all Wagstaff Alvis and E. Harwell, & staff, ag W Looney Moorhead, Everett L. Looney, Abilene, & Clark Austin, respondent. Moorhead, all of
R. Dean given Ap- H.B. 393 the Court of Civil construction impaired any way or affected vested and in no peals is correct Jasper City holders. v. Gulf petitioner or its bond 693; Co., 189 2d Tel. & 144 Texas S.W. Utilities States refused; Dallas, 636—error 30 Tex. S.W. v. Tel. Co. Jur., p. 97. *3 opinion of the the Court. delivered Sharp,
Mr. Justice against City this suit Texas of Mason filed West mandatory injunction compel Company for com- Utilities city requiring Texas pliance with an ordinance of the the West wires, transformers, poles, Company all to remove Utilities conduits, in, upon, under, across, property it and other used along alleys City public and within the of and streets jury, court without a and Mason. case was tried before the City judgment of in favor of Mason. trial court entered the An Appeals, appeal and that was taken Civil Court of judgment the trial court and rendered court reversed the of Company judgment Texas Utilities had the that West City Mason, poles in of maintain and lines without consent, 13, city’s period of ten after November for 1945, city’s incorporation. 229 2d 404. S. date W. County granted
In 1925 the Commissioner’s of Mason Court respondent the conducting franchise and maintain its lines for supplying light, heat, power
electric and current and gave County, and in and to cities towns Mason easement highways, upon over and roads and streets, alleys, sidewalks, public grounds and across incorporated un- Such franchise was to run for a
towns. fifty years 13, Respondent accepted from October 1925. the terms franchise, City its lines and built into the in Mason incorporated 13, 1945, Mason was November and in 1948 power system. own constructed its' 393, Chap- This case involves construction of House Bill 228, Legislature, 1949, 1436a, ter Acts 51st now Article Ver- Annotated non’s Civil Statutes.
21 construing primary importance in ascer- statute to It is of Unques- enacted. purpose the statute was tain the for which give utility companies tionably passed relief to this act was resulting consequences from the two recent decisions from the City Jasper ex rel. v. this Court in State Gulf States Utili- Incorporated Company, ties 144 Texas S. W. Company, Hempstead Town of v. States Utilities Gulf Texas 2d 227. Prior to those decisions it S. W.
opinion many of counties in the commissioners’ courts permit this state had the the use of the streets alleys by utility companies unincorporated towns undisputed utility conduct of their It that some business. including acting companies, respondent, belief, under this good faith, money invested considerable sums of in unincor- ported towns, mentioned and that the two decisions above great history caused them losses in their investments. The clearly under consideration shows enactment of statute very purpose afford relief to of its enactment was to resulting utility companies from the effect losses of the two cited decisions above. agreed Jasper
It is that under the law as decided Hempstead cases, supra, had the of Mason respondent poles order lines from its streets to remove its alleys, prior 1436a. It also to the enactment of Article agreed the enactment of that as to towns after companies 1436a, utility ten Article affected would have *4 years any incorporation after the date of of such town within of the consent which to their therein without business disagree parties question such town. over the whether The utility construed to confer the on Article 1436a should be companies previously their lines in cities in- to maintain built 1436a, of corporated enactment Article without before cities, period of ten from and after for a consent of such any city. incorporation of the date of introduced, and the other one Senate bills were Two agree were unable to House and the House. Senate The in on a bill. On disagreement, was referred of the bill account committee, where the differences were ad- a free conference finally passed by both branches of the justed, was and bill Governor; approved by the record Legislature, The and was radically par- amended several had been bill shows passage, to con- and that undertakes its final
ticulars before utility companies; and it is obvious that of classes several trol language Legislature expressing used in intention entirely is not clear. Legislature record shows at the time the was con-
sidering Senate Bill No. 205 and House Bill No. the Gov- special message Legislature ernor addressed on this very question, emergency and submitted the two as mat- bills message ters for its consideration. In that attention of importance question called and given companies that immediate relief should affected message quote two decisions mentioned above. We follows:
“Austin, Texas, March Legislature: “To the Members of the 51st expansion “The continued of facilities for the distribution of light power great electric portance. and in rural areas of Texas is of im- many
All of us know that electric lines have been built along right-of-way highways county of state roads. Many thousands of miles of lines have been so constructed and engaged cooperatives rural electric and other utilities power. good the distribution electric These lines were built in of granted by under the various Commissioners’ faith franchises Texas, they provide getting Courts the means of light power many small towns and rural communities. Hempstead Jasper cases, are known as the “In what Supreme Texas' has held that the Court Commissioners’ Courts grant had no The result franchises. county decision is that all such lines constructed under fran- illegally right-of-way are now chises on the such roads and expense highways. moving prohibitive them would be unincorporated many ratal areas and people towns the can- enjoy not electric service unless the lines are built benefits of edge right-of-way highways ours.) (Emphasis roads.” utility companies,
This act deals with two classes of and the privileges expressed applicable restrictions therein are not part rights to both alike. That of the act which deals with the rights respondent, are whose similar to those of the *5 Company above, States Utilities cited Gulf two cases involved in this suit. In order to show the intention of enact-
ing law, copy following: we from the statute the to facilitate “An Act follows: caption act reads as of the energy the inhabi- encourage electric of the distribution villages areas of the State towns, rural tants of small trans- transmission by providing lines for the that of Texas constructed, erected energy may portation be of electric highways outside right-of-way of roads on the maintained providing such that corporate towns and limits of cities and cor- constructed, erected and maintained within lines city and under porate consent or town with the limits governing body; providing where such that direction of its unincorporated town, be- lines are built into an thereafter corporation incorporated town, owning lines such comes an extend, operate lines in shall and maintain its have the period in- said town ten the date such for after corporation; providing adequate construction for standards of safety repealing parts public; of laws in all laws and containing severability clause; herewith; and de- conflict claring emergency.” (Emphasis ours.) among others, following provision:
Section contains “In highway the event road State or on which through passes unincorporated city have been built or into an town, town, or incorporated city which thereafter becomes an or corporation owning such lines shall continue to have build, upon along, across, maintain cmd its lines corporate over the roads and streets within the limits of city such or (10) years town ten from after the date incorporation, only such but with the con- thereafter sent governing body town, pro- but this prohibiting vision shall not be construed or town levying special charges taxes and such for the use of the streets as are authorized Article Revised Statutes of Texas; governing body State of and the of such may require any corporation, expense, at its own to re- poles widening locate ening permit straight- and lines so as to streets, by giving (30) thirty days to such specifying notice and poles new location for such and lines right-of-way (Emphasis of such street or streets.” ours.) Section reads: beginning fact “The that since the power light business in this State distribution energy of electric to areas outside of the limits of legal concept
cities has been based on the the Commission- grant ers Courts of this State had the franchises highways; for the use of the roads and and the further fact *6 24 have Supreme has held that Commissioners Courts Court that, decision, there authority; under such and
no such fact permit agency electric lines to be authorized to is no public roads, highways right-of-way and edge operation that have maintenance and or to authorize the extremely making county franchises, thus built under been so impossible many cases, extension difficult, to not finance if * * * lines, an emer- existing lines, new creates build of gency * * *, necessity imperative public and it is so en- and an ours.) (Emphasis acted.” foregoing apply corporations provisions
The of the act Jasper Hemp- respondent and like and the one involved stead cases. per- years cities have been
Within recent certain home rule sys- own, maintain, operate mitted to and rural electrification lights energy systems supply tems. Some of those districts, and incorporated unincorporated cities, school large through pass rural towns areas. of the lines Some taxing districts, school of the towns authorities levy The owners school districts undertook to taxes on them. owned, corporations property main- of the that such claimed tained, operated by public purposes, and held them was exempt opinion on an rendered taxation. This Court January 17, 1945, Inde- A. the case of & M. Consolidated pendent Bryan, 184 Texas School District v. by a S. and held that electric lines owned W. independent district outside of limits and school within exempt by This were district. from ad valorem taxation Legis- evidently important question, decision raised an provisions act lature intended the enactment of certain protect city through another wanted town or which lines, place thereon. extend restrictions its electrical some many respects, The con- bill was amended in which throws light accomplish. siderable on what wanted to amended, caption read as fol- act was also as to so “* * * providing into an lows : such lines are built where unincorported town, becomes an which thereafter town, corporation oivning such lines shall have extend, and maintain its lines in said town for ** (Em- incorporation; ten the date after phasis ours.) following others, provision, as was deleted well as act under con- from Section committee free conference granting “Nothing construed shall be : herein sideration area, any existing lines in maintain to city or town corporate of a limits is included within the *7 of Act, consent without the this of prior effective date to the ours.) (Emphasis city governing body or town.” of such the applicable “such cor- to in Section The restriction contained applied la, and placed in portion” removed and Section was very significant this restric- “municipal corporation.” It is corporations and respondent like and tion removed Legislature in- upon municipal corporations. the placed That respondent, companies liberally like with tended to deal more owning operating lines and municipal corporations than with statute, by by the statute plainly shown in towns covered the finally as enacted. “Any following act: quoted la of the
The from Section operates incorporated city or town in this which owns State generating operates an lines plant or transmission and/ erect, right system systems or distribution or shall have construct, across, over, under, upon operate maintain and lines along State, any highway county road in this ex- state or cept town; incorporated city within limits of another or existing high- operate to maintain and ways on such lines located county roads, erect, operate lines and to maintain over, along streets, public prop- alleys and across and other ety any city incorporated town in this with other or State acquiescence regulations or consent and under of * * * governing body city In such or town. the event State of highway passes or have road on lines been through town, unincorporated city or into an or which there- municipal city town, after cor- becomes or poration owning continue to have the such lines shall build, along, upon across, maintain and its lines corporate limits of over the roads and within such streets city or after (10) town for of ten from and only incorporation, date of such thereafter with the consent but governing town; governing body city of such or body municipal corpor- require such or town poles owning lines, expense, ation to relocate its such at its own permit widening straightening and lines as or so streets, owning by giving municipal corporation such thirty days specifying (30) location new notice poles right-of-way and lines of such street (Emphasis streets.” ours.) significant body very
It la of the is also Section construed provision: “Nothing shall be herein act contains the municipal granting to main- existing any area, cor- within the tain porate lines in which is included prior to the effective date limits of another act, governing body of of this without consent foregoing provisions ours.) (Emphasis other town.” passed companies apply act owned munici- were pal corporations and meet the created the de- situation Independent cision A. M. Consolidated School Court & City Bryan, v. Texas District 184 S. W. 2d controlling fundamental rule the construction Legislature expressed statute is to ascertain the intention of the therein. That intention entire should be ascertained from the act, and portions not from isolated thereof. has re This Court *8 peatedly Legislature enacting held that the intention of the in itself; a law object is the law and hence of con the aim legislative intent, struction is ascertain and enforce the defeat, nullify, 166, 167, Jur., pp. not or thwart it. 39 Tex. 90; Jur., 200, p. 223; J., 948, 50 p. Amer. sec. 59 C. sec. 568. Sec. It is settled intention controls the language construing act, used in an in the court act necessarily meaning not confined the literal of the words therein, used and the rather intent than strict letter of the Jur., pp. 180, 181, act will 95; control. 39 Tex. sec. 50 Amer. Jur., p. 232, 240; J., p. 964, sec. 59 593. C. sec. Court, This Waples, in 167, Gilmore v. 108 Texas 188 S. W. 1037, said: will “Courts follow not the letter of a when statute away it leads Legisla- from purpose the true intent and ture and general to conclusions purpose inconsistent with the the Act.” In the recent case Ry. of Texas & N. Co. v. Railroad O. Com- Texas, 541, mission of 626, Court, 145 Texas 200 W. 2d S. construing legislative case, act in that said that involved legislative significance “whenever purpose ascertained, of words enlarged used be restricted or in order effectuate purpose give meaning the act the which the law- manifestly makers intended.” Court,
This in Brazos River Conservation and Reclamation District al., et al. E. 307, v. P. Costello et Texas 143 135 S. W. 577, 2d 130 1200, controlling A. L. R. said: “The dominant rule the construction of a statute is to ascertain the intention of the
27 given a fair Legislature expressed An Act should therein. purposes carry out the construction, in order to sensible as manner enacted, construed and not be which it purposes.” nullify or defeat its city, and whatever City a home rule Mason is not Legislature. is derived it has to control its streets Legislature, con acting through absolute State, has and, subject to corporations, municipal trol over the streets of enlarge, con- Legislature may provisions, constitutional scope exercised tract, abrogate, of control pleasure, the at its 237, Massey, Texas by Payne 145 v. its streets. over Jur., 57; Ten 595, Tex. 493; Jur., p. 9 sec. 196 39 Tex. S. W. 254; 545, Jur., p. 30 57; sec. Supp., p. 10, Amer. 25 Year sec. 389, p. Supp., 46; Jur., Jur., 97, Ten Year p. 7 Tex. Tex. sec. 720, 46; Jur., p. sec. 111. sec. 37 Amer. limit Unquestionably Legislature has the delegated by power streets of cities to control their by enactment expressly 1016. That was done
Article Article 1435, the enactment Articles 1416 and and also to con City Mason had the 1436a. Under the law the competition with system struct its own electric Montgomery, 265 City respondent. et al. v. that of of Vernon 520, Austin, refused; City Texas writ Nalle v. S. W. City authorized Mason is not Id. But the S. W. acts, monopoly by is forbidden to create a own for this v. of Brenham Section 26 of Article I of the Constitution. 143; Co., Fire Hartford Brenham 67 Texas S. W. Water *9 36; City City Houston, 102 Texas S. W. Ins. Co. v. of way Montgomery, supra. 1436a in no Article Vernon et al. v. of rights or impairs right enforce their to the of the bondholders City Those against system by of Mason. installed claims the the knowledge the system did with the who invested in the so Legis monopoly, City a that the create Mason could not of regulating the lature, fit, pass laws if it was saw authorized ordinances with the use would be in conflict of its streets which they their they made city. that risk when Therefore ran investment. curing, purpose passed of was for the Article 1436a by extent, two
remedying caused the the conditions to a certain cre above, conditions to meet the and also decisions mentioned Independent by School in A. M. ated the decision & Consolidated The Bryan, 2d 914. City 184 S. W. District v. of 143 Texas results message refer to the the act itself of the Governor by losses caused two mentioned and the decisions above companies consequence clear sustained as a thereof. The purpose permit com- for law the enactment of the was similarly pany companies in situ- involved this case and other unincorporated operate a ated their in towns for such period incorpor- years of ten and after dates of their from reducing ; privilege materially be ation the losses to sustained. grave Legislature injustice
It would ascribe passage give in companies of this act intention not to passed purposes for whose benefit it was some relief. One of of remedy the act to cure two was situation created holding decisions did court of a that the commissioners’ power companies not permit have the to use the streets alleys unincorporated of in the of towns conduct their business. Legislature gave companies power exercise of through towns, unincorporated whose lines extended became which later towns, build, “the maintain upon along, across, its lines over the roads corporate streets within the limits such of period years incorpor- (10) date such of after of ation, only governing but with consent thereafter of body (Emphasis ours.) or town.” quite spe- It is evident that the statute enacted for the purpose giving cific companies had some relief to those good constructed, maintained, faith operated their lines unincorporated towns under orders of the commissioners’ counties, give courts and to them the to continue operation of their ten lines in towns for incorporation from and after date of such towns. The enactment of remedial or statutes constitutes curative legislative
a valid power. questioned exercise It cannot be respondent Mason, that at the time its lines in had to authorize it do so. Legislature may ratify anything have authorized could the first al., instance. Miller al. v. et State et 155 S. W. refused; writ Atkinson, App., Hunt v. Tex. Com. *10 594; S. 648; W. 2d County County, Hunt v. Raines 7 W. 2d S. Jur., 41, 794, 39 Tex. 19; Jur., Supp., p. sec. 8 Tex. Year p. Ten 795, sec. 19. passed curative, remedial, many
The and has validating passed acts example, it has validating For statutes. Legisla- Also, charters, bonds, boundaries. and purchasers confirming rights of many acts passed ture has drainage, organization validating of lands, and 19; Jur., 42, p. sec. Tex. improvement, and districts. school 794, history of this Supp., p. 19. The Jur., sec. Ten Year 8 Tex. Legis- policy of legislation plainly shows character of consider- dealing one under like the lature situations with ation, why it 1436a. and enacted Article nature, rule in its
If a remedial statute is curative or comprehensive and generally given applied most be given certainly possible. not be It should liberal construction very narrow, which would defeat technical construction Jur., pp. purpose Tex. was enacted. 39 for which the statute Jur., p. 273, 274, 145; 1106; 657; J., Amer. p. sec. sec. 59 C. many jurisdictions sec. and the cases cited from support of the rule. respondent correctly Appeals held that Court of Civil had the under Article 1436a to maintain after the its within for ten limits Mason incorporation city, judgment of the Court of Civil and the Appeals is affirmed.
Opinion February delivered 1951. joined by and Smith Justices Calvert Mr. Griffin, Justice Hickman, dissenting. and Chief Justice myself agree majority opinion I find unable to with the herein, following respectfully dissent for the reasons: Legisla- February 16, 1949, On introduced in the there was caption originally ture read as House Bill of this bill follows: encourage
“An distribution elec- Act to facilitate and energy towns, villages tric the inhabitants the small by providing rural for the areas of the Texas that lines State energy transportation may con- transmission and be of electric structed, right-of-way of roads erected and maintained on the highways corporate limits cities and towns outside providing constructed, erected that such lines corporate maintained within with limits of governing body; the providing consent under the direction of safety adequate construction for the standards of *11 30 parts in conflict here- public; repealing all of laws the laws and declaring containing clause; an
with; severability and emergency.” engaged corporations provided 1 Section of the bill right energy “shall have” to
the distribution of electric on, highways across, and construct and State their lines incorporated city roads, county “except an within the limits of town,” existing operate or located on such to maintain and lines highways county roads, and and erect and maintain lines on alleys incorporated “with the streets and cities or towns governing body consent and under city the direction of such providing safety regulations or for town.” After for lines, speci- construction of and their under such relocation following conditions, provisions, fied which contained the bill parties agreed both have to be crucial in this case: highway “In the on event a road which lines State or through town, passes unincorporated city have been built an or city town, incorporated which thereafter poration owning becomes the cor- such lines shall continue have build, along, across, upon maintain and its lines corporate over the roads and streets within limits of such city or town for a of ten after the date incorporation, only such but thereafter with consent of * * governing body or town
Paragraph following 1 of with the bill closed sentence: “Nothing granting herein be shall construed as existing any area, to maintain lines corporate included within prior limits of a Act, gov- eifective date of this without the consent of the erning body of such or town.” important Sections pur- the bill are not for the poses of this case. emergency clause, Section 4 contains an part which reads in as follows: beginning
“Sec. The fact power that since the of the electric light business in this state distribution of electric energy to areas outside of the limits of cities has legal been concept based on that the Commissioners’ Courts grant this State had the franchises for the use highways; the roads and further fact that Su- preme Court has held have no such Commissioners’ Courts authority; that, fact there is no under decision along the permit agency authorized to roads, highways edge right-of-way have been lines that operation of authorize the maintenance extremely making franchises, County thus under so built *12 cases, extension difficult, many finance the impossible in if not lines; there existing fact that lines, and the new build safety for the adequate is now construction no standard of towns, the fact public and small in the rural areas expansion of service that demands the impera- emergency rural and an areas of creates an the State requiring public necessity Rule bills tive the Constitutional suspended, days to be read on three in each House be several i$t [*] [*] Legislature 9, 1949, a On March sent to the the Governor
message submitting emergency matter. House Bill 393 as an message opinion copied His of the is in full in footnote Appeals (229 p. 406) Court of and it therefore Civil 2d at S.W. message Hempstead copied need not be here. refers to the Jasper cases, problem of the but makes no mention of the incorporated utility extension or cities maintenance of lines or towns. through process
House Bill 393 went of amendment dur- ing passage through Legislature. Repre- its In the House of sentatives, following clause: there was added to Section 1 the
“* * * provided, however, corporation has here- if such tofore built unincor- its distribution lines and facilities in an porated city good provisions of a town in faith and under the agreement franchise theretofore entered into with Commis- Court; operating sioners if dis- such system city tribution time Act be- or town at the right effective, upon payment of comes it shall have any charges city special under taxes levied or town Article 7060 such distribu- to continue to maintain and system necessary tion thereto until facilities incident agreement expiration contained in franchise date less, Court, years, (10) not- Commissioners or ten whichever withstanding have become the fact that such or town incorporated Act.” before the effective date of this Amendment.” known as “The James
This amendment was the Bill was Senate and clause was stricken This reported out The bill as referred to a conference committee. finally passed by of the conference committee and as both houses original sentence, contained neither stating expressly grant- that the act should not construed as ing right existing utility company to a to maintain within the passage incorporated limits of or town before town, of the act without the consent of such nor granted the House amendment which such a utility company caption under certain conditions. The bill following was amended so as to include the clause:
“* * * providing that where such lines are built into an un- incorporated town, which thereafter becomes town, corporation owning such lines shall have the extend, operate and maintain its lines in said for a * * *” of ten incorporation; after the date Other during amendments were also added to the bill *13 passage, they but relate to matters which I do not consider relevant to the decision approved of this case. The bill was became May 20, 1949, effective day present on one after the suit was filed in the district court. Respondent urges arriving meaning that in at the of House Bill the whole, statute should be construed a and I
agree that accepted this is an rule of it is construction. When applied case, however, my this opinion, in the it leads to con- clusion that purpose prospective— whole of the statute is that grant rights it is existing, intended to not theretofore and after the effective date of the Act. The first sentence of provides Section 1 corporations that affected “shall have” rights. certain provides The second sentence transmis- that sion according lines “shall be constructed” to certain standards. The third notify” provides corporations sentence that “shall such officials their intention to construct lines. having provides fourth public agency sentence jurisdiction “may require” corporation such to relocate its provisions obviously pros- lines. All of these are intended to be pective operation. in par- Then follows the sentence which the substantially agree determinative, ties part which in reads as follows:
“In the highway event a State or road on which lines passes through have unincorporated city been built into an or town, town, incorporated city which thereafter becomes an corporation owning such shall continue to have the right build, operate along, across, upon maintain and its lines corporate over the roads and streets within the limits of years (10) from and after of ten such or town for only with the incorporation, date of thereafter such but * * town, governing body consent portions my opinion, language, preceding In like the this operation. in Act, prospective 1 of the to be Section is intended time, grants right, a limited conditions and for It under certain granted time are rights which for the first to continue by preceding exercise The first sentence 1 of this Act. sentences Section right grants corporations to build affected of this section and streets in un- maintain on and roads their lines incorporated areas, exist under did theretofore not Jasper quoted Hempstead cases. The sentence above arise, apply after intended to to the situation which unincorporated passage Act, area in- becomes where intended, event, says corporated. In as it many words, continue “shall to have so right” build, newly lines in the maintain area from and the date of the for ten after incorporation. language ap- quoted used in the sentence is propriate only incorporation where an of a situation utility company rightfully after occurs or maintained has area; its lines in an lines, or maintain build decisions, only upon passage under our arose of House Moreover, event,” “passes,” Bill 393. the words “in the “becomes,” strongly which, Legis- also indicate a situation expects, may way, lature arise the future. Viewed legislative quoted logically the granting plan sentence fits into the rights, attaching obligations certain conditions and *14 exercise, providing their their continuance the event change passage that conditions should after the of the statute. incorporated As already passage to cities at the time of the statute, of the expressly provides the first sentence of Section 1 utility corporations may erect, that operate and maintain their governing “with lines the consent and under the of direction the body city Legislature of evidently or town.” The intended to cover a quoted different situation we have sentence above, beginning, meaning “in the event . . .” and the natural of the provision words apply used is that shall where a city incorporated town passage after the of the statute. caption expressly requires of Act the consent of the
governing body incorporated of an of an town before company may “constructed, electric be erected and maintained” provision as city To hold that the
within the limits of such town. right ten company for a of an to remain electric unincorporated incorporation in after an the date of such incorporated, a town refers which afterwards becomes Act, incorporated read passage at of the would the time manner, body caption into of the Act In conflict. like construct, gives erect, company Section an electric across, “over, under, upon and maintain and its lines along any State, except highway county with- State road in the incorporated (Emphasis in the limits town . . .” added.) expressly incorporated As to cities or towns the Act provides operated erected, maintained and such lines be only govern- “with the consent and under the direction of the ing body provisions plain or town.” These are unambiguous incorporated cover all cities or towns at passage time of provision dis- of the Act. Unless the under only incorporated cussion apply is held to towns after passage Act, provisions of the conflict in the we will have a construing duty Section 1 of the Act. It of the Courts the acts of the avoid to construe them so as to provisions only conflict in done of such acts. This can holding etc., event, in the case at bar the “In the etc. provisions . apply only incorporated ..” after the ef- to towns fective date of the Act. emergency (Section 4) refers of the Act nowhere clause any emergency arising by virtue of cities and towns then
incorporated, unincorporated at but refers to those which were Legis- conclusively built, time lines were that the shows give companies re- lature did not intend to body governing towns, except by permission main in such the Act. of such as out in 1 of Section or town set Section only limits of refers to “areas outside “along edge right-of-way and cities” and operation lines” roads,” maintenance and or to authorize “the etc., franchise, and to so under that have been lines. “standards of construction” of said plain ordinary and only in accord with Not is this view statute, I understand meaning language of the whole *15 accepted of construction agreement rules it, with but it is also operation, their prospective in presumed are to be that statutes deroga- privileges in granting or franchises and that statutes strictly rights construed. public tion of should be 35 construction, in Piedmont As to first of rules of these 519, Arlington 511, Ray, v. 50 Texas Life Insurance Co. this said: Court always held to
“It is a rule are well-settled that statutes contrary prospectively, a is evi- unless construction language.” dently required by plain unequivocal their language Similar & Refin- was used in v. Humble Oil State ing Co., 43; 707, 141 Texas 169 2d 708: S.W. State, generally, that, “It is the law of this law and the any special reason, absence of indication or a statute will not applied retrospectively, be constitutional even when there is no impediment against it.” J., “Statutes”, 692;
See also 59 C. 50 “Statutes” sec. Am. Jur. sec. 478.
As to applicable here, the second rule of this construction Court said with Incorporated reference to a similar statute Hempstead Town of Co., v. Gulf States Utilities 146 Texas 256; 230: S.W. generally grant
“The accepted principle of a the words public against grantee from strongly must taken be most is appraising rights also company of assistance in legislation has obtained under hereunder consideration. (Whether rights by company asserted denominated be grant, franchise, privilege presently any is not im- portance. principle grants applied equally involved all Tersely persons private concerns.) favor principle general is stated as follows: ‘The rule is that grant public, of a franchise is to be construed in favor and, language ambiguous, grant if the used is to be con- grantor against grantee/ strued in favor of the S., nothing Franchises, C. J. general s. 21b. ‘The grant rule is passes by implication by franchise, except aof what necessary give be effect obvious intent of the S., grant/ Franchises, well-put J.C. s. 21c. Another state- Jur., Franchises, ment of it in 23 Am. 16: s.
“ accepted grants ‘While is the doctrine that all are to according yet construed parties, intention of the there general light are certain rules of construction of which such contracts are well to be examined. These rules are settled grants by gov- numerous authorities. One is that in all rights, corporations, privileges, ernment individuals *16 against strongly franchises, taken most the words are to be grant from applicable grantee, contrary rule to the privi- or franchise who claims one individual to another. One rights public must lege derogation of the in of the common definitely clearly ex- by grant prove his thereto title enlarge pro- by equivocal pressed, doubtful and cannot ” probable visions or inference.’ legislative history of respondent upon The also relies Since, my opinion, the the language in statute to sustain its contentions. way plainly statute construed of the should be legis- referring indicated, necessity I have there is no However, opinion, history. my lative a consideration of in legislative history not different of this statute would lead to Legislature. majority conclusion as to the intention of the opinion importance mes- attaches much to Governor Jester’s sage Legislature, 9, 1949, he March which dated passage recommends Bill 393. House Throughout message, “elec- Governor Jester’s he referred right-of-way highways tric lines of State county roads,” enjoyment and the of electrical benefits unincorporated people services the rural areas and single towns. Not a time refer did Governor Jester town, incorporated city speak streets of an nor did he enjoyment inhabi- benefit of electrical services incorporated city tants had or town. That Jester Governor sought no idea applied the Act would to be to a incorporated prior date of the which was to the effective originally Act is further shown the fact the bill as introduced, letter, and at the time Jester wrote his Governor following legislative interpretation contained Act: “Nothing granting herein shall be construed as existing area, any maintain corporate prior included within the limits of or town Act, the effective date this without the consent of the governing body of such or town.” 28, Amendment James was not made until March legislative
In adopting interpretation Bill of House Governor said: Jester my understanding
“It is Bill and House that Senate No. 203 Bill purpose No. will effectuate desired in this connec- tion, hereby emergency and I submit matters under these bills as III, Constitution Article authority of Sec. Texas.” introduced, the above originally contained House Bill terms, *17 clause, by shows legislative its interpretation. This quoted Act; is, meaning that that legislative intent as to retroactively, operating but Act was not to be construed company, maintain its not corporation, could as this that prior incorporated to the which in a was or town gov- the town’s without the consent of effective date of the Act erning body. interpretation legislative that this It was with Legislature. House Bill 393 to Jester recommended
Governor It felt that the with was this construction that Governor Jester purpose. would bill effectuate the desired by passed
House Bill with James 393 was the House attached, Amendment when it reached the Senate this but amendment was between the stricken. Because of the conflict houses, by requested two a Free Conference Committee was compromise, House to consider In committee elimi- bill. this reflecting legislative nated both the clause intent and the passed by James Amendment. The was then bill both houses signed by the Governor.
By striking the clause which directed how the Act should construed, nothing be away right taken was from Act for no already granted that did not However, was exist clause. it is clear that give the James Amendment did affirmative right corporations, company. situated as is this This towas continue to system maintain and distribution its necessary incidental facilities thereto within a or town incorporated prior was date the effective of the Act expiration until agreement date contained in the franchise between the and the Commissioners’ Court or ten (10) By striking whichever less. amendment, this given revoked an affirmative which was original amendment. specifically The fact clause exempting cities and already towns which were from the effect of the bill and the James Amendment which nullified such upon passage clause were stricken final does not legislative indicate intent the Act should be construed retroactively original only legislative for the paragraph was intrenretation give any rights text Act and did not already By which did nothing not deletion, exist. was taken Act, legislative but it reflect does construction of the hand, by striking Act. On the other the James Amendment an com- utility, this right granted as is situated affirmative pany, revoked. was curative is remedial the statute
It also contended that liberal construction. effect, receive a should therefore Jur., “Statutes,” rule this Tex. sec. While See 39 cases, appropriate I do not think should properly applied in language, meaning statutory change ordinary be used to granting a franchise give retrospective effect to a statute derogation rights. passage company had no Prior to the of House Bill right, power to use roads the streets poles lines. City of its for the and maintenance erection Hempstead conclusively Jasper and cases This was held at the time the was the undoubted law of this State right, passed there no March its ordinance on 1949. Since *18 right, gives majority opinion is as of which effective incorporation City date of the of the reference to without in date Act. There defect law which effective was no language City required remedying. in The used Slate v. 1144, Worth, (Civ. history), 1143, App., Fort no writ 193 S.W. applicable especially is in this case. (contention remedial)
“In this connection our that statute is Rosche, aptly expressed County are views most in Hamilton v. 653, 408, 584, Rep. 50 Ohio St. 33 E. 19 LRA 40 Am. N. St. language statute, contended, where this used: it is is is ‘This may remedial, remedial and remedial statutes be retroactive. It is doubt, enlarged no in that em- sense of that term where it is designate ployed in, away supply pare law defects or of, hardships law, common but not remedial in the sense providing appropriate remedy a more af- than law before existing right obligation. forded to enforce an under simply imposed upon The statute provided procedure;
consideration no new method of it obligation
Hamilton an these toward plaintiffs in error not attach that did transaction when Legisla- attempting accomplish result, occurred. In ” ture powers.’ transcended its constitutional only possible be reached is that conclusion company here acquiring a exist is new that did not prior time under Revised Civil Article Statutes Texas, 1925. Jur., 19, p. in 39
As stated Tex. 41: Sec. pur- validating “A curative statute is one enacted for the confirming rights curing pose past proceedings defects arising past out of transactions.” neglect
The defects are where there described those complying requirements with some of law to com- or failure ply legal requirement.” with some “technical & Words sought Phrases, p. past here 665. The transaction to be cured legal requirement, is not a as contended the re- technical spondent, but is the creation of new cause action or defense prior that had not existed to that time. A remedial statute remedy obligation one which affords a enforcement of the City Galveston, or contract. De v. 470 and Cordova Texas Worth, v. 1143. Slate Fort 193 S.W. powers build, operate, utility
Broad maintain along public highways given utility corporations on and are adopt; under the construction I would and the statute therefore nugatory, contrary, given is not rendered but on the full deny merely effect. The result of this construction would be retrospective operation against to the statute cities incor- porated prior passage statute, and I believe that doing following plainly expressed legislative so we would be intent. judgment I would Ap- reverse the of the Court of Civil
peals judgment and affirm the of the trial court. Opinion delivered Feb.
Rehearing April 4, *19 overruled Fitz-Gerald, Jr.,
James Hull, v. H. Winston et al. February 14, 1951.
No. A-2738. Decided Rehearing April 4, 1951. overruled (237 W., Series, 256.) S.