Untitled Texas Attorney General Opinion ( 1940 )

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