*1 question probate whether the of the 1955 will and codicil attached Obviously thereto should be set aside. this issue finally probate determined court when it over- rules a interest, motion to dismiss lack and I fail see regarded possibly how it could quash- as determined ing of such a question motion. In either event the controverted brought before the court proceeding and for which the was pending probate still in the court for decision.
Opinion January delivered 1960. Mr. Griffin, Justice joined Justices Culver and Nor- vell, dissenting. holding I majority dissent from the order question interlocutory was appealable and not to the District Court.
The Appeals very Court of opinion Civil has written fine .expressing my views, I see no need to further encumber reports by my writing further, adopt and I expression my an views.
Opinion January 20, delivered 1960.
Rehearing February overruled 1960. City Austin, Texas v. Et Al. January 6, 17, No. Decided A-7173. 1960.
Rehearing February Overruled 1960. Dallas, The State Texas v. Et Al. January No. A-7174. Decided 1960. Rehearing February 17, Overruled (331 737) 2d Series *3 Grady Wilson, Attorney Will General, H. Chandler General, Webster, petitioner. B. Attorneys John Assistant *4 Austin; City Eskew, City Attorney Doren H. P. R. the of of Kucera, Dallas; Gossett, City Attorney City Whit- Ed of Co.; ney Donald Harris, Dallas, R. Bell Tel. of for Southwestern Thomas, Denius, Clark, for Union S. Edward Frank Southern Norris, both of Company; and Howard Gas Warren J. Collins Autry Dallas, and Company; Norton for W. Jos. Lone Star Gas Light Company; Worsham, Dallas, & Irion for Dallas Power of Dallas, Clark, Looney, Wetherbee, Lea, Jr., L. of James Willis Austin, respondents. Harris, Matthews, Thomas and of the Court. of delivered the Mr. Justice Walker place issue the con- declaratory judgment in These actions 6674w-4, Texas stitutionality Ann. Civ. Vernon’s of Article part as of Stat., legislature in by the which enacted was sec. 4A. Leg., p. ch. House Bill Acts 55th utility of facilities provides the relocation The statute that by improvement highways necessitated of the the part as of established System Highways National of Interstate and Defense by shall utility be made the at the cost the state and of provided eligible participation. relocation is for Federal evidently It adopted securing was purpose the bene- Highway fits of the Federal-Aid Act of authorizes the use of Federal funds to reimburse the state for cost of relocating utility proportion facilities in the as same such funds expended given project, are on a proviso with purpose that Federal money payment shall not be used for that when utility legal violates either state law or a contract between utility and the state. See U.S.C.A. sec. 123. suits,
The two which have been consolidated for submission appeal, on Attorney were instituted in name General Texas, petitioner, against City Dallas, one Telephone Light Company, Southwestern Bell Company, Power Dallas & Company, respondents, and Lone Star and the Gas against Austin, other Telephone Southwestern Bell Company, Company, respondents. and Southern Union Gas municipalities companies These facili- various rights ties way streets, alleys within city located public places corporate Dallas, other in the limits of Austin and necessary and it will be to relocate in the same connection with high- improvement designated and construction of interstate ways. Respondents position they en- have taken the doing provided titled to reimbursed this cost of 6674w-4, petitioner Article while insists the statute upheld by court, unconstitutional. The law the trial was Appeals the Court of Civil affirmed. 2d 767. affirm We judgment Appeals. of the Court of Civil points Petitioner’s first four of error Court assert 6674w-4, that Article to the extent the use it authorizes relocating pay part funds to facili- cost of ways ties now either situated and owned muni- cipality proprietary capacity utility company, in its payment contravenes the Texas in that such Constitution would grant moneys corporations (1) constitute: gift III, (2) a individuals in violation of Article Section III, or loan of the credit of the state in violation of *5 (3) obligations corporations 50; and release of Section III, 55; (4) an individuals in violation of Article Section private purposes in appropriation for individual violation or closely XVI, points four related Section 6. These argument. by petitioner purposes of grouped have been part assumption by 1 In the absence of state expense, respondents it is re- clear that could to at any move their them own installations owned rights public way and located in such relocation is whenever necessary by City highway improvements. made An- of San See District, Metropolitan App., tonio v. Bexar Texas Water Civ. ; (wr. ref.) City Antonio v. An- San San Ry. (wr. ; Co., App. 1, ref.) tonio St. Texas Civ. 39 S.W. States, Cir., State of Tennessee v. United 6th 256 F. 2d pointed case, Metropolitan As out in the Bexar Water District purposes the main of roads for travel and trans- and streets are portation. laying may While use same for utilities lines, subject regulation by their such use is either to reasonable state, county city, may or the as the case be. The may always police required, in the valid exercise of the power by governmental proper authority, adjust to remove its installations to meet the needs of the for travel and transportation.
2 There is no respect material difference in between a utility company years municipal corporation. many and a For the cities and towns enjoyed of Texas have exclusive dominion streets, alleys control over the public places and other within respective corporate their limits, pursuant but this was to a delegation statutory authority. 1016, See Articles 1146 and Legislature acting Vernon’s Ann. The Texas Civ. Stat. primary plenary power state has to control and regulate public delegate may power roads and streets. It municipal corporations, grant to counties or such a but of au- thority may any be revoked or modified at time. See Robbins County, 915; v. Limestone 114 Texas 268 S.W. West v. Waco, Municipal 294 S.W. 64 C.J.S.
Corporations statutory power sections 1689. The of cities public ways corporate and towns over within their limits has abridged by now been 2 and 5 of House Bill Sections 179. See 6674w-5, Articles 6674w-l and Ann. Texas Vernon’s Civ. Stat. provided Highway It is shall there Commission construct, operate designated power have the maintain and highways any state, area state whether or outside municipal any corporation, and that the limits of exercise qualify shall and render inexclusive dominion any city respect specific streets,- alleys or town with ways thereby. or other affected so, Legislature, it had do if decided to could also standing any way
provided that facilities must *6 354 recognize Respondents that such
be moved the owner’s cost. at Many city or- requirement and enforceable. would be valid authorizing utility dinances as well as companies of our statutes several along municipal corporations to erect their lines upon public stipulate owner of roads and streets facility may its own ex- relocate the same at be to pense permit improvements. Articles so as to road and street See 1433, 1433a, 1436a, and Ann. Texas Civ. 1436b. Vernon’s Stat. express public policy of the These and ordinances statutes adoption. Subject to con- state it existed at the time of their changed limitations, however, policy may stitutional be Legislature Yost, any 155 Texas at time. v. See McCain 898; Scarborough Payne, App., 2d v. Texas Civ. S.W. (wr. ref.). 2d 917 S.W. After the law then the occurrence of events which under existing give obligation part to an on the of an individual rise corporation state, Legislature power or has to re- to the no obligation Empire lease or diminish the without consideration. State, Fuel 265. also Gas & Co. v. 47 S.W. 2d See County Blackburn, Delta v. Texas 419. More- 93 S.W. over, public money pay predicated the use of to a claim on facts generate gift liability or which no state constitutes a donation Tompkins Williams, in violation of our Com. Constitution. See therefore, not, App., Respondents reim- could 70. any expense part all them in re- bursed for incurred locating adoption prior House Bill But their lines to the respondents operate retrospectively, does not statute right incurred it claim no to reimbursement for costs before became effective. Although argues otherwise, petitioner it cannot be said that obliga- continuing legal
respondents áre under an absolute expense any utility tion to at their installations relocate own public ways relo- whenever such owned them and situated necessary by highway improvements. Their use is made cation subject purpose simply at highways is of streets and for this police power of state. It all times to valid exercise of they only exerted that full measure of that when the highway im- obligated to installations conform to make the upon, duty expense. would arise provements This at their own before, making relocation a lawful demand for and not empowered Legislature has the facilities. Here high- and defense interstate Highway construct Commission utility companies relo- municipalities and ways and to direct conditioned, authority how- grant That cate their facilities. ever, by requirement utilities reimbursed they consti- In our this does not incur. meaning obligation tute the within teh release of an to the state III, of Article Chari- Section 55 of the Constitution. See State v. *7 Drainage 1, 345, ton District No. 252 Mo. 158 S.W. obviously gift
Article
a
or loan
6674w-4
does
involve
not
of
payment
the credit
the
or
of
state unless it can
said that
grant
money
public
relocation costs amounts to a
in violation
III,
purpose
and of
Section 51. The
of this section
XVI,
6,
ap
prevent
Article
plication
of the
is to
the
Section
Constitution
n
words,
private purposes;
i
funds
other
to
to
prevent
gratuitous grant
any
the
or
such funds to
individual
corporation
Byrd
Dallas,
whatsoever.
See
v.
28,
analogous
6
2d 738.
House Bill
S.W.
Statutes
to
179 have
upheld against
by
been
this
attacks
or similar constitutional
the
appellate
Minneapolis
jurisdictions.
courts of at least five other
Zimmerman,
164,
642; Opinion
Gas Co. v.
Minn.
2d
253
91 N.W.
Justices,
527,
613;
Opinion
101 N.H.
132
A. 2d
Justices,
449,
440;
Highways
Department
152 Me.
2d
132 A.
Pennsylvania
v.
Utility Commission,
Super. 1,
Public
185 Pa.
(reversed
grounds,
136 A. 2d
31,
on other
Pa.
145 A.
538) ; Oswego
State,
351,
2d
& S. R.
v.Co.
226 N.Y.
In it should be noted that no net gain accrues to the from the relocation of facilities its prescribed in the manner under the conditions the stat- including ute. “Cost of relocation” as amount is defined entire paid properly attributable to relocation after deducting any wfacility any of the ne sal- increase value vage pointed facility. old value derived from the As out Supreme Minnesota, merely reimbursement restores Court they position prior in which were the re- utilities to the to Minneapolis Zimmerman, Co. v. location of their facilities. Gas supra. if not for It is clear that reimbursed their non- also ex- costs, respondents subjected to will be substantial
betterment pense program. highway improvement a direct result only Respondents in the sense they from the statute benefit they re- a financial could be are relieved of which burden question then whether the quired to decided is bear. expense to pay part all loss or
use of funds to or corporation subjected by the or state which an individual police power an donation the exercise of its unconstitutional provided private purpose. creat- think not the statute We ing right operates prospectively, deals of reimbursement legitimate a real and matter has with the interest, fraudulent, arbitrary capricious. question frequently, it is rather 5 This has not arisen because legislative body an unusual ameliorate exercise of police power. only concerned with In cases the courts are most *8 gone beyond the the extreme limits whether lawmakers have Legisla- judgment power. issue, the that is the the such When supreme any the provided is there basis for ture reasonable that the have action taken. It has often been said lawmakers determining only what the in- not considerable discretion public require measures are neces- the but also what terests of sary protection for a those interests. If there is room necessity as to for and fair difference of the reasonable- police the of an lies domain of ness enactment which within the City power, of Bellaire v. the courts will not hold it void. See 43, 141, Lamkin, A.L.R. 2d 1289. 159 Texas 317 S.W. 2d 66 damage Compensation not made or loss to be 6 power. resulting police the See State v. from valid exercise of Richards, 166, 597, there 157 Texas authorities S.W. not, however, does reduce cited. The absence of cause action required to are often or make the loss which individuals their bear gained by injuries any to the less real. the benefits be When upon imposed the public are not commensurate with burdens permitted to stand. Hous- private persons, the law not See will be 648, Ry. City Dallas, 396, 84 98 Texas ton & T. Co. v. C. R. v. Rockwall Coun- 70 L.R.A. Missouri-Kansas-Texas Co. ty Texas 206. Individual L. I. Dist. No. 297 S.W. against weighed public by courts hardship is thus to be determining advantages the statute of a measure in whether power. police to These factors also exercise of a valid making Legislature its determination considered be may exercised. and should be in which to the manner strange say then that lawmakers quite to It would be except they par- no choice act to not at when conclude all ticular measure is to the welfare but will be essential unduly they private decide to reim- burdensome to citizens. If expense, part burse the all their actual loss or latter or gratuity simply payment is not into a mere transformed Legislature may has not appear because it courts that the to the power. exerted the fundamental law does full measure of its Our contemplate every private injury require not and loss or health, may necessary protect promote the which be to safety, always must borne indi- comfort and convenience corporations. viduals and provided
If the statute involved in the
case had
Richards
might
the innocent owner
recover the value of his vehicle from
state,
certainly
say
payment
we
amounted
would not
that the
gratuity.
buildings may
destroyed
to a mere
Animals and
compensation
without
to the owner where such action is neces
sary
prevent
spread
fire,
legislation
au
of disease or
but
theorizing
upon
paid
such destruction
condition that
owner is
property
III,
value of his
does
contravene
Sec
Gilbert,
tions 51 and 52 of our Constitution.
v.
Chambers
App.
(wr. ref.).
nearly
Texas Civ.
(cid:127)tions to
or
rare.
individuals
to be
question
uniformly
Those in which the
has
considered
hold
been
municipal
that state or
does not
contribution to
Board,
Lehigh Valley Ry.
come within such inhibition.
v. Canal
471,
964,
1913C, 1228;
204 N.Y.
Ann.
97 N.E.
Cas.
Brooke v.
Philadelphia,
think the
162 Pa.
29 A.
supra. which stand in the The removal of facilities purpose necessary accomplishment as the hills, however, the hills. trees and removal of trees and Unlike restored at another location if must be moved and lines pro- to the people services that essential are to receive *10 safety. public has a direct and thus of their health tection in the relocation of facilities interest and immediate highway improvements, with interfere otherwise which would payment and of not consti- the cost thereof does non-betteirment private appropriation tute a purpose. for a donation of funds anor Long Branch, pointed As out in Wilson v. necessary adjuncts 837, 847, N. J. 142 A. 2d are “Utilities operations prop- the and their welfare. Their business legislative many erty special subject treatment been to * * * during years. context, present uninterrupted In service the * * * completion project and after the vital. Where necessary, important removal of it that relocation facilities is expeditious controversy-free possible. That as and end is be intimately public pur- related to the of the overall achievement * * * pose .” paid If 9,10 doing the cost of is not non-betterment state, the initially by same In borne the utilities. most must be ultimately upon payers instances the burden local tax would fall payers, and rate provide part who must also the taxes used for highway individuals, special construction. These who receive no highways, benefit from the would thus be to contribute to undertaking. twice overall cost Under these cir- cumstances, Legislature it was for the whether to determine to equalize by paying the burden the entire from state funds. In Cardozo, the words of Mr. Justice “this is a case where Legislature, by looking future, action to the has defined equity go justice upon terms prise. and an which it will into enter- fixing In conditions, Legislature these has dis- wide * * * cretion. judgment will not revise unless Courts its there * * * has been manifest The state about to execute a abuse. was doing great public work. It saw that in the of that work there private property. damage would be destruction Much injuria. absque would damnum it would be dam- Nonetheless age. The inequality result would in the distribution of pay dearly proportion burdens. Some would more than others Legislature, fixing inequality to benefits received. This undertaking, power advance the had the conditions of to might price enterprise It at correct. refuse to launch an hardship oppression. power destroy There was and leave might pay loss where it fall. There was also destruction, thereby uniformity reestablish some question proportion and burdens. The was fer- between benefits strong Legislature equity compensation was tile whether enough recognition. illusory.” it to merit cannot hold to be We State, opinion, Oswego supra.1 In R. our & S. Co. citing case, Quoting approving understood as
1.—In from this we not to "be recognize may legislature equity York rule the New claims founded on justice though could even the same not have been enforced court of law
360 power is a of its 6674w-4 exercise the state reasonable improvements, does and assume the financial burdens of above. any provisions mentioned not violate of constitutional 11,12 grant or uncontrol- The statute does not an irrevocable any repealed special privilege, at able the law can be because right time and in that no to reinbursement event there will be noted, expense for relocation incurred. It should be thereafter however, right way placed that on of if relocated lines are acquiring utility, said will owned the cost of be right way relocation properly is not to such of attributable cost, meaning pay this of If the state should within the Act. position buying that which it would be in the of eminent domain it would to take under the be placed lines are were in where the relocated the event la^d superior public would use. This ever needed for a different and gift statute private purpose, and the an for a be unconstitutional given should, reasonably that will possible, if construction be Wilson, County render it not invalid. Cameron 25, 326 162. By 6674w-4, for reloca- terms of Article reimbursement eligibility upon
tion costs is of such conditioned relocation change argues participation. in that Federal Petitioner Federal, modify participation the conditions would and extent of owners, legal obligation both of Texas to an un- private municipal, and the statute is therefore legislative power delegation to the United constitutional agencies. Respondents States, Congress insist its was merely contingent legislation that which similar to statute is (7 Cranch) Big Aurora, 11 U.S. considered The Jones, 19. Texas We Antonio v. L. Ed. of San agree contentions. not with either of these do Legisla- hands of the complete it left the The law was when upon happening of operative and was not to ture become change percentage A in the contingency or future event. some naturally amount which affect the participation will Federal reimbursement, not alter but will by way of receives the state part of obligation the utilities. No way the state to any state, course, the relocation if paid will making eligible participation, but for Federal establishing relo- simply class Legislature was provision the Board, Valley Lehigh subject R. Co. v. Canal to suit. See were if the state Y. 97 N.E. N. projects cation utilities entitled to reim- which the will be It is bursement. our the classification reasonable delegation legis- that the law is not unconstitutional as a power. lative High- paid cost relocation out of the State *12 Fund,
way
derived,
regis-
part,
which is
in
motor vehicle
from
6675a-10, 6694,
tration fees and motor fuel taxes. See Articles
7065b-25,
provi-
and
Ann. Texas
Under the
Vernon’s
Civ. Stat.
VIII,
7a,
Constitution,
of
sions
Article
of the
revenues
Section
only
may
constructing
received from these sources
used
public roadways
designated purposes
and for other
which are
argues
not material here. Petitioner
that
reloccation ex-
pense
part
highway
is
the cost
construction within the
meaning
provision.
jurisdictions
of this
The courts of other
are
evenly
question.
rather
expressed
divided on that
have
Two
view that
paid
costs of relocation cannot be
with funds that are
highway
Opinion
authorized to be used for
construction.
of the
Justices,
449,
Mulkey Quillian, supra.
152 Me.
A. 2d
v.
equal
An
language
number
held
of the
Constitu-
given
tion should not
a
narrow construction. Minne-
apolis
Zimmerman, supra; Opinion
Gas Co.
Justices,
v.
of the
527,
101 N.H.
The statute must be sustained invalidity apparent beyond unless its courts reaonable doubt. Co., Trapp v. Shell Oil 198 S.W. 424. See It has ways already pointed been out use of proper and mains lines is one of the installation purposes necessarily roads and streets are to which common although primary devoted, principal and use is for their travel transportation. relocation of such The facilities is made integral part highway necessary by improve- an and is program. Legislature determines,
ment If the as it has this instance, paid by that non-betterment cost thereof should be state, opinion it properly our that the same attributable highway meaning construction within the the Constitu- tion. judgment Appeals
The Court of is affirmed. Civil Opinion January delivered Smith, rehearing.
Mr. Justice on motion for January 6, 1960, opinion On this rendered its court language: following case. above contained the noted, however, “It lines should be if the relocated right placed way utility, acquir- on owned the cost of right ing way properly said is not to such reloca- attributable meaning pay tion within the If the State should Act. *13 cost, position buying it would be it which would take under of eminent placed lines domain the event land the relocated where superior public ever use. This were needed for different gift private purpose, would be an unconstitutional for given should, reasonably possible, if construc- statute it tion that will render invalid.” not February motion on for con- On came State’s court, rehearing was the motion over- sideration ruled, quoted language had after amended the above been inserting “way” between the words “which will words be” and “owned.” language quoted before Regardless whether amend- ambiguous, my position it is after amendment
ment dictum, wholly unnecessary to a decision of holding is entire ques- and should The this case be deleted. issues involved case, injected into this have been should but should tion decision, raised, properly in some if future left for been case. sug- extent herein be modified opinion should rehearing, should be overruled. and the
gested, motion February 1960. Opinion, delivered February Rehearing overruled