Untitled Texas Attorney General Opinion ( 1951 )

WE OMNEY GIENERAL
7rlEXAS
May 2, 1951
Hon. Rogers Kelley, Chairman
Senate Water Rights, Irrigation
and Drainage Committee
52ad Legislature
Austin, Texas Opinion No. V-1171
Re: Constitutionality of House Bill
No. 25, as amended, relating to
the construction of dams on the
Nueces River.
Dear Sir:
Your request for the opinion of this office concerns
House Bill No. 25 which is pending before the Senate Commit-
tee of which you are Chairman. You state:
“A hearing was held upon the Bill before the
Committee . . , and the Committee instructed the
writer m. 9 to request an opinion from you as to the
validity and to the constitutionality of the Bill, be-
fore taking any action upon the Bill, as a serious
question was raised before the Committee as to the
Bill’s validity and constitutionality.”
House Bill No. 25 provides:
“Section 1. No application for a permit for the
construction, enlargement or extension of any dam,
lake, reservoir or other facility upon the Nueces
River and/or any of its tributary streams for the
diversion, impounding or storage of public water
which would inundate or cause the inundation or
forced relocation, partially or wholly, of any city
or town incorporated for more than ten (10) years
shall be granted or permit issued by the State Board
of Water Engineers without the consent of the major-
ity of the qualified property taxpaying electors of
such city or town.”
The other sections of the bill provide the method for determin-
ing the necessity for an election and the procedure for conduct-
ing that election should it be required to determine if a majority
of the electors favor the project.
Hon, Rogers Kelley, page 2 (V-1171)
As originally i.ntroduced, House Bill No. 25 was not
restricted in applicati,en to the Nueces River but was applic-
able to any river in the State. By amendment, however, it
was pa,Ovided that the terms of the bill would apply only to
the Nueces River, It is in this latter form that the bill is be-
fore us,+.
,The subject of the constitutionality Or valid’lty of the
bill presents two questionsi These are:
(1) Whether House Bill No. 25 is a local or
special law prohibited by Section 56 of Article III
sf the Texas Constitution in that
(a) It regulates t&e af;fairs of counties,
cities, tOwns, wards, 0~ school dis,tricts: or
,(,b) It pr,Ovides fbr the opening and con-
ducting of electhons or fixing or changing the places
obud@ng: ot
(c) Whether House Bill No, 25 is a lbcal
or special law 4&h is prohibited in cases whese
a ge,neral law can be made applicable,,
(2) Whether the necessity for an elac’$ion and
consent of the majority of property owners t0 be af-
5ected is an impairment of the right of eminent, do-
main granted to the Lower Nueces River Water Su~pp-
ply District and the other authorities which might
desire to construct dams On the Nueces River,,
The first question arises by virtue of the prOvisions
0f Section 56 of Ar,ticle III of the Texas Constitution which
are, in part:
“Sec. 56. The Legislature shall not, except as
otherwise provided in this Constitution, pass any
local or special law, authorizing:
‘“Regulating the affairs of counties, cities, towns,
wards or school districts;
“For the opening and conducting of elections, or
fixing or changing the places of voting;
Hon. Rogers Kelley, page 3 (V-1171)
“And in all other cases where a general law
can be made applicable, no local or special law
shall be enacted. D ~ 0n
The effect of this bill is to limit the power of the State
Board of Water Engineers to grant permits for the construction
of improvements upon the Nueces River for the diversion, im-
pounding or storage of public water when such construction
would inundate or force relocation of incorporated cities or
towns described in the bill. Directly or indirectly it also lim-
its the power of an existing public agency, the Lower Nueces
River Water Supply District, created by House Bill No. 283,
Acts 51st Leg., R.S. 1949, ch. 159, p, 326 (Art. 8197f note, V.C.
S.) to construct dams, etc., on the Nueces River when they
would inundate or force relocation of such a city or town. In
these respects the bill operates on and affects the power and
duties of the State Board of Water Engineers and the Lower
Nueces River Water Supply District rather than “regulating
the affairs of counties, cities, towns.’ etc. In Harris County
Flood Control District v. Mann, 135 Tex. 239, 140 S.W.Zd
7I940) the Supreme Court held that the act creating the Hays
Count; Flood Control District with boundaries and area iden-
tical with the boundaries and area of Harris County, and mak-
ing the Commissioners’ Court of Harris County the governing
body of such district, does not violate Article 3, Section 56,
prohibiting the Legislature from passing any “local law” or
“special law” regulating the affairs of counties or prescribing
the duties of officers in counties, The Court said:
“Simply stated, the Act of 1937 is fully author-
ized by Section 59 of Article XVI of our State Con-
stitution, and the Act creating this district should
not be classed as a local or special law within the
meaning of the constitutional provision under discus-
sion, ”
Many conservation, navigation, and flood control districts
have been created in this State by statutes applying to part or all
of certain specific rivers or specific counties within particular
water-sheds. These separate acts contain many special provi-
sions which apply only to the particular river or district involved.
Certain of these acts are set out in notes following Article 8197f.
V.A.C.S., under the title “Water Supply and Control,” with the
description “The following laws, though passed as general laws,
are in fact special acts relating to particular conservation and
reclamation districts.’
Hop. Rogers Kelley, page 4 (V-1171)
The act creating the Lower Nueces River Water Supply
District itself has special provisions relating to the power to
“acquire water rights theretofore granted by the State of Texas
to cities or districts situatdd wholly or partly within the district
or outside the district under terms to be negotiated between the
district and any such city ~ O *” (Acts 51st Leg,, R.S. 1949, ch.
159, p* 326, Sec. 12). It would hardly be contended that this act
or this section of the act regulates the affairs of cities or is
otherwise condemned by Article III, Section 56, as a “local” or
“‘special law.”
Although limited to certain rivers and certain areas
these acts and their special provisions have been upheld by the
Courts of our State as treating a subject,.matter of general pub-
lic interest and therefore not ‘“local or special” within the mean-
ing of Article 111, Section 56.
In Lower Colorado River Authority v. McCrgw, 125 Tax.
268, 83 S.W.Zd 629 (1935), a bill which established the Lower
Colorado River Authority, was before the Court. It was there
contended that Section 16 of that act, which exempts the bonds
of the Authority from taxation by the State, any municipal cor-
peratien, county, or other political subdivision, “is unconstitu-
tional and void because it violates section 56 of article III of
our state Constitution.” In overruling this contention the Court
stated:
“In our opinion. Section 16 of this Act is not vi-
olative of the provision of the Constitution just cited.
In the first place, it is settled th~at a statute is not
local or special, within the meaning of this constitu-
tional provision, even though its enforcement is con-
fined to a restricted area, if persons or things through-
out the State are affected thereby, or if it operates up-
on a subject that the people at large are interested in.
Stephensen v. Wood, 119 Tex, 564, 34 S.W.2d 246. An
examination of this act convinces us that it operates
upon a subject that the state at large is interested in.
”
. aD
This same holding is to be found in Lower Neches Valley
Authority v. Mann, 140 Tex. 294, 167 S. vV.2dm43) . Th’ere
are other Texas cases in which the courts have held that when
the subject of a bill is a matter of general public interest. the
bill is not a special or local law within the meaning of Article
,
Hon. Rogers Kelley. page 5 (V-1171)
III, Section 56.’
Based upon the holdings in these cases, it would appear
that even though House Bill No. 25 deals solely with the Nueces
River and its tributaries and not with any other river in the
State of Texas, it is not a local bill since the subject regulated
is one in which the public at large is vitally interested. This,
upon the basis that if the public, generally, is interested in the
authority to construct dams and conserve, protect, and regulate
waters, it is also interested in any limitation upon this author-
ity.
If the provisions of House Bill No. 25 had been enacted
as part of the original act creating the Lower Nueces District,
it is doubtful if any question could be successfully raised as to
its validity. In our opinion, such provisions are no less valid
because of their separate and subsequent enactment.
We think the situations here presented is analogous to
the proposition before the Supreme Court in Stephensen v.
Wood, 119 Tex. 564, 34 S.W.2d 246 (1931), wherein the vaIiaity
ZfYflsfishing law was challenged on the ground that it was a local
or special law applying to a limited area of waters and was not
advertised for 30 days as required by Article III, Section 57.
The Court upheld the act as a general law, saying:
“The fish in the streams and coastal waters of
Texas are the property of the state, and no person
has any vested property right therein. Further-
more, the preservation of the wild game life of the
state, including the fish in its streams and coastal
waters, is a matter in which the people generally
over the state are interested. It follows that the
legislation here under attack is of general public
concern.
“It seems to be contended by Stephensen that
the instant law is local or special within the mean-
ing of the above-quoted provisions of our state Con-
stitution because its enforcement is restricted to a
l/ Reed v. Rogan, 94 Tex. 177, 59 S.W. 255 (1900); Stephen-
se119 Tex. 564, 34 S.W.2d 246 (Corn. App. 1931); Mc-
gee Irrigating Ditch Co. v. Hutton, 85 Tex. 587, 22 S.W, 967
(1893); Handy v. Johnson, 51 F.2d 809 (E.D. Tex. 1931).
,Hon. Rogers Kelley, page 6 (V-1171)
particular locality, and does not include all coast-
al waters. This contention is utterly untenable.
It is the settled law in this state that a statute is
not local or special within the meaning of sections
56 and 57 of article 3 of our state Constitution,
even though its enforcement be restricted to a
particular locality, if persons or things through-
out the state are affected thereby, or if it operates
upon a subject in which the people at large are in-
terested. Clark v. Finley, 93 Tex. 171, 54 S.W. 343,
345; Reed v. Rogan, 94 Tex. 177, 59 S.W. 255, 257:
Logan v. State, 54 Tex. Cr. R. 74, 111 S.W. 1028,
1029. The mere fact that the statuta- only mpe,r*.
ates in certain counties of the state does not make
it a local or special law. Likewise the mere fact
that this law only operates in the coastal waters of
certam counties, and does not operate in the coasf-
al waters of other counties, does not make It a local
or special law,” (emphasis ours)
In view of these authorities, it is our opinion that
House Bill No. 25, applying as it does to the Nueces River
and its tributaries, treats with a subject, matter of general
public concern and is not a local or special act, within the
meaning of Article III, Section 56.
Concerning the second question, it will be seen that
House Bill No. 25 does not, on its face, in any way concern the
right of eminent domain. However, the indirect result of the
application of the bill might restrict the right of eminent do-
main which was granted by the Legislature to the Lower Nueces
District. This, although the primary application of the bill is
upon the State Board of Water Engineers. The question thus
presented is, conceding this to be some impairment or some
limitation upon the district’s right of eminent domain, is it a
prohibited limitation?
It is well settled that the right of eminent domain is a
sovereign right which exists in the State. The right, being a
sovereign right of the State, may be exercised solely by the
Legislature in the first instance. 1 Nichols, Eminent Domain
18 (3rd Ed. 1950). The right of eminent domain, being a right
inherent in sovereignty, constitutional provisions concerning
eminent domain are said to recognize, limit, or regulate this
right rather than to confer it. 29 C. J.S. 781, Eminent Domain,
Section 3. Thi‘s sovereign power to take private property for
public use cannot be surrendered, alienated, or contracted
away, nor can the Legislature bind itself or its successors not
.
Hon. Rogers Kelley, page 7 (V-1171)
to exercise it. Any attempt so to do wguid be invalid. Hermaw
v. Board of Park Commissioners, 200 Iowa 116, 206 N.W. 35
J s 78~ K mment
v9L5) ; 29 c OS0 . Domain, Sec. 4. This ruie against
impairment of a so&reign right is likewise applicable to any at-
tempt on the pa-t of the Legislature to impair the right of emi-
nent domain. As stated in Trustees of Phillips Exeter Academy
v. Exeter, 90 N.H. 472, 11 A.2d 5bY (1940):
“As attributes of this sovereignty, it is recog-
nized th&t among the powers essential to the main-
tenance of government which cannot ‘pe alienated or
impaired, three important ones are the poiice po->:er,
taxation and eminent domain. That tte Constitution
recognizes them either expressiy or by necessary im-
plication does not signify their non-existence in the
pre-constitutional life of the state. , . .”
These expressions and rules seem to form the basis for
a contention that the right of eminent domain may not be impaired
by the Legislature even to the extent of enacting a statute condi-
tioning the right previously granted to a water supply district,
upon an affirmative vote of a majority of the people to be sub-
jeCteJ to a loss of property by the exercise of the power. The
law, however, seems to be to the contrary. It is well stated in
Randolph, The Law of Eminent Domain, pa 94 (li94j:
“There is no objection to condition the ex-
ercise of the eminent domain upon the action of
private persons. Thus, the petition of persons
within a defined class is often made the basis of
proceedings to lay out a highway, The construe -
tion of a public undertakin,g may be conditioned on
the assent of a certain proportion of property own-
ers affected, or upon the assent of a majority of
the electors within a county,”
A similar statement is found in Detroit Int, Bridge Co,
va American Seed Company, 249 Mich, zB9, 228 N.W, 79 (1930)
where It 1s staCFd:
“As eminent domain is an attribute of sover-
eignty the Legislature could have imposed any con-
ditions it pleased upon its exercise. c ~ **
There are cases from other jurisdictions in which the right of
eminent domain is specifically conditioned upon a vote of the
people to be affected thereby or by a vote of the people compos-
Hon. Rogers Kelley, page 8 (V-1171)
2
ing the entity to which the right was granted.
It thus seems to be well settled that when the Legisla-
ture grants the right of eminent domain, that body may condi-
tion the right upon a vote of the people to be affected by the
use of the granted right. In House Bill No. 283. Acts 51st Leg.,
R.S. 1949, ch. 159, p* 326, the Legislature created the Lower
Nneces River Water Supply District and granted it the right of
eminent domain, as follows:
“The District shall have the authority to ac-
quire all property real or personal which within
the discretion of the board of directors is needed
in accomplishing the objectives of the District and
to facilitate the requisition of property it shall have
all the powers of eminent domain available to water
control and improvement districts under the general
law.”
The Legislature, having been the source of the original grant of
the power of eminent domain, that body may, under the law, con-
dition the right upon an affirmative vote of the people to be af-
fected.
This opinion is limited solely to the question of the con-
stitutionality of House Bill No. 25. The question of whether pub-
lic interest calls for the enactment or rejection of this bill is a
matter wholly within the discretion of the Legislature, and no
opinion thereon is intended or to be inferred from the discussion
above ~
SUMMARY
House Bill No. No. 25 prohibiting the Board of Water
Engineers from issuing a permit for the building of any
dam on the Nueces River or its tributaries without the
consent of a majority of the taxpaying voters in any city
which may be inundated by the building of a dam, is con-
stitutional, and is not a local or special law within-the pro-
hibitions of Article III, Set, 56, Constitution of Texas. The
2/ Hamilton G. & C, Traction Co, va Parrish, 67 Ohio St. 181,
65 N,E, 1011 (1902); City of Albuquerque v; Huning, 29 N.M. 590,
225 F. 580 (1924); People v, Fort Jervis, 100 N.Y, 283 (1885);
Noonan Y, County of Hudson, 52 N.J.L, 398 (1890); Mills, Emi-
nent Domain, p0 179 (2nd Ed. 1888),
. .
Hon. Rogers Kelley. page 9 (V-1171)
bill does not impair the sovereign right of eminent
domain. This opinion relates solely to the question
of the constitutionality of House Bill No. 25, and not
to the question of whether the public interest calls
for the adoption or rejection of the bill, this being a
matter wholly within the discretion of the Legisla-
ture.
Yours very truly,
APPROVED: PRICE DANIEL
Attorney General
Charles D. Mathews
First Assistant
By J$L&+LJ
Everett Hutchinson
Executive Assistant E. Jacobson
Assistant
Price Daniel
Attorney General
E J:b