THE ATTOECNEV GENERAL
OF %kXAM

Honorable Cecil M.Pruett County Attorney Hutchinson County Borger, Texas 79007 Opinion No. M-380 Re: Power of county to require utlllty companies to relocates poles and lines on public rlghtsof-way under Municipal Airports Act. Dear Mr. Pruett: Your request for opinion presents the following question: "Does Hutchinson County have the power to require Southwestern Public Service Company, acorporation engaged in the transmission and sale of electrical energy In Texas, and Southwestern Eel1 Telephone'Company, acorporation engaged in local and long distance telephone service, to relocate their poles and lines without expense to the County in connection with the County's program of expanding Its airport facllltles In order that such lines located on a ,~ public road and State Highway In the city of Borger and Hutchinson County will not constitute ahazard to airplanes taking off and landing upon the expanded runways of the airport?" In support of your request, you relate the following facts: "The air approach to and from one of the expanded runways passed over atraffic circle in the City of Forger and aState Highway traversing along such traffic circle, " along with other streets in the City of E!orger

... The lines In question were partially In andpartially out of the City of Borger. Aportion of the lines of each company hadbeen obtained byprivate easement from private parties before the roads or highways were established. Hutchinson County was the governmental agency which owned,. maintained andhad charge of the constructipn of the alrport, as well as the facilities involved In the expansion program. It alone requested the relocation andremoval of the lines." It also Is madeto appear that the poles and lines in question existed before the airport expansion and that they apparently did not con- -1878-Hon. Cecil M.Pruett, Page 2 (M-380)

stitute anairport hazard prior to the expansion. Despite these considerations, however, it is the opinion of this office that Hutchlnson County mayrequire the relocation of the utility poles and lines located upon city streets, state highways, and county roads without expense to the county subject to the qualification hereinafter set out except that the county maynot do so In those situations where the poles and lines are located onprivate easements, obtained from private parties before the roads or highways were established, and which easements have not heretofore been purchased or taken byeminent domain bythe state or county. Thepower of the county to compel the removal of an “airport hazard” is set forth in the Municipal Airports Act, Articles 46d-1,through 46d-22, Vernon’s Civil Statutes. In Article 46d-1, a “municipality” j~sdefined as including a “county”

. Article 46d-2 provides that:

“Every municipality is authorized,

... to

... regulate, protect andpolice airports and air navigation facilities, either within or without the territorial limits of such

Article 46d-15 provides that:

“The

.*. regulation, protection andpolicing of airports and air navigatlon facilities, including the acquisition or elimination of airport hazards, and the exercise of any other powers herein granted to municipalities andother public agencies,

... are hereby declared to bepublic and governmental functions, exercised for apublic purpose, and matters of public necessity; and In the case of any county, are declared to be county functions andpurposes as well as public andgovernmental;

... ” (Emphasis added] Not only does the above statute render the operation of the airport apublic andgovernmental function: it was so held in the case of City of Corsicana vs. Wren, 159Tex. 202, 317 S.W.2d 516 (1958). A county Is possessed of police powers and mayreasonably exercise the samein its proper jurisdiction. 20C,J.S. 869, Counties, Sec. 92. Bythe reasonable exercise of its police power, it possessed the power to require the necessary utility relocations.

-1879-Hon. Cecil M.pruett, Page 3 (M-380)

Asto the installations located on easements procured from private parties, andwhich easements have not been subsequently acquired bythe State as apart of the public rights-of-way,,the corporations in question are clearly entitled to relocation compensation. ,323 S.W.2d 471 (Tex.Civ.

. Highway Commisnctlon exists involving installations located In the highway and street rights-Af-way, the same being regulated by statute and subject to the reasonable exercise of the police power, an inherent sovereign power. cf. Attorney General Opinion Nos. WW-1090(1961) w-961 (1960), andWI-1004 (1961). It also should be here observed that aright of easement only is involved, and amaterial distinctlon must be drawn as to the nature of the property right involved, between the mere right of aneasement for utility lines, anda compensable vested property right arising under afranchise, which Is agrant and acontractual right. 25.Tex.Jur.2d 599, Franchises, Sec. I; p. 600, Sec. 2. Theright of the telephone company to use highway and road rlghtsof-way has been conditioned byArticle 1416, Vernon's Civil Statutes, reading as follows: "Corporations created for the purpose of constructing and maintaining magnetic telegraph lines, are authorized. tomset their poles, piers, abutments, wires and other fixtures along, upon andacross any of the public roads, streets andwaters of this State, in such mariner'''' not ." to incommode the public in the use of such roads, streets andwaters." (Emphasis added) The right of the electric utility company to the use of such rights-of-way has been conditioned byArticle 1436a, Vernon~'s'Civll Statutes, reading, in part, as follows: "Co f;porations

... engaged in the generation, transmission and or the distrtlution of electric energy in Texas

... shall have the right to erect, construct, maintain and operate lines over, under, across, upon and along any State highway or county road in this State, except within the limits of an incorporated city or town;

... and to erect, maintain and operate lines over, across and along the streets, alleya and other public property in any incorporated city or town in this State, with the consent, andunder the direction of the governing body of such city or town

... Any'such corporation shall notify the State Highway Commission, or the Commissioners Court having jurisdiction, as the case maybe, when it proposes to build lines along the right-of-way of any State Highway, or county road, outside the limits of an incorporated city or town, -1880-Hon. Cecil M. Pruett, page 4 (M-380)

whereupon the Highway Commission, or the Commissioners Court, may, if It so desires, designate the place along the rightof-way where such lines shall be constructed. Thepublic agency having jurisdiction or control of ahighway or county road,

... mayrequire any such corporation, at its ownexpense, to relocate its lines on aState highway or county road outside the limits of an incorporated city or town, so as to permit the widening of the right-of-way, changing of traffic lanes, improvement of the road bed, or improvement of drainage ditches located on such right-Of-Way bygiving thirty (30) days' written notice to such corporation and specifying the line or lines to be moved, and indicating the place on the newright-of-way where such line or lines maybe placed

... andthe governing body of such city or town mayrequire any such corporation, at its ownexpense, to re-locate its poles and lines soas to permit the widening or straightening of streets, bygiving to such corporation thirty (30) days' notice and specifying the newlocation for such poles a;d lines along the right-of-way of such street or streets. (Emphasis added.) Obviously, the corporations in question maybe compelled to remove at their ownexpense their installations located In public rights-ofwaywhenever such location is madenecessary byhighway improvements. While sustaining the constitutionality of a statute authorizing compensation involving relocation of interstate highways, the Supreme Court of Texas in State of Texas v. City of Austin, 331 S.W.2d 737 (Tex. Sup. 1960) has clearly recognized that the companies could be forced to remove their lines, because of highway improvements, at their ownexpense in the,absence of an "assumption" bythe state of -- the expense. The Court said: I,

. . .While public utilities mayuse the same fioads and streets-7 for laying their lines, such use is subject to reasonable regulation byeither the state, the county or the city, as the case maybe. Theutility mayalways be required, in the valid exercise of the police power byproper governmental authority, to remove or adjust its Installations to meet the needs of the public for travel andtransportation. It

. *

.The Legislature acting for the State has primary andplenary power to control and regulate public roads and streets. It maydelegate that power to counties or municipal corporations." 331 S.W.2d 741. In reaching the conclusion that in the absence of a stat.ute assuming liability for compensation, Texas will adhere to the commonlaw rule, the Court further declared:
-1881-. .

Hon. Cecil M.Pruett, page 5 (M-380)

"Compensation is not required to be madefor damage or loss resulting from avalid exercise of the police power. See State v. Richards, 157Tex. 166, 301 S.W.2d 597, andauthorities there cited. Theabsence of acause of action does not, however, reduce the loss which individuals are often required to bear or maketheir injuries any less real

...' 331 S.W.2d 743. In addition to the above authority, webelieve that the City of San 388 S.W.2d 231 (Tex.Civ.App. 1965# error ref., n.r.e. banAntonio v. Hexar Metropolitan Water Dist., 309 S.W.2d-491(Tex.Civ.App. 1958, error ref.) also support the power to require the relocation in order to support public surface andair travel on or above highways. Thus, even without statutes, such a&our Articles 1436a and 1416,' involving relocations for highway purposes, the commonlawwhich Texas has adopted leave the utility companies in the sameposition of having tombear the relocation costs. (1957), Attorney General Opinion No. WW 45 citing numerous authorities, including Southern Hell Tel. & Tel. Co. v. Commonwealth, 266 S.W.2d.308, 310-311 (Ky. 1954), in which the Court said: "Aside from the express provisions of the grant, wethink there is aclearly implied condition that appellant may be required to remove and relocate its facilities when such removal andrelocatio; are in the interest of public convenience or safety

... Numerous authorities from throughout the country are there cited in support of the statement. In Texas, Articles 1016, 1146, and 1175, Vernonts~ Civil Statutes, grant to the cities the control and the police 'power over the. streets within their boundaries. Articles 6674w-1 and 6674w-5, VernonIs Civil Statutes, grant to the Highway Commisslon such power over State Highways within or outside the limits of any such city, andthe exercise-of such power qualifies andrenders inexclusive the dominion of any city with respect to specific streets, alleys or other public ways thereby affected. State v. City of Austin, supra, at page 741. Wesee nodifference in whether the relocating of these facilities was occasioned byroad improvements or byairport improvements, both being governmental functions of the county (as distinguished from proprietary) andavalid exercise of the police power of such county with no question of paramount rights involved. In Attorney Caneral's Opinion 

### NO.O-2978 (1941), this office expressed such opinion in regard to electric power poles and lines some

-1882-, ,

hon. Cecil M.Pruett, page 6 (M- 380)

eight years prior to the original passage of Article 1436a (Acts 1949, 51st Leg., p. 427, ch. 228). Wefind no statute similar to Article 6674w-4, applicable here, that would require the payment byall counties In this state of the expenses Incurred in the relocating of utility poles and lines, occasioned byavalid exercise of the police power under the Municipal Airports Act. It Is the understanding of this office that the Federal Aviation Administration has taken the position that unless the State law requires the county to pay for these relocating expenses that matching federal funds are not available under 49 U.S.C. 1112 (a) (1) as "anecessary cost incurred," because it is not necessary to pay for that for which you donot have to pay. Likewise, the portion of Article 46d-2, hereinbefore quoted, authorizing the purchase of such easements or other Interests 'as are necessary", could hardly be authorizing, muoh less requiring, the expenditure of funds for such relocating when, under the existing law of this state, they mayberequired to be removed in the valid exercise of the police power without expense to the county. Inview of the foregoing, weare unable to construe Articles 1416 and 1436a in such awayas to form some sort of contract, whereby the utility companies derive avested property right In the placing of their poles andlines, so that if they later Incommode the public In other ways than highway improvements Incident to surface travel, the county or state is absolutely required to compensate such utility companies for removal costs. Wefind noambiguity in the statutes to require aresort to construction. These statutes merely are anexpression of the public policy of the state as it existed at the time of their adoption. State v. City of Austin, supra, at page 741. Theenumeration of the purposes, above quoted, In Article 1436a would not exclude all other purposes or reasons requiring relocation under the expressio unis rule of statutory construction. This rule is only applied where because of ambiguity such acanon of construction becomes necessary to enable acourt to determine the intention of the legislature. It Is not applicable where the legislative intention is disclosed bythe entire act, or when its application will not aid the court In ascertaining'and giving effect to the legislative intent, as in the situation presented here. 53Tex.Jur.2d 206-208, Statutes,Sec. 142. Wecannot, by construction of the statutes In question, hold that the state legislature intended by implication to
-1883-. .



### Eon. Cecil M..Pmett, page7(M-360)

contract away th8 police power of the stat8 or it8 poll~ical subdivisions. Clt 

### ofOarLand v. Texas Power and Light Co., 342 S.W. 2d81d (Tex. clv. App. 1961, nowrit), from which we

### quote, in part:

19 Werecognize that ‘the grant byamunicipallty*to apublic service company 

### ofthe right to use streets does not divest the municipality of its police power over the grantee in relation to its use of such

12McQuillin, Municipal Corporations, Fran* However, ‘it is elementary that an exe&e of the police power, in order to be valid, must bereasonable; unreasonable regulations cannot be sustained under the power.’ 12McQuillin, MtwZLcipal Corporatlone, Franchises, B34.75. Nor can tne ’

police power be used by the city to deprive the franchise holder of any essential rights and privileges acquired thereunder. Northwestern Telegraph Exchange co. v. citv of Minneancrist tll Minn, 140. 83N.wb52-T, b6 N.W. 69, 53 L.R.A. 175.’ We,conclude that Articles 1416 and 1436a merely set out a limited authorization to

### place these utility lines on the rights-of-way and cannot be construed to limit the police power of the state, county, or municipality. Article 46d-l(c) andArticle 46@-1 define an “Airport hazard” as any structure which obstructs 

### airspace. Article 46d-15 provides that the eajminatlon of airport hazards are public and governmental fur&ions. Article 466-2 declares anairport hazard ~tobe a public nuisance and their prevention “shouQd/beaccomplished, ’ to the extent legally possible, byCxescise of the police power, without compensation.” It does not appear from the facts furnished just where, under Article 143&, the county indicated “the place on the right-of-way where such Line or lines maybe placed.” Assuming that this statutory provision was followed, wehold that the removal requirement was areasonable exercise of the police power, and the utility cornpan%@&must bear the cost of relocation of their lines. .Onthe other hand, if the utility companies were not afforded such anewlocation, then such removal requirement might constitute anunreasonable exercise of the police power, and, if so, the 

### county would be liable to

### paythe cost of removing the lines andpoles of the 

### uti3.ity companies. SUMMARY

I Under the facts submitted, Hutchlnson

County has the power to require the relocation of telephone andutility 

### poles and lines constltuting “airport

-1884-

### Hon.Cecil M.Pruett, page 8 (M-380)
hazarda," and the neceesary and reasonable coat ,of relocation is 

### not required tobeborne bythe county.

Prepared by HoughtonBrownlee, Jr. AsBi6tant Attorney General APPROVED: OPINIOI COMMITTEE 

### KernsTaylor, Chairman George Kelton, Vice-Chairman RogerTyler MonroeClayton WoodrowCurtis BobCrouch Dyer~MOore,Jr. Louis Neumann

w.V. Geppert Staff ’ Legal Assistant HawthornePhillips Executive A8sistant

-1885-