Untitled Texas Attorney General Opinion ( 1940 )

OBEY GENERAL
OF TEXAS
Honorable 0. Kennedy
County Attorney
Bee County ~'
Beevllle, Texas
Dear Sir: Opinion No. 0-2318
Re: Under the stated facts Is the married
woman a citizen and entitled to vote?
And another question.
Your recent request for an opinion of this department,
on the questions as are herein stated, has been received.
We quote from your letter as follows:
"Approximately forty five years ago a woman who
was born ana raised Fn this county married an alien.
Rer husband was never naturalized. This question has
arisen often in this county. The election judges
have requested that I ask you for your ruling as to
whether or not this woman is a citizen and entitled
to vote.
"In 1919 the Commlssloners Court of this county
granted a franchise to certain members of one~of our
rural communities to build a telephone line from the
county seat to such community. The 1Lne vas immed-
iately constructed and continued in operation until
very recently. The county granted another franchise
to a power company to construct an electric light
wire along the same highway right-of-way from the
county seat to said community. When the electric
light wires were put In use, they killed completely
the telephone 1Fne and the telephone line cannot now
be used because of the electric llne. It 1s admitted
by the people owning the telephone line that there
can be procured and constructed telephone lines, at
the same location of their present lines, whFch would
be satisfactory, but the excuse of making the im-
provements and changes would be prohibitive to the
community. The Commissioners Court of this county
has requested that I ask your ruling as to whether
or not Bee County is liable In damages to the people
owning the telephone line by reason of the county
Honorable 0. Kennedy, page 2 O-2318
having first granted a franchise for the construc-
tion of the telephone lines and later granted a fran-
chise to another company to construct the electric
light line which killed ana rendered useless the
telephone line.
By the Federal Constitution, Article 14, Section 1:
"All persons born or naturalized in the UnLted
States, and subject to the jurisdictions thereof, are
citizens of the United States and of the State vhere-
In they reside."
Section ,l of Title 8, U.S.C.A., provides that:
"All persons born in the United States and not
subject to any foreign power are declared to be clt-
Fzens of the UnIted States."
Section 9, Section 9a and Section 17a of Title 8,
U.S.C.A., read as follows:
"Section 9. SAME; CITIZENSHIP OF WOMEN CITIZENS
OF UNITm STATES AS AFFECTED BY~MARRIAGE. A woman
citizen of the United States shall not cease to be
a citizen of the United States by reason of her mar-
riage after March 3, 1931, unless she makes a formal
renunciation of her citizenship before a court hav-
ing jurisdiction over naturalization of aliens."
"Section ga. SAME; REPATRIATION OF NATIVE-BORN
WOMEN MARRIEB TO ALIENS PRIOR TO SEPTEMBER 22, 1922;
COPIES OF PROCEEDINGS. 'After June 25, 1936 a woman
being a native-born citizen, who has or is believed
to have lost her United States Citizenship (sic) sole-
ly by reason of her marriage prior to September 22,
1922, to an alien, and whose marttal status with such
alien has or shall have termtnated, shall be deemed
to be a citizen of the Unlted States to the same ex-
tent as though her marriage to said alien had taken
place on or after September 22, 1922: Provided,hov
m, that no such woman shall have or claim any rights
as a citizen of the United States until she shall
have duly taken the oath of allegiance as prescribed
in section 381 of this title, at any place within or
under the jurisdiction of the UnitedStates before
a court exercising naturalization jurisdiction there-
under or, outside of the jurisdiction of the United
Honorable 0. Kennedy, page 3 o-2318
States, before a secretary of embassy or legation
or a consular officer as prescribed in section 131
of Title 22; and such officer before whom such oath
of allegiance shall be taken shall make entry there-
of in the records of his office or in the naturallz-
ation records of the court, as the case may be, and
shall dellver to such person taking such oath; upon
demand, a certified copy of the proceedings had ln-
cludlng a copy of the oath administered, under the
seal of his office or of such court, at a cost not
exceeding $1, which shall be evidence or the facts
stated,therein before any court of record of judi-
cial tribunal and ln any department of the United
States." (Underscoring Italics)
"Section 17a. SAME; MARRIAGE TO FOREIGNER. A
citizen of the Unlted States may upon marriage to a
foreigner make a formal renunciation of his or her
United States citizenship before a court having jur-
isdiction over naturalization of aliens, but no cit-
izen may make such renunciation in time of var. and
if war shall be declared within one year after such
renunciation then such renunciation shall be void."
Alienage may arise in three wags; by a birth, by elec-
tion, and by operation of law. CORPUS JUR., Vol. 2, p. 1044.
In Re Chamorra (D. C. Cal., 1924), 298 Federal 669,
with reference to Section 9, supra, it was held that this
section had no effect on the status of an American woman who
married an allen before the enactment of the section, and
that such a woman remains an alien,
We do not have sufficient facts to categorically an-
swer your first question. However, if the woman, mentioned
In your inquiry, was married before September 22, 1922, she
is an alien and is not entitled to vote unless she has com-
plied with Section ga, Title 8, U.S.C.A., supra. On the other
hand, If the woman was a citizen of the Unlted States and
married since the third day of March, 1931, unless she had
made a former renunciation of her citizenship before a court
having jurisdiction over naturalization of allens, she hss
not ceased to be a citizen of the United States and the state
of Texas. Provided, that she had not married an alien inel-
igible to citizenship, and would be entitled to vote unless
otherwise disqualified.
With reference to your second questlon, we direct
your attention to Articles 1435 and 1436, Vernon's Annotated
Civil Statutes, which read as follows:
- -
Honorable 0. Kennedy, page 4 o-2318
"Art. 1435. POWEFtS.-Gas, electric current and
power corporations shall have power to generate, make
and manufacture, transport and sell gas, electric cur-
rent and power to Individuals, the public and muni-
cipalities for light, heat, power and other purposes,
and to make reasonable charges therefor; to construct,
maintain and operate power plants and substations
and such machinery, apparatus, pipes, poles, wires,
devices and arrangements as may be necessary to oper-
ate such lines at and between different points In
this State; to own, hold and use such lands, right
of way, easements, franchises, buildings ana struc-
tures as may be necessary for the purpose of such
corporation."
"Art. 1436. RIGHT OF WAY.- Such corporation
shall have the right and power to enter upon, con-
demn and appropriate the lands, right of way, ease-
ments and property of any person or corporation, and
shall have the right to erect its lines over and
across any public road, railroad, railroad right of
way, interurban railroad, street railroad, canal or
stream In this State, any street or alley of any ln-
corporated city or town in this State with the con-
sent and under the direction of the governing body
of such city or town. Such lines shall be constructed
upon suitable poles In the most approved manner and
maintained at a height above the ground of at least
twenty-two feet; or pipes may be placed under the
ground, as the exigencies of the case may require."
In the case of McCULLOCH COUNTY ELJXTRIC CO-OP vs.
HALL, 131 S. W. (2nd) 1019, among other things, it was held
that:
"The law Is settled in Texas, the United States
and in England that there Is no liability for induc-
tion and conduction with a telephone line by a hlgh-
power transmission line, In absence of negligence,
malice of unskilfulness on the part of the lnterfer-
lng transmission line or agency; and no extended dls-
cusslon need be made of this question.
"The above conclusion of nonliability in absence
of negligence Is predicated upon the reasoning that
where a right is common and unlversale, and capable
of being exercised by all at the same time, the rule
Honorable 0. Kennedy, page 5 O-2318
that he who is prior in point of time Is prior in
the field does not thereby gain a monopoly of use.
In applying the rule courts have held that a tele-
graph company cannot recover damages for the mere
construction of a power line so close to its vlres
that the Induction interferes with their use,"
This case further holds in effect that if an electric
company in bulldlng a transmission line paralleling the tele-
phone line and could find no system unless it were metalllciz-
ed,and the electric company selected a system which was safer
to,the public generally , the owner of the telephone system
should bear expenses of metalllcizlng the telephone lines.
It was held in our oplnion No. 0-1805:
"That the Commissioners Court would not have the
authority to grant a franchise to the Central Power
& L);ghtCompany to cover the County of Brewster, Tex-
as.
We are enclosing a copy of this opinion for yowcon-
venience.
The general rule governing powers and llmltatlons of
the County Commissioners' Court, as set out by the Supreme
0o~~~,':,"~CMM~S"'"""" COURT vs. WALLACE, 15 S. W. (26) 535,
, as follows:
"The Commlssloners' Court Is a creature of the
State Constltutlon, and Lts powers are limited and
controlled by the Constitution and the laws as passed
by the Legislature. Art. 5, Sec. 18, Constitution
of Texas; Baldwin VS. Travis County 88 3. W. 480;
Seward vs. Falls County, 246 S.W. 728; Land vs. R.
Bland VS. Orr, 39 S.W. 558.”
Articles 2351 throughout 23728, Vernon's Annotated
Civil Statutes, as amended, set out the various powers and
duties of the Commissioners' Court and are too lengthy to set
out in this opinion. However, it should be pointed out that
none of the above mentioned articles directly or indlrectlg,
give the Commissioners' Court the power to izsue a county
franchise to the electric light and power company or to the
telephone company, mentioned above.
In !lXX.JUR., vol. 19 at pp. 876, 879, we find the fol-
loving language in regard to franchises:
"To be a franchise the right must be of such a
-. .
Honorable 0. Kennedy, page 6 O-2318
nature that, without express legislative authority,
It cannot be exercised * * * The legislative depart-
ment of the government Is the source of the grant of
a franchise + * * The legislature, unless constltu-
tlonally inhibited, may exercise authority by direct
legislation, or through agencies duly established,
having power for that purpose."
It Is a well established rule that the Commissioners
Court may exercise only those powers specifically designed
by the Constitution or the Statutes; and the fact that a
franchise is a very special privilege only given by direct
legislative grant or by specifically delegated agency, we
must reach the conclusion that the County CommlstilonersCourt
does not have the parer or authority to grant a county fran-
chise to an electric company or a telephone company.
A county Is a body corporate which acts through its
Commissioners Court. The acts of the Court, therefore, In
good faith performed within the scope or apparent scope, of
the powers committed to It under the Constitution and laws
are the acts of the County. TX. JUR., vol. 11, p, 629.
One who deals with the county is charged with notice
of regulations created by the legislature; and a custom which
Ignores the law cannot be invoked for the purpose of valid&t-
lng a transaction which is othel*rlseinvalid. TEX. JUR. Vol.
11, 640; GOSS v. FANNIN COUNTY, 244 S.W. 204.
In view of the foregoing you are respectfully advised
that It Is the oplnlon of this department that the Commisslon-
ers Court of Bee County did not have the legal right or au-
thority to grant a franchise to the telephone company or to
the power company, and such unauthorized acts of the Commls-
sioners' Court would not be acts of the county. Therefore,
Bee County would not be liable for damages to people owning
the telephone line which was rendered useless by the construc-
tion& operation of the power line.
Trusting that the above fully answers your inquiry, we
are
AW:ob:vc Yours very truly
ENCLOSURE ATTORNEY GENERAL OF TEXAS
APPROVED JULY 1, 1940 By s/Ardell Wllll~ms
s/Gerald C. Mann drdell Wlllitims
ATTORNEY GENERAL OF TEXAS Assistant
Approved Opinion Committee By s/BWB Chairman