OBEY GENERAL OF TEXAS

Honorable 0. Kennedy CountyAttorney Bee County ~' Beevllle, Texas
Dear Sir: OpinionNo. 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: "Approximatelyforty five years ago a woman who was born ana raised Fn this countymarried an alien. Rer husbandwas 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 certainmembers of one~of our rural communities to build a telephone line from the county seat to such community. The 1Lne vas immediately constructedand continued in operationuntil very recently. The countygranted 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 lightwires were put In use, they killed completely the telephone 1Fne and the telephone line cannot now be used because of the electric llne. It 1sadmitted 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 improvements and changeswould 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 Indamages to the people owning the telephone line by reason of the countyHonorable 0. Kennedy, page 2 O-2318

having first granted a franchise for the construction of the telephone lines and later granted a franchise to another company to construct the electric light linewhich killed ana rendered useless the telephone line.

By the Federal Constitution,Article 14, Section 1: "Allpersons born or naturalized in the UnLted States, and subject to the jurisdictionsthereof,are citizens of the United States and of the StatevhereIn they reside." Section ,lof Title 8, U.S.C.A.,provides that:
"Allpersons born in the United States and not subject to any foreignpower are declared to be cltFzens of the UnIted States." Section 9, Section 9a and Section 17a of Title 8, U.S.C.A.,read as follows:

"Section9. SAME; CITIZENSHIPOF WOMEN CITIZENS OF UNITm STATES AS AFFECTED BY~MARRIAGE. A woman citizen of the United States shallnot cease to be a citizen of the United States by reason of her marriage after March 3, 1931, unless she makes a formal renunciation of her citizenshipbefore a court having jurisdictionover naturalization of aliens." "Sectionga. SAME; REPATRIATION OF NATIVE-BORN WOMEN MARRIEB TO ALIENS PRIOR TO SEPTEMBER 22, 1922; COPIES OF PROCEEDINGS. 'AfterJune 25, 1936 a woman being a native-born citizen,who has or is believed to have lost her United States Citizenship (sic) solely by reason of hermarriage prior to September 22, 1922, to an alien, and whose marttal statuswith such alien has or shall have termtnated, shallbe deemed to be a citizen of the Unlted States to the same extent as though hermarriage to said alien had taken place on or after September 22, 1922: Provided,hov m, that no suchwoman 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 jurisdictionof the UnitedStates before a court exercisingnaturalization jurisdictionthereunder or, outside of the jurisdictionof the UnitedHonorable 0. Kennedy, page 3 o-2318

States, before a secretary of embassy or legation or a consular officeras prescribed in section 131 of Title 22; and such officerbefore whom such oath of allegiance shallbe taken shallmake entry thereof in the records of his office or in the naturallzation records of the court, as the casemay be, and shalldellver to such person taking such oath; upon demand, a certified copy of the proceedings had lncludlng a copy of the oath administered,under the seal of his office or of such court, at a cost not exceeding $1,which shallbe evidence or the facts stated,

thereinbefore any court of record of judicial tribunaland ln any department of the United States." (Underscoring Italics) "Section17a. SAME; MARRIAGE TO FOREIGNER.A citizen of the Unlted States may upon marriage to a foreignermake a formal renunciation of his or her United States citizenshipbefore a court having jurisdiction over naturalization of aliens, but no citizenmay make such renunciation in time of var. and ifwar shallbe declaredwithin one year after such renunciation then suchrenunciation shall be void." Alienage may arise in threewags; by a birth, by election, 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, itwas held that this sectionhad 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 categoricallyansweryour firstquestion. 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 complied with Section ga, Title 8, U.S.C.A., supra. On the other hand, If thewoman 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 citizenshipbefore a court having jurisdictionover 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 ineligible to citizenship,and would be entitled to vote unless otherwisedisqualified.

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, transportand sell gas, electric current and power to Individuals,the public and municipalities for light, heat, power and other purposes, and to make reasonable charges therefor; to construct, maintainand operatepower plants and substations and suchmachinery, apparatus,pipes, poles,wires, devices and arrangementsas may be necessary to operate such lines at and betweendifferent points In this State; to own, hold and use such lands,right ofway, easements, franchises,buildingsana structures as may be necessary for the purpose of such corporation."
"Art. 1436. RIGHT OF WAY.- Such corporation shallhave the right and power to enter upon, condemn and appropriate the lands,right of way, easements 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, interurbanrailroad, street railroad, canal or stream In this State, any street or alley of any lncorporated city or town in this State with the consent and under the direction of the governing body of such city or town. Such lines shallbe constructed upon suitablepoles In the most approvedmanner 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 casemay require."

In the case of McCULLOCH COUNTY ELJXTRIC CO-OP vs. HALL, 131 S. W. (2nd) 1019, among other things, itwas held that: "The law Is settled in Texas, the United States and in England that there Isno liability for induction and conductionwith a telephone line by a hlghpower transmission line, In absence of negligence, malice of unskilfulness on the part of the lnterferlng transmission line or agency; and no extendeddlscusslonneed be made of this question.

"Theabove conclusion of nonliability in absence of negligence Is predicatedupon the reasoning that where a right is common and unlversale,and capable of being exercisedby all at the same time, the ruleHonorable 0. Kennedy, page 5 O-2318

that hewho isprior inpoint of time Is prior in the fielddoes not therebygain a monopoly of use. In applying the rule courts have held that a telegraph company cannot recover damages for the mere construction of a power line so close to itsvlres that the Induction interfereswith their use," This case further holds in effect that if an electric company in bulldlng a transmission line paralleling the telephone line and could find no systemunless itwere metalllcized,and the electric company selecteda systemwhich was safer to,the public generally , the owner of the telephone system shouldbear expenses of metalllcizlng the telephone lines.

Itwas held in our oplnionNo. 0-1805: "Thatthe CommissionersCourtwould not have the authority to grant a franchise to the Central Power & L);ghtCompany to cover the County of Brewster, Texas.
We are enclosinga copy of this opinion for yowconvenience.

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: "TheCommlssloners'Court Is a creature of the State Constltutlon,and Ltspowers are limited and controlledby the Constitutionand 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 shouldbe pointed out that none of the above mentioned articles directly or indlrectlg, give the Commissioners'Court the power to izsuea 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 folloving language in regard to franchises:

"Tobe a franchisethe right must be of such a-. .

Honorable 0. Kennedy, page 6 O-2318

nature that,without express legislativeauthority, It cannot be exercised * * * The legislativedepartment of the government Is the source of the grant of a franchise + * * The legislature,unless constltutlonally inhibited,may exerciseauthorityby direct legislation,or through agenciesduly established, having power for that purpose."
It Is a well establishedrule that the Commissioners Courtmay exercise only those powers specificallydesigned by the Constitution or the Statutes; and the fact that a franchise is a very specialprivilege only given by direct legislativegrant or by specificallydelegated agency,we must reach the conclusion that the County Commlstiloners Court does not have the parer or authority to grant a county franchise to an electric company or a telephone company.

A county Is a body corporatewhich acts through its CommissionersCourt. The acts of the Court, therefore, In good faith performedwithin the scope or apparent scope, of the powers committed to Itunder the Constitutionand laws are the acts of the County. TX. JUR., vol. 11, p, 629.

One who deals with the county is chargedwith notice of regulations createdby the legislature;and a customwhich Ignores the law cannot be invoked for the purpose of valid&tlnga transactionwhich is othel*rlse invalid. TEX. JUR. Vol. 11, 640; GOSS v. FANNIN COUNTY, 244 S.W. 204.

In view of the foregoingyou are respectfullyadvised that It Is the oplnlon of this department that the Commissloners Court of Bee Countydid not have the legal right or authority to grant a franchise to the telephone company or to the power company, and suchunauthorized acts of the Commlssioners' Courtwould not be acts of the county. Therefore, Bee Countywould not be liable for damages to people owning the telephone linewhich was rendered useless by the construction& operation of the power line.

Trusting that the above fully answersyour inquiry,we are AW:ob:vc Yours very truly ENCLOSURE ATTORNEYGENERAL OF TEXAS
APPROVED JULY 1, 1940 By s/ArdellWllll~ms s/Gerald C. Mann drdell Wlllitims ATTORNEY GENERAL OF TEXAS Assistant Approved Opinion CommitteeBy s/BWB Chairman