Case Information
*2 Honorable Fred Norris, page 2 (C-2274)
“A resolution ganting to the GULF STATES UTILITIES CCMPAEY, its successors and assigns, the right, privilege and frenohise to erect, oonstN&, maintain, operate, use, extend, remove, replace, and repair in, under, upon, over, aoross, and along any and all of the present and future publi.0 roads, highways, streams. squares, parks, lanes and alleys of Polk Cm&y, Texas, and over and across sny stream or streams, bridge or bridges, now or hereafter owed Ot oC&lWiled by it, a QVtiam of poles, pole lines, transmission lines, Wires, guys, conduits, and other desired instrumentalities and appurteaances, (includ- ing telegraph and telephone poles and wires for grantee's - -Ise), necessary or proper for the supply and distribution of eleatrioity for light, heat, and power, and for other purposes for whiah electriaity may be used, to Polk County and its inhabitants of said county, or eny other person or persons, firm or oorporation. (Underscoring mine)
"IE IT RESOLVED BYTBE COMKISSIGEEES' CC'JRT OFPQLE CCUETY, TEXAS* "Section 1. The word 'grantee' shall herein denote GULF STATES UTILITIES CCMPAEY, a oorporation, its successors end assigns; and word 'grantor' shall denote Polk County, Texas.
'Se&ion 2. That Polk Countg does hereby grant unto theaaid grantee, its suooes- sors and aarsi@aas, the right, privilege andfranchise to erect, oonstNot, main- tain, operate, use, extend, remove, replaoe and repair, in, under, upon, over, across and along any and all of the present 8 streets, squares,'parks, lanes and alleys, owned or controlled by it, a system of poles, pole lines, transmission lines, tires, guys, conduits, and other desirable instrumentalities and appurtenances, (including telegraph andtelephone pole8 and for use of grantee) necessary or proper for the parpose,of carrying, oonduoting, supplying, distributing and selling to Polk County, and its inhabitants of Polk County, and any other person or persons, firm or firms, oorporation or corpora- tions, electricity for light, power and heat, and fop any other purpose for which eleotricity ms$ bs used? to carry, conduot, supply, and distrilxte eleotrioity by means of said poles, pole lines,iransmissioa lines, oonduits or other instrumen- talities, and to sell the same to Polk County, and the inhabitants thereof, or to any other person or persons, firm or firms, oorporation or corporations.
"Section 3. The work of oonstruoting and erecting poles, towers and lines.shall be so aonducted as to not interfere with the constructionand maintenanoe of or withtraffic over sa%d roads, streets, bridges and alleys.
"Section 4. The service furnished hereunder to said Polk County and it8 inhabi- tants shall be first olass in all m3peotS, considering all ciroumfrtences. "Section 5. Grantee shall hold Polk County harmslss for all expenses or liabil- ity for any act or negleot ofgrants hereunder.
"Seation 6. Nothing herein contained shall ever be oonstNsd as cOnferriZ3g upon the grantee aqy exclusive rights or privileges of any nat :e whatsoever.
"Section 7. This resolution shall be in force fromand after its passage, and, upon the filing by the grantee of a written aooeptanos withthe County Clerk of Polk Counti within sm (60) days after the final passage of this resolution, sams shall then beowe a binding contraat and shall exist for a period of fifty (50) years.
"Passed and duly enaoted by the Conmdssioners' Court of Polh County, Texas, at a regular term and session of said Court, in aooordance with the laws of the State of Texas, on this the 10th day of October, I.D. 1927.
"James E. Bill, Jr.
County Judge of Polk County, Texas,
Hobby Galloway,
Commissioner Prec. #1, of PoIk County Texas,
IL MoCraney,
Codssioner, Preo. #2, Polk County, Texas,
B. L. Thompson,
Conmissioner, Rec. #, Polk County, Texas,
Fred Bandley,
Conmissioner, Free, #4, Polk County, Texas~"
Articles 1435 and 1436, Vernon's Annotated Civil Statutes, read as fol- lows*
'%t.1435* POEERS. - Gss, eleotric current and power corporations shall have power to generate, make and manufacture, transport and sell gas, electric current and power to individuals, the publio end municipalities for light, heat, power and other purposes, and to make reasonable charges thsrefort to oonstruot, maintain and operate power plants and substations and such machirrery, apparatus, pipes, poles, wires, dwioes and arrangements as maybe necessary to operate suah lines at and between different points inthis State: to own, hold, and use suoh lands, right of way, easements,fknohises, buildings andstruotures asmay be neo- essary for the purpose of suoh oorporaticm."
"Art. 1436. RIGHT OFEAY. - Such corporatirm shall have the right and power to enter upon, condemn and appropriate the lands, right of way, easements and property of any person or oorperation, and shall have the right to ereot its lines over and aoross any public road, railroad, railroad right of way, interurban rail- road, street railroad, oanal or stream in this State, any street or alley of any incorporated oily or town in this State with the oonsent and under the direotion of the governing body of such city or town* Such lines shall be construoted upon suitable poles inthe most apprwd manner and maintained at a height above the ground of at least twenty-one feet; or pipes may be placed under the ground, as the exigencies of the case may require."
Article 6021, Vernon's Annotated Civil Statutes, provides in part that: *4 "The right to rua pipe lines, telegraph and telephone lines along, aoross or over any public road or highway cafl only bs exercised upon oonditionthat the traffic thereon be not interfered with, and that such road or highway be promptly restored to its former condition of usefulness, and tt;: rest~raticn thereof to be sub@& also to the supervision of the canmissioners s:*>t!A or other proper local authori- ty. . . ."
It mas held in our Opinion No. C-18,X that "the ooxwxissioners' court n?,uld not have the authori+yto grant a franchise %o the Centrai Power 60 Light Company to cover the county of Brewster, Texas." ‘:Je are enciosing a copy of that opinion for your ooavenisnoe~
The general rule governing powers and limitations of the County Commission- ers' court , as set out by the Supreme Court in Commissioners Court v. Xallace 15 SW (Zd) 335, reads, in part as f 0110~s~
'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 bythe kg- islature. Art. 6, Sec. 18, Const. of Tex; Baldwin V. Travis County, 58 sIA480; Sews& V. Falls County, 246 S.W. 728; Bland F. Orr 39 SW 558." "
Articles 2351 and 2372a, Vernon's Aunotated Civil S:atutes, as emended, set out the various powers and duties of the Commissioners Court, andsre too lengbhy to set out in this opinion. However, it should be-pointed out that none of the above mentioned arti+zs,di&&y '1. indirectly, gives the consnissioners' court the power to issue a county franchise ix the above mentioned power company.
In Tex. Jur., Vol. 19, at pp. 876-879, we find the following language in regard to franchises:
"To be a franohise the right must be of suoh a nature that, from empress legisla- tive authority, it cannot be exercised. . . . The legislative department of the Government is a souroe of the grant ,of a franchise. e . . The Legislature, un- less constitutionally inhibited, may exercise authoriw by direct legislation, hating power for that xzrpose," or throggh agencies duly estaBlished, It is a sell established rule that the commissioners' court ma~r exeroise only those powers specifically designated by the Constitutien or the statutes, or those powers necessarily implied. The fact that a franobise is a very special privilege given only by a direot legislative grant cr by spsoifical;ly designated agenay, we must reach the conclusion that the county commissioners court does not have the power or authority to grant a county franchise to a pewer canpa~pr.
It will 'be noted that Article 14:6 permits corporations like the one here under consideration to erect its lines only “over and acmssn and not ‘along” public roads, etc. _ -
When a corporation as above mentioned ereots and constructs its lines, poles and lines, etc., over and across any street and alley of any incorporated city and town in this State, such corporation must do so with the consent and
Honorable Fred Norris, page 5 (oC2274)
under the direction of the governing body of suah city or town.
A8 abow pointed out, the State by Article 1436 has conferred ths right upon corporations a8 above mentioned to erect and oonstruct its lines over and across public roads. It is a ftmdamental principle of law that property shall not be taken for publio use without adequate aompensation, aadthat no person shall be deprived of his property exoept by due course of law. The plat show- ing the looation of the right of way for the old highway, the right of way for the power line and the right of way for the newhighway shows that the power line did not crossor go over theoriginal highway, but when the new highway was coa- strutted, the right of way for the 8am orossed the right of way of the p-r line or utility company, aeoessitating the renoval of a few poles of the power line along the side of the new high-say, also the utilit)r oompcrqy was required to u8e higher poles in orossing the highway anderect oertain guy lines in making the above mentioned changes. However, the utility company was not required to seoure any additional right of way for the above mentioned purposes.
In view ofthe foregoing authorities, you are respsotfully advised that it is the opinion of this Department that tie county is liable to the Gulf States Utilities Company for all reasonable expenses neosesarily inourred by said oom- pany for the purposes aforesaid.
You further state in your inquiry that on April 5, 1938 the Gulf States Utilities Company presented you with an aooount stilar to the above and that the 8~ eas paid bs the commissioners oourt. It is our furtkr opinion that if the faots in the above mentioned transaction eere similar to the Pa&s dis- cussed in tb&8 opinion, then the oounty would be liable for such expenses. Therefore, your seoond question becomes moot.
Trusting t&at the foregoing fully answ8rs your inquiry, me are Yours very truly OFTEXAS A!EORNNYGENEIuL By /s/Ardel: nrlliam8 Ardell Williams Assistant AWROVED JULY 15, 1940
/s/GROVER SELLERS APPROVED FIRSTASSISTAET OPINION COEMITTEE ATIORNEYGEEERAL BYBEBB. Chairman
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