### Lower

Colorado

River Authorit ‘Littlei leld Bnllding Austln,Texae Gent1alwl: Attention: Mr. Gideon,General Counsel. OpinionBo.'



### O-3301 Re: Power of the City of I&no to oharge the Authority rental on its poles used In -iahlilg electric1Qhte.
We have carefully

considered

the validity

of the ordinance

passed by the City of Llano on December 9, 1940, which requiresthe LowerColorado River Authorityto pay rentalon the poleswhich it uses In the City of Llano in the distribution of electric

current.
In the letter

writtenby Mr. Gideon,your generalcounsel, you havs requested

our opinionaa tc whether this ordinance Is enforcible against the Authority.

The Act of the Legislature creatingthe Lower Colorado River Authority,

being Ch. 

### 7 of the Acts of the 

### 43rdLeglslattie, 4th Called Session,

p. 19, containsthe following salient

condition. It ia made~a 

### govarmaental

agencyunder the provisions of Sec. 59, ArticleXVI:'of the state Constitution.

The last sentencein Sec. lof said Act reads: "HothingIn thisAct or in any other sot or law contained, however,shall be conetzued as authorizing

the Districtto levy or collect taxes or assessmenta, or ta create any indebtedmae payableout of taxes or assessments, or In any way to pledge the oreditof the State." Section 2 of aaM Act reads: "Except as expressly

limited

by this Act, the Dietrlct shallhave and is hereby authorized to exercise

all paver, rl&t, privileges

and functions

conferred

by general law upon any dietriot

or dietriots

createdpursuantto Section 59 of Article

XVI of the Constitution of the State of Texas, * + * and it is authorized to exemlse the following powere,rights, privileges

and functions:. -

Lower Colorado

River Authority - page 2 (o-3301)

**“ (a).**  To developand generate water power and electric energy within the boundaires of the Dietriot

and to dietribute and sell water power and electric energy,

within or without the boundaries

of the Die@ict.; "(I). To conetzuct, extend, improve,

maintainand reoonstruct,to cause to be conatzucted, extended,

improved,

malntainedand reconstructed, and to ume and operate, any and all facllltiea

of any kind neceeeary or convenient

to the exeroiee of such powers,righta, privilegee

aad functiona."
Your letterstated that: "The Lower Colorado River Authority

- and operates within the City of Llano electriclightpoleswhich are situatedin the streetsand alleysof eaid city, and, therefore, oomeewithin the provisions of Section 1 of said or- ",~ dillame." The city ordinance referredto, a copy of which you enclosed, requlree

each organization

or corporation

maintaining

any telegraph,

telephone, electrlelight or other poles in the City of Llano to pay said city annually

for such privilege

a rental equal to threeper cent of its gross receipts,

The real question, therefore,

for detexminatlon

is whether the City of Llanc ten charge the State of Texas a rental for the use of the streetsand alleys

which are being used by eaid governmental agency to distribute

electric

current tc the inhabitants of said city,
In our Opinion

lo. O-2037>

datedMarch 28, 1940,addressed ti Mr. Sheppard,

Comptroller

of 'Public

Accounts,

we held that the property of the Lower Colorado

River Authority

was exempt from taxation, by reason of lte being a governmental agency. We enclose you a copy of said opinion.
In Robbinev. Limestone County, 114 Tex. 

### 265, 268 S.W. 915, the SupremeCourt of Texas, in an exhaustive opinion,

held that all publicroads in the State of Texae belange&to the sovereim state, and that the State had full controland authority over same. In 44 C. J., 925, in discussing the power of cities to control the streete,

the rule is thus stated: 

### “(3677)within federalend state constitutional imitations, the Legislature

a8 representative

of the statehas power to OOnt.rOl and regulatestreets in any way not inconeietent with theirproper uee* * * Q The power of the Legislature to regulatestreets has been classified

aa part of the policepower, * * *Lower Colorado River Authority - Page 

### 3 (o-3301)

“(3679) Strictlyspeaking, a municipality

haa no original or inherent

power tc controland regulateita atreels."
In 44 0. J. 

### 976,

par. 3770,the followiag hqfuage le ntlsebt "(a) The etate"s

power to grant the we of streets being euprene

within oonetltutlonal limitations,

It may exercise such power against the muuiclpality's dissent." Section 10 of the ordinancein question providesthat if the Lower Colorado

RiverAuthority

falls to pay the rental, it shall,upon conviotion,

be fined in any sum not to exceed $100.00for each day, and providesthat each day &la11 be deemeda separate offense. In our opinion, the Cfty of Llano, a municipal corporation,

organized

under the authority of the LegPslature, cannot inflict

and collecta fine from the State of Texas for the use of the streete and alleys in said city which are owned and controlled

by f&e State of Texas. In City of Arlington v. Lfllard,294 S. W. 829, the Supreme Court, in answering certified

questions,

held an ordinance

passedby the City of Arlington

waa void,which prohibited the operation

for hire of motor busses over and upon certain streets in said city, and used the following

languages 

### "(3) We think the power sought tc be exercised here is inconeistentwftb

generalstatutes,

and has not been delegated to the cities,at least that ft is very doubtful; and the rule as stated in 28 6. J. ps 

### 265 Is thats "Where a particular power fs claimedfor a municipal corporation

* * + any fair, reasonable doubt as to the existence and poaeession

of the power w¶.l.P

be resolved

against the corporation,and the power denied to it,' Brenbamv. Brenbem Water 

### Co. 67 Tex, 

### 542."
In City of Fort Worth v. LilPard, 294 S. W. 

### 831, the Supreme Court, in holding invalfd an ordinance

passedby the City of Fort Worth, which prohibited

the use of the streets by those carrying

passengers

for hire, used this language:

"In en opinion

delivered

today in the case of City of Arlington

v. Lillard,294 9. W. 829, this court held that the city is withoutpower tc prohibitthe uee of its streets to those carrying

passengers

for hire." in Weslt

V* City of Waco, 294 S. W. 

### 832, the SupremeCourt, in upholdingan ordinance of the City of Waco, which prohibited the uee of the public square for private business,

used this language: ~'..

.Iower CoPoraao Rlwr Auticzit~

D Page k

“ (I) The hfgbmyn of the Stat+a# hohUng streets of eltfea,

belong to %e State, ared the State hae’

33111 contml and authorfty over then. l?ney

Oare the prcgerty Of &na for the IaBe

oaf the state,which, tIWou& itm Legfslature,

has abec??oPte eowb~~‘l QV%P wame,which tmm.mP it may or may not9 frcm time to t,Ime delegateto the local authorftfes.U”
In our opinfom,tkm City of Llano doea not haye the power tc require the Lower Cclcradc laivo~ Aa+JnoPtyy

uhich is a governmentsal agency,to pay rental for Uhe ur3e Or t&e etreets fra

said efty.

m-m-da APPROVBDAPR 18, 15~41 /a/ Grover Sellers
FIBT ASSISTART ATl!CIWYGElW.RAL