State Board of Water Engineers

Austin, Texas Attention: Mr. J. E. Sturrock Gentlemen: OpinionNo. O-1993 Re: Constitutionalityof Article 7500a,V.A.C.S., and the validity of the proviso contained in Section 16, Ch. 88, General Laws, 35th Legislature; overruling letter opinions of the Attorney General, Stone, July 31, 1925 and Clark, May 20, 1927; and adopting letter opinion, Stone dated July 18, 1925 and Clark, dated May 20, 1927, and conferenceopinion, Smedley dated August 25, 1917.

We have your letter of February 21, 1940, End its enclosures, requesting that we answer the followingquestions:

"1. Is Article 7500a,Vernon's Revised Civil Statutesvalid?

"2; If Article 7500A is void, is Section 16, ‘Ch.88, General Laws, 35th Legislature, the law?"

You encloseda Conference Opinion of this Departmentdated August 25, 1917, written by Honorable G. B. Smedley,Assistant, to the Secretary of the Board of Water Engineers,hereafter referred to as the Smedley opinion. It holds that the proviso contained in Section 16, Chapter 88, General Laws, 35th Legislaturedoes not give a landownerpermission to impound
or use without a permit, the water impoundedby a dam or reservoir constructedon his own land,but that itmerely gives suchperson the right to construct such a dam or reservoir without submittinghis plans to the Board of Water Engineers for approval.

Also enclosed,were ccples of letter opinions of this department given the Board of Water Engineers as follows:. .

State Board of Water Engineers,page 2 (O-1993)

July 18, 1925, C. L. Stone; July 31,’ 1925, C. L. Stone; May 20, 1927,Allen Clark; and August 27, 1927,Allen Clark. These will be referred to as the first and second Stone opinion and first and second Clark opinion respectively.

The first Stone opinion and the first Clark opinionboth hold Section 5 (Article7500aV.A.C.S.) Ch. 136, General Laws of the 39th Legislature (the 1925 Act) unconstitutional,because of the irreconcilableconflictbetween the caption of the 1925 Act and said Section5. The second Stone opinionholds that Section 16 of the 1917 Act was expresslyamendedby Chapter 136, General Laws of the 39th Legislature, that Section 7, Ch. 136, General Laws of 1925, 39th Legislature,provides for the repeal of all laws in conflictwith theprovisions of said Section and Chapter, and that, therefore,no law exists authorizing a person to construct on his own property a dam or reservoirto impound and containwater in any amountwithout securinga permit therefor. The first Clark opinion also holds that Section 5 of the 1925 Act being unconstitutional,it does not effecta repeal of the troviso contained in Section 16, then contained in Article 7 96,V.R.C.S., as it readprior to the passage of the 1925 Act now contained in the Historical Note to Article 7496,V.A.C.S. in the new volume 21 of the Vernon's Annotated Civil Statutes. Thus, the second Stone opinion and the first Clark opinion are in conflict.

The second Clark opinionholds that, inasmuchas the attempted amendment contained in the 1925 Act is void, the proviso contained in Section 16 of the 1917 Act, is si.311 in effect; and that it authorizesa person owning lands to impound less than 500 feet of water on his own propertywithcut securinga permit therefor from the Board of Water Engineers. 'This opinion makes no reference to the Smedley opinion and the two are in direct conflict. The Medley opinionbeing a conference opinion takesprecedence over the Clark opinion and is, in our opinion, correct.

In addition to answeringyour questions,we will eliminate these conflicts.

The proviso contained insection 16 of the 1917Act reads as follows:
I, .provided,however, that nothing in this sectionor in this Act shall affect or restrict the right of any person or persons, owning lands in this State to construct on his own property any dam or reservoirwhich.

State Board of Water Engineers,page 3 (O-1993)

would impound or contain less than five hundred acre-fcet?of,water."

For a proper understandingof the problem, it is necessary to quote at length from the 1925 Act:

"S.B.No. 349 Chapter 135 An Act relating to the appropriationand use of water and providing that suchwater mav. in addition to other-uses,be appropriatedand used for purposes of public parks, game preserves, recreation and pleasure resorts,power and water supply for Industrialpurposes and domestic use; amending Section 16, Chapter 88, Acts of the Regular Session of the Thirty-fifthLegislature,providing for the filing of presentationsrelating to Investigationof the
use of water and the terms and conditions thereof, that priority of right dates from the filing of same, that such rights shall extend for a period of sixmonths andmay be extendedby order of the Board of Water Engineersnot to exceed a totalperiod of three years and the requisites, conditions and operationof same; providing that the' fees paid upon the filing of a presentation may be held'for~theterm thereof or during the period of any extenslon'thereofand be handled according to law, and that all rights under a presentation shall cease at thelend of the term thereofunless a permit is is- ‘suedin pursuance thereof;

. . .providingthat any onemay construct on his own property a dam or reservoir to contain not to exceed fifty acre-feet of water without securinga permit therefor;

. . .
"Sec. 2. Amend Section 16, Chapter 88, Acts of the Regular Session of the Thirty-fifth Legislature, so that same shall hereafter read as follows:

I,

. . . “Sec. 5. Any one may construct on his own property a dam and reservoir to impound or containnot to exceed two hundred and fiftyState Board of Water Engineers,page 4 (O-1993)

acre feet of water wiLha:.ut the necessity of securinga permit therefor.
11

. .
"Sec. 7. All laws in conflictwith the provisionshereof are hereby repealed." (Underscoringours).

The first Stone opinion and the first Clark Opinion are in accord in holding Section 5 of the 1925 Act (Article75OOa, V.A.C.S.) to be in contraventionof Article 3, Section 35 of the Texas Constitution,and void, because the caption, which provides for fifty acre-feetand the body of the bill, for two hundred and fifty acre-feetare in irreconcilable conflict. We adopt the first Stone and first Clark opinions to this extent and your first question is answered in the negative. Ft. Worth and D. C. Ry. Co. v. Loyd, 63 Civ. 47, 132 S.W. 899 (errorrefused B App. ; Sutherlandv. Board of Trustees (Civ.App.) 261 S.W. 4 9 (errorrefused); Ward
v. State, 102 Crim.Rep. 204, 277 S.W. 672; 39 Tex. Jur. 100. The reasons for this holding aremore fully set out under our discussionof your secondquestion, as the preliminaryproblems arising out of both are very similar.

The caption of the 192.5 Act expressesa generalpurpose, as Indicatedby the underscoring; It names Section 16 of the 1917 Act as one of those amended, an? sets out the subject matter of the amendment in detai:l. 'Thecapt,ion does not state **that** Section 16 is expresslyrepeal&; whether it
was so intendedmust be determinedbefcreyc:ursecondquestion ‘can

be correctlyanswered. Section 5, yroFerly construed, covers the same subjectmatter as th;+ proviso oft Section 16. Apparently, t,he Legisle"ure intended that Sec5 should take the place of the proviso I and tha,ti,tshould repeal thatmuch of Section 16, WJ vi.rtueof Sect?-on 7, the repealing clause of the 1925 Act.

Section 5 beingvoid, it cannot, have the effect of repealing theproviso. It is a nullity and has no more effect than if it had never been passed. ConsolidatedUnderwritersv. ;it;by4vTber Co. (Corn. App.) 267 S.W. 703, (revising250
565; Culbersonv. 39 $ex. Jur. 128. Ashford, 118 Tex. 491, 18 S.W. (2d) Lewis" Sutherland Statutory Construction,Sec. 245; barshallv. State, 62 Crim. Rep. 177, 138 S.W. 759. Therefore, the second Stone opinion, holding that Section 5 repealed the proviso is in error and is hereby overruled.State Board of Water Engineers,page 5 (O-1993)

From their opinions, it appears that neitherMr. Stonenor Mr. Clark considered the question of whether or not Section 2 of the 1925 Act, which set out at length the amended Section 16, repealed Section 16 as written in the 1917Act. This is themost difficult of all the questions involved, for the case of State v. Andrews, 20 Tex. 128 squarelyholds that "an amendment operates to repeal any provision of the original act or section that is omitted." 39 Tex. Jur. 128. The act considered in the Andrews case amended a former act by providing that its first section "shallhereafter read as follows," which is the identicalwording of Section 2 of the 1925Act, Section 2, in amending Section 16, likewisemade
an omission, the proviso.

However, in our opinion, the proviso was not repealedby Section 2 of the 1925 Act, first, because the rule of the Andrews case seems to have been restrictedby the later cases, and second, if suchwas the intention of the Legislature in enacting the 1925 Act, the caption ismisleading in that, although it particularly sets out the contents of Section 16 as amended, it fails to give notice that the proviso is omitted or repealed; and further, it fails to point out that Section 2, purports to replace Section 16 and repeal the omittedportions. In fact, a contrarypurposewas expressed in the captionnamely, not to abolish the right to'constructa dam on private property, without submitting plans to the State Board of Water Engineers,but to reduce from 500 to 50 acre-feet, the impounding capacity of the dam which couldbe so constructed.

The caption of the Act considered in the Andrews casemerely contdined referencesto the acts and sectionsamended; the distinction is that it did not go farther and set out with particularity,the contents of the amended section,as does the caption of the 1925 Act. In this regard,we quote and adopt the followingpertinent language from the case of Rodgers v. Tobias, (Civ.App;) 225 S.W. 804 (errorrefused), similaron its facts, which held the Act there in question violative of Article 3, Section 35 of the Constitution, for the want of an adequate caption:

"It cannot therefore be given the effect of a mere simple reference in a general way, but would be interpretedby the rule that 'themention of
one thing is the exclusion of another'.

. .The title here having gone beyond a simple reference to the prior law, in that it specifies the parti-State Board of Water Engineers,page 6 {O-1993)

cular field the amendmert is to cover,will nat be held ts furniE,L tkie p'r,:per

l?glslat:l.ve

>relude to an act dealingwith a wl-ally different subject.

. ."

To the same effect, seeHolman v. Pabsf, 27 S.W. (2d) 340 (errorrefused); Ward Cattle and Pastare Co. v. Carp;tnter, log Tex. **103,** 200 S.W. 521, affirming **168 S.W.**  **408;** Adams
v. San Angelo Waterworks Co., 86 Tex. 485, 25 S.W. 605; 39 Tex. Jur. 103.

The 1917Act, Article 7466, V,A.C.S. declare-l certain.

public rights and dutieswith respe,:t tz i;he

conservationof the public waters and proceeded tc regulate their use. The proviso of Section 16 of t5e Ac% reserved to the landowners
a certain right or privilege. Ifby the 1925 Act, the Legislature intended 'co abolish this right or privilege, it should have said so in clear language,giving reasonablenotice in the caption. In our opinion, it did not do this; it, did not complywith the requirementsof Article 3, Section 35 of the Constitution.

The effect of an omission, similar to t:hs ene here, wa.sconsidered in the case of Chapmanv. Morrison et a?., 278 S.W. 236 and we adopt Juc7-ge Fly's language .wit;h reference to the caption:

'No reference ismade to chang:lng **t&r** a.rtlcle
so as t;o

destroy an importart; privilege of the citizen enjoyed byhim ever sive -thestate came into existence. T.f it w-s ::he +r,,tsnt:icn t.3destroy that,

privilege, then t:hef"ctiPe 1,s.:lea,rly ‘unconstitutional,in that ti:etit1.e3,ces net state that **Me air?**  wa.s pa.sse'-i-c

"e5t'rc.y

tJ-1+$ right.

. .'
Judge Fly's opini_on was cite-l

an'. P~:llrwe;!

.inthe cases of Globe IndemnityCc. v. Barnes, 280 S-W, 275, affirmed 288 S.W. 121; Tasbut:tc;n v. M'brig, 282 S.W, **891 and**  Rumble Oil and Ref. Co. v. Anirews, iciv.App.11279 S.W. 300, all of which involved **the** same statute. Also, see Lone Star Cas Co. v. Birdwell, (Civ.App.) 74 S.W. (2d) 294; Holman v. Pabst, supra; 39 Tex. Jur. 104.

Section 2 of the 1925Act provi-les that;Section 15 "shall hereafter read as follows" and omits t,he proviso. However, the caption did net state that Section 16 should "hereafterread" as set out in the Act. They are in con-State Hoard of Water Engineers,page 7 (@-1993)

flict to this extent,. If the captionhad merely st,a+ed that Section 16 of the 1925 Act was amended,we would feel bound to hold the caption sufficientand the words "hereafterread," contained in the Act, sufficientto effect a repeal of the proviso. State v. Andrews, supra. But, such is not the case, as heretoforepointed out.
Summarizing our holding,you are respectfullyadvised:

1. That Article 7500a,V.A.C.S., Section 5, Ch. 136, GeneralLaws of 1925, 39t.h Legislature is unconstitutionaland that the letter opinions of the Attorney General so holding, dated July 18, 1925 and May 20, 1927,written by C. L. Stone and Allen Clark respectively,
are hereby adopted;

2. That the proviso attache3 to Section 16, Ch. 88, Gen.eral

Laws of 1917, 35th Legislature, and which is to be found in the Historical Note to 7496, V.A.C.S. was not repealed by Section 2, Secticn 5, or Section 7, Ch. 136, General **Laws** of 1925, 39th Legislature and that same is now in full force and effect; and, that the letter opinion of the Attorney General, soholding, dated May 20, 1927, is hereby adopted;

3. That the letter opinion of the Attorney Generalwritten b,yC. L. Stone and dated July 31, 1925, is expressly overruled and withdrawn; and

4. That the conferenceopinion of this department dated August 25, i917, written by Hon. G. B. Smedley, constru?n$ the proviso contained in Section 16 is hereby adopted, and the letter opinion of the Attorney General dated August 27, 1927, written by Allen Clark,which is in conflictwith the Smedleyopinionis hereby overruled and withdrawn.

JN:eaw Yours very truly, ATTORNM GENERAL OF TEXAS

APPROVED MAY 8, 1940
ATTORNEY GENERAL OF TEXAS By James Noel Assistant