Lower Colorado River Authorit 

‘Littlei leld Bnllding 

Austln,Texae 

Gent1alwl: Attention: Mr. Gideon, General 

Counsel. 

Opinion Bo.' O-3301 

Re: Power of the City of I&no to 

oharge the Authority rental 

on its poles used In -iahlilg electric 1Qhte. 

We have carefully considered the validity of the ordinance passed 

by the City of Llano on December 9, 1940, which requires the Lower Colorado 

River Authority to pay rental on the poles which it uses In the City of 

Llano in the distribution of electric current. 

In the letter written by Mr. Gideon, your general counsel, you 

havs requested our opinion aa tc whether this ordinance Is enforcible 

against the Authority. 

The Act of the Legislature creating the Lower Colorado River 

Authority, being Ch. 7 of the Acts of the 43rd Leglslattie, 4th Called 

Session, p. 19, contains the following salient condition. It ia made~a 

govarmaental agency under the provisions of Sec. 59, Article XVI:'of the 

state Constitution. 

The last sentence in Sec. lof said Act reads: 

"Hothing In this Act or in any other sot or law contained, 

however, shall be conetzued as authorizing the District to levy 

or collect taxes or assessmenta, or ta create any indebtedmae 

payable out of taxes or assessments, or In any way to pledge the 

oredit of the State." 

Section 2 of aaM Act reads: 

"Except as expressly limited by this Act, the Dietrlct 

shall have and is hereby authorized to exercise all paver, 

rl&t, privileges and functions conferred by general law upon 

any dietriot or dietriots created pursuant to 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 develop and 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, maintain and reoonstruct, to cause to be conatzucted, extended, improved, malntained and 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 letter stated that: 

"The Lower Colorado River Authority - and operates 

within the City of Llano electric light poles which are 

situated in the streets and alleys of eaid city, and, therefore, oomee within the provisions of Section 1 of said or- 

",~ dillame." 

The city ordinance referred to, a copy of which you enclosed, 

requlree each organization or corporation maintaining any telegraph, telephone, electrle light or other poles in the City of Llano to pay said city 

annually for such privilege a rental equal to three per 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 

streets and 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> dated March 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 Robbine v. Limestone County, 114 Tex. 265, 268 S.W. 915, the 

Supreme Court of Texas, in an exhaustive opinion, held that all public roads 

in the State of Texae belange& to the sovereim state, and that the State 

had full control and 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 federal end state constitutionalimitations, 

the Legislature a8 representative of the state has power to OOnt.rOl 

and regulate streets in any way not inconeietent with their proper 

uee* * * Q The power of the Legislature to regulate streets has 

been classified aa part of the police power, * * * 
Lower Colorado River Authority - Page 3 (o-3301) 

“(3679) Strictly speaking, a municipality haa no original 

or inherent power tc control and regulate ita 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 ordinance in question provides that if the 

Lower Colorado River Authority falls to pay the rental, it shall, upon 

conviotion, be fined in any sum not to exceed $100.00 for each day, and 

provides that each day &la11 be deemed a separate offense. In our opinion, 

the Cfty of Llano, a municipal corporation, organized under the authority 

of the LegPslature, cannot inflict and collect a 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 passed by 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 general statutes, 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 claimed for 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,' Brenbam v. 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 passed by 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 without power tc prohibit the uee of its streets 

to those carrying passengers for hire." 

in Weslt V* City of Waco, 294 S. W. 832, the Supreme Court, in upholding an 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 delegate to 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