.



## THEA~ORNEY GENERAL OFTEXAS

Senator George Parkhouse The Senate of The State of Texas Austin, Texas Opinion No. WW-84 Re: Constitutionality of Committee Substitute for Senate Bill 101. Dear Senator **Parkhouse:**

This is in reply toyour letter ofMarch 13, 1957, in which you re,quest **our** opinion as to the constitutionality of Committee Substitute for Senate Bill 101.

This Opinion supplements Opinion No. WW-29. The proposed legislation reviewed in Opinion No. WW-29 was entitled “Committee Substitute for S. B. No. 101”. Itwas concluded in that opinion that the proposed act was unconstitutional. Amendments to **cure** the constitutional objections were then made tothe bill. This bill, with the amendments, and which is the subject **matter** ofthis Opinion No. WW-84~is also entitled “New Committee Substitute for S. B. No. 101”. This explanation is made to avoid possible confusion between the two bills, both ofwhich have the same S. B. number.

SUMMARY OF COMMITTEE SUBSTITUTE FOR S.B. 101

Section 1is the name of the Act, “Texas Gas for Irrigation Act.” Section 2declares the policy, intention and purposes ofthe Legislature. In substance these are declared tobe to save the soil for the basic industry of agriculture by eliminating erosion and deleterious effects ofwind, drought and excessive rainfall through using aportion of available natural gas to pump water from underground reservoirs for irrigation.

Section 3contains a definition ofterms. Section 4provides that in order to accomplish the purposes that every mineral operator shall make available upon request of the **sur** face operator an amount ofgas produced from the land not to exceed oneeighth ofthe total gas production.Section 5provides that the Railroad Commission shall derermine. in event of dispute between mineral operator and surface operator, as to the necessi,ty ofwhether gas shoul,d be made available, and if so, the price ar,d **terms.**

Section 6provides that all required pipes, connections and equipment shall be at the sole expense and risk of surface operator. Mineral operator shall not be li.abl,e for damage to property.

Section 7provides for appeals from rulings ofthe order ->fthe Railroad Commi,ssion.

Section 8provides for commence,ment of proceedings be;cre the Railroad Commission,

Secti,on 9provides that mineral operators shall not be required to furnish gas for use off the premises from which itis~produced; that,actions of the mineral operator Iancompl,ying with the provisions~hereof shall not, of itself, make the mineral operator apublic utility.

Secti,on 10provides that.pending determination of acaus,e before the Railroad Commi,ssion, the mineral operator shall furnish. gas to surface operator upon request on temporary terms as may be prescrib,ed,by the Rail,- road Commission.

Secti,on 11p+ovides for the placing ofliability ,upon the minerrl operator for failing tofurnish gas at the request ofthe surface operator.

Section 12repeal,s zII Isws or parts of laws in conflict herewith. Section 13is a savings or severability clause. Section 14declares an emergency and suspends the constltution,al reading rule and provides that the Act shall take effect from **the** date of its passages.

The main questions for our determination are (1) whether the Bil.1 is violative ofArticle 1,Sectlon 17, of the Texas Constitution, relating tothe taking ofproperty for public use, (2) whether the Bill violates Article 1,Section 16, ofthe Texas Constitution, relating t’othe impairment oi obligations of contract: (3) whethe,r the Bill violates the due process clause of**r.**

Senator George Barkhouse, Page 3 (WW-84)

the 14thAmendment of the LJ.S. Constitution and Article 1,Section 19, of the Texas Constitution, which is the due process clause.

Also involved is whether the Act is within the provisions of Article 16, Section 59(a) ofthe Texas Constitution, relating tothe conservation and the development ofthe natural resources ofthis State. (See footnote.)

The mo,st difficult constitutional question involved in the proposed Act is believed to be that relating tothe taking of property.

Although the power of eminent domain is perhaps most frequently exercised by agovernmental unit, it may also be given to corporate bodies or individuals. 16a C.J.S., Constitutional Law, Section 646, page 921. The power of eminent domain extends to real property, all kinds ofpersonal property, and intangible or incorporeal rights. 29C.J.S., Eminent Domain, Section 65, page 853.

Defining a “public usenis one that has given the courts much trouble, and upon which there is agreat amount of conflict. As a general statement, some courts have treated the term “public **use ”**  as synonymous with “public benefit”, “public convenience” or “public advantage”, whereas other courts have amore restricted meaning of “public use”, defining itto mean **use** by the public, and not that the use may incidentally have a public benefit. 29C.J.S., Eminent Domain, Section 31, page 823, Ann. 54A.L.R. 7.

Since it is the Constitution that prohibits the taking ofprivate property for other than public **use,** it is for the courts to determine whether the particular use towhich the condemned property is to be put is or is not an authorized taking. Dallas Cotton Mills v. Industrial Company, 296 S.W. 503 (Tex.Comm.App. 1927). Therefore, in order to determine what is an

Article 16, Section 59(a): The conservation and development of all of the natural resources of this State, including the control, storing, preservation and distribution of its storm and flood waters, the waters of its rivers and streams, for irrigation, ~. .the reclamation and irrigation of its arid, semiarid and other lands needing irrigation,
. ..and the preservation and conservation of all such natural **resources** ofthe land are each and all hereby declared public rights and duties; and the Legislature shall pass all such laws as may be appropriate thereto.,Cenator George Parkhouse, Page 4 (WW-84)

authorized taking, resort must Se had to the cases rather than to definitions. A review ofthe Texas decision shows that the Texas rule has been that called the “narrow” or “restricted” definition as towhat is apublic use, although there has been ?tendency in recent cases to expand such definition.

In Borden v. Trespelacios Rice &Irrigation Company, 98 Tex. 494, 86S.W. 11 (1905), affirmed 204 U.S. 667, 27S.Ct. 785, 51L.Ed. 671, the issue was the validity of a statute permitting the condemnation ofprivate land by a private corporation for an irrigation canal. The Court sustained the condemnation proceeding on the ground that those along the canal would have the right totake water therefrom, which made the taking for apu.blic **use.** In this connection the **Court** stated:

“The contention is that the laws inquestion do not **secure** any such **uses**to the public, or to any part of it, **but** that they authorize the creation ofpurely private corporations
. . .for carrying on abusiness wholly private, and attempt to empower them totake private property for **use** in such businesses wholly private, without being required to assume any duty to, or to respect any right in, the public. Ifthis were true, we should feel constrained to sustain the attack upon those provisions granting the right ofcondemnation, for we are not inclined to accept that liberal definition ofthe phrase ‘public **use ’**  adopted by some authorities, which make it mean no more than the public welfare or good, and under which almost any kind of extensive business which promotes the prosperity and comfort of the country might be aided by the power of eminent domain.”

This case was relied upon in subsequent Texas decisions in determining whether the proposed use was “public” or ‘private”. In Leathers v. Craig, 228 S.W. 995 (Tex.Civ.App. 1921) (’ involving a condemnation for a road for **use** by seven citizens), the Court stated:

“There is no law i,nthis State which would authorize the taking of private property of one individual for private use or convenience of another individual, or sets ofindividuals, as is here attempted. That the lands of one citizen **may be**  taken under the right ofeminent domain for public highways is well settled; but the right ofeminent domain implies that the purpose for which it may be exercise~d be apublicSenator George Parkhouse, Page 5 (WW-84)

one and not a mere private one. A ‘public **use ’**  is one concerned with the whole community inwhich itexists, as contra distinguished from aparticular individual or anumber of individuals. It seems not to be allowable, therefore, to authorize private roads be laid **out across**  the land ofunwilling parties by an exercise of eminent domain.”

In Brazes River Conservation &R. District v. Costello, 135 Tex. **307, 143**  S,W.2d **577 (1940),**  the **Court** said:

“The history ofthe many laws enacted by the Legislature ofthis State relating tothe exercise of eminent domain clearly shows that it is the policy of the Legislature to liberalize the exercise ofthat power, rather than to restri,ct it
.. .” This case involved the constitutionality ofthe statutes authorizing creation of conservation and reclamation districts. This statute was held constitutional, the Court relying onArticle 16, Section 59, ofthe Texas Constitution, this provision being adopted in 1917.

The **Court** cited Subdivision (b) of this constitutional provision as follows:

‘“That conservation and reclamation districts are

to have such powers ofgovernment and with the authority to exercise such rights, privileges and functions

.. .as may be conferred by law.”

InHousing Authority of the City of Dallas v. Higginbothom, 135 Tex. 158, 143 S.W.2d 79 (1940), itappears that the Texas **Court** has perhaps adopted abroader view ofwhat is a public **use** so as to include elements of “public benefit” or *public advantage”. In this case the **Court** sustained the validity ofthe Texas Housing Authorities Law, Article 1269k. which authorized the taking of private land for the purpose ofbuilding lowrent housing units. The contention was made that the statute was unconstitutional as it constituted ataking of private property not for public use within the meaning ofArticle 1, Section 17; that the construction would not be for the public generall.y, but for only a selected few low-income groups of individuals. Itwas held, however, that the purpose for which the land wasSenator George Parkhouse, Page 6 (WW-84)

being taken was constitutional. Itis not clear inthe decision whether it was held that the land was being taken for a “public **use ”**  or ause which would be ofa public “benefit”. The **Court** did conclude, however, “We are thoroughly convinced that the use towhich the housing projects will be devoted is apublic one.” In its opinion the Court stated:

“We have cited the above Texas cases to illustrate the trend ofthe decisions in this jurisdiction in the determination ofwhat is apublic **use.** A review ofthe cited cases from **our** jurisdiction demonstrates that this Court has adopted aliberal view concerning what is or what is not a public **use. ”**  InAtwood v. Willacy County Navigation District, 271 S.W.2d 137 (Tex.Civ.App. 1954, error ref’d n.r.e.), appeal dism’d 76S.Ct. 66, the validity ofthe statutes authorizing the condemnation of private property inthe development of port areas was before the **courts.** Itwas contended that the act was unconstitutional in that itpermitted the taking ofland to be rented or leased to individuals. In refu,ting this claim, the **Court** stated:

“We hold that the acquisition ofland for the purpose ofleasing the same as industrial sites inthe proximity of a port is reasonably necessary tothe successful operation of such port. Such use comes well within the definition of “public **use ’**  as laid down inthe case ofHousing Authority of the City ofDallas v. Higginbothom, 135 Tex. 158, 143 S.W.2d 79. e.oOur holding is likewise supported by the Federal decision. ” Citing cases. Itwas also held in this decision that the taking ofthe land in question was authorized under Article 16, Section 59, which authorizes the creation of such navigation districts.

The above cases involved primarily whether the taking was a “public usel or a “private **use ”**  under Article 1,Section 17, and the 14th Amendment. In considering the validity ofthe proposed Act, the provisions ofArticle 16, Section 59(a) must also be considered. Itis an elementary rule of construction that all parts ofthe constitution, and **statutes, are**  **to** be construed together so as to give effect to each part. That oil, gas, water and soil are natural resources is unquestioned. It is believed that the great bulk ofthe natural resources are privately owned and are subject to use ofSenator George Parkhouse, Page 7 (WW-84)

the i,ndividual, citizen Ir hi,s capacity as an individual. The Constitution directs that pr-:va?e, p~opesty not,be taken except for a publ,ic use, the Constitution also directs f:harthe Legislature conserve natural resources, making no distlPc:ion as to ,iheownership, public or private, of the natural resources. The Courts have had lIttIe difficulty in upholdIng the use of eminent, domail 1~.ai,d OFirrigation and drainage problems. A number of states have cons71tu:,iond’ Ap,*,nv?sions relating tothe u,se of lan,d Ianconnecti,onwith the developmer:? ofna.tural resou,rces. As observed by the Idaho Court ir Po?la<ch v. Petersor. 12Idaho 769, 88 Pac. 426 (1906):

“‘1~Idaho, owing tothe contour ofthe country
_~~and also ew<.ng to the ari,d condition vfthe State, the neceszity for irrigation in the development ofthe St,ate’s agri.cultural, resources and inthe devel.opment of its bou,ndless mineral wealth. itwas considered anecessity to the complete development ofthe materi.al resources ofthe State to enlarge and broaden the power of eminent domain inthe State, hence the adoptton of sai,d Srction 14,Arti,cl,e 1(of our Constitution. In many of the State Ccnstltx:.tlons, the right t,oe:xercise zhe power of eminent domair ~;smade to depend upon the question ofwhether the ilse con,!.emplated insor isnot a public ,Asein the most narrow a?d -es?-ic!ed mean;!ng ofthe phrase ‘pitblic use’

. The decz.s;or Ijrd-- mazy Sla7.e Consiitut~lons, therefore, are oflitt,lev~al;~eaj p-eced<v::-, r,:>-case3 arising under copsstitutions :lke Idaho. Coio:ado, and other western St.ates, wh;,ch make the characrer (emphasis addydj ofthe u,se. whether strictly --- pub!:c or ht.herwi ie, the c-?.i-rion oi the right to **c-xe~rcise** the pWVer.^~

A!,+hoiigh it may be said that,%h:s statement was dictum since the Court. held +ha+,*he li;je contempl,a?ed by t.hecondemnor was in a strict sense apvb!,:c ::se, +h:s I;bservaiioq is be!+ved to be valid in those States having a consti?u,:iondl pro.;ision similar tothe Texas consti,?utioral provision. Artic1.e 16, Section 59(a).

The Cour:s have had !it~t.lediffjculty ir upholding the uje of eminent doma,:n in a+d o<:rrigation. dra:nage. spur t,racks i,oprivate plants, pri~vate roads 3rd !rgging r<>ads, ‘ised 10cor.r.ectior~ with the dr,elopmen! otnatural resouTcPs~ _- Iv Str:rk!and v. Highlard Boy Gold Minir%g Company,Senator George Parkhouse, Page 8 (WW-84)

200 U.S. 527, 26S.Ct. 301, 50L.Ed. 581 (1906), acondemnation of a right ofway for an aerial bucket line was upheld against a claim that itwas taking property for private use. The Utah statute permitted the right of eminent; domain for such purpose to aid in mining. In Clark v. Nash, 198 U.S. 361, 25S.Ct. 676, 49 L.Ed. 1085, the problem involved was the constitutionalj,ty of a Utah statute which permitted the condemnation of land for the irrigation of other lands belonging to a private person. Such apurpose had been declared as apermi,tted use of eminent domain by the statutes of Utah, and the Utah Cou,rt had upheld condemnation for such purpose. The U.S. Supreme Court affirmed the Utah Court’s holding. In Fallbrook Irrigation District v. Bradley, 164 U.S. 112, 17S.Ct. 56, 41 L.Ed. 369 (1896), the Supreme Court affirmed a California decision which had held that irrigat.ion of arid lands was i.naccordance with California statute which stated this to be apublic purpose. The Supreme Court stated, LI+
. .that the fact that the water is limited tothe one landowner is not a fatal objection tothe legislat.ion.”
In Clark v. Nash, w, in discussing public use in connection with one individual havi,ng the right to condemn for an irrigation ditch for the condemnor”s sole benefit, the Court stated:

“This Court has stated that what is a public use may frequently and largely depend upon the facts surrounding the SUbJeCt, and we have said that the people of aState, as also its courts, must in the nature ofthings be more familiar with such facts and with anecessity and occasion for the i.rrigation, oi land, than can anyone be who is a stranger tothe soil of the State, and that such knowledge and familiari.ty must have their due weight with the State **Courts.**

**. .**  **.** We are, however, as we have said, disposed to agree with the Utah Court with regard tothe validity ofthe State statute, which provides, under the circumstances stated in the act for the condemnation ofthe land of one individual for the purpose of allowing another in.di.vidual to obtain water from a stream inwhich he has an interest, to irrigate his land, which otherwise would remain absolutely valueless.

.~.But we do not desire tobe understood by this decision as approving ofthe broad proposition that private property may be taken in all cases where the taking may promote the public interest and tend to develop the natural **resources** ofthe State. We simply say that in this parti,cudar case, and upon the facts stated in the finding ofthe Court, having reference tothe conditionsSenator George Parkhouse, Page 9 (WW-84)

already stated, we are ofthe opinion that the use is apublic one, although the taking ofthe right ofway is for the purpose simply ofthereby obtaining the water for an individual, where itis absolutely necessary to enable him to make any **use** whatever of his land, and which will be valuable and fertile only if water can be obta,ined.”

Many States have enacted **statutes** regulating many phases ofthe oil and gas industry. These **statutes** have been attacked as permitting the taking of private property without due process of law, among other unconstitutional grounds alleged. Almost without exception, these **statutes** have been sustained, where the stated purpose has been to conserve natural resources and a reasonable relation has been found between the stated purpose and the method which the Legislature prescribed **to** achieve **such result.** 

In Brown v. Humble Oil &Refining Company, 126 Tex. 296, 83S.W.2d 935, 87S.W.Zd 1069 (1935). the Texas Supreme **Court,** in upholding the spacing rule, stated, “Section 59(a), Article 16, of the Texas Constitutiondirects theLegislature to do whatever is necessary for the conservation of natural resources. The Legislature has undertaken to comply with this provision ofthe Constitution. Therefore, the Railroad Commission acting under valid laws, has ample authority, under both the Constitution and the police power to prevent waste and conserve the mineral interests ofthis State. This rule is supported by ahost ofauthorities” Citing cases.

That the U. S. Supreme **Court** will uphold the State Legislature and State Supreme Court in its determination ofwhat is or what is not necessary in the conservation of its natural **resources** is evident in the case of Railroad Commission v. Rowan k Nichols Oil Company, 310 U.S. 573, 60 S.Ct. 1021, 84L.Ed. 1368, amended 311 U.S. 614, 61 S.Ct. 66, 85 L-Ed. 473 (1940). In this case the Plaintiff appealed from an ordrr of the Railroad Commission setting the all.owable for the East Texas Field on aper-well basis. The Plaintiff complained of the order, saying that itwas denying him an opportunity to produce his oi.1,and that his oil would be drained and taken by adjoining leases; that his uncompensated drainage was an unconstitutional confiscation ofhis property. This order was upheld, the Supreme **Court** stating, u~~~but such cases are only episodes inthe evolution of adjustments among private interests and in reconciliation of all these private interests with the underlying public interest in such a vital source of energy for our days as oil.”Senator George Parkhouse, Page 10 (WW-84)

The Railroad Commission has power to shut down completely all production from an oil and gas field, if necessary, to prevent waste and conserve natural **resources.** Railroad Commission v. Sterling Oil &Refining Company, 147 Tex. 547, 218 S.W.2d 415 (1949). The city ordinance prohibiting the drilling of but one well to a city block is constitutional and does not violate the due process clause. Marrs v. City of Oxford, 32F.2d 134, (CA-S, 1929, cert. denied 280 U.S. 573).

InMarrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941 (1944), the Court set aside an allowable order for the McElroy Field in West Texas. The **Court** sustained, however, the power ofthe Railroad Commission to prescribe an allowab1.e order, **but** held that such an order was not reasonable under the circumstances there presented. In discussing Article 16, Section 59(a), ofthe Constitution, the Court stated that the Legislature must act under this provision ofthe Constitution in relation to the other provisions ofthe Constitution, which are above discussed.

In many of these decisions regulating oil and gas, the effect has been t.orestri.ct the use towhich the gas has been put; the amount ofproduction; the number and location ofwells and in some situations there has been acomplete denial of a right to drill awell. All ofthese regulations have restricted the free and unfettered use and control ofprivate property, and in a sense is a “‘taking of property”. That these regulations and enforcement of conservation measures are for the benefit ofthe public at large is well settled. Bandini Petroleum Company V-Superior **Court, 284**  U.S. 8, 52S.Ct. 103, 76L.Ed. 136 (1931).

The Texas Legi,slature, in accordance with Article 16, Section 59(a), has directed the creation ofwater conservation districts, navigation districts, and have passed other acts for the conservation ofwater and soil. The Legislature has **ako** passed **statutes** whose purpose has been to conserve oil and gas. Apparently this act is the first instance where the Legislature has proposed that one natural resource be utilized to capture and make available another natural resource for the purpose ofthe better utilization and conservation of stil.1another natural resource, the soil. That the State has an interest inthe conservation ofall natural resources is beyond question. In our opinion such act is within the constitutional provisions ofArticle 16, Section 59(a), and will not constitute ataking ofprivate property for a purely private use in violation ofArticle 1,Section 17, and the 14th Amendment. If the State Court upholds a particular use as not being violative ofthe “taking” provisions of its own statute, the U. S. Supreme **Court** will accept this as notSenator George Parkhouse, Page 11 (WW-84)

being violative ofthe 14thAmendment. Hairston Y. Danville StW. Ry. Co., 208 U.S. 598, 28S.Ct. 331, 52L.Ed. 637 (1908). Here the Court stated, “No case is recalled where this Court has condemned as aviolation of-the 14thAmendment ataking upheld by the State **Court** as ataking for public **uses** in conformity with its’laws.”

In our opinion the proposed act satisfies the procedural requirements ofArticle 1,Section’l9, relating tothe taking ofproperty by due process. The act provides for ahearing before the designated administrative body for a determination ofthe necessity of the taking, and the terms and conditions thereof if such is deemed 

### necessary for the conservation ofwater and soil. The decision ofthis administrative body can be appealed tothe Court for ajudicial review of its action. This satisfies the constitutional requirement. Voght v. Bexar County, 23S.W. 1045 (Tex.Civ.App. 1893, error ref’d.).
In our opinion the proposed act does not violate Article 1,Section 16, relating to impairment of contracts. The proposed act does not seek to act directly upon any particular contract, touching contracts only incidentally. Henderson Company v. Thompson, 57S.Ct. 447, 300 U.S. 258, 81L.Ed. 632 (1937). In this case the statute prohibited the use of sweet gas for the manufacture of carbon black. The Plaintiff contended, among other things, that itimpaired the obligation of a contract inwhich he was aparty to buy and to sell sweet gas for the prohibited use; however, the statute was sustained as being constitutional.

In our opinion the provision permitting those who are using the surface to have a right to demand aportion ofthe gas produced from the same surface is a reasonable classification. This group has been found by the Legislature, if enacted, to encompass a sufficiently large group to aid in the conservation of soil. This is not an unreasonable classification as to those who may require gas and as tothose who must supply gas as to make the act unconstitutional. Fort Worth &D. C. Ry. Co. v. Welch, 183S.W.2d 730 (Tex.Civ.App. 1944, error ref’d).

The proposed legislation would not be an unwarranted interference with interstate commerce. Cities Service Gas Company v. Peerless Oil &Gas Company, 203 Okla. 35, 220 P.2d 279 (1950), affirmed 340 U.S. 179, 71S.Ct. 215, 95L.Ed. 156 (1950).

An act similar to the proposed legislation was enacted in Oklahoma in 1955. A principal differenc.e between the Oklahoma act andSenator George Parkhouse, Page 12 (WW-84)

the proposed legislation is that in Oklahoma itwas de.clared that such natural gas should be made available for such **use** in preference to any other use, there being no restriction as tothe amount which could be taken by the surface operato,r. The Texas act limits the amount of gas which the surface operator may demand and buy to one-eighth of that produced, and then the Railroad Commission is to determine controversies as tothe necessity for such gas. Although this’appears to be amaterial distinction, this was not the reason given in the two decisions inwhich this **statute** has been before the **Co~urts.**

In Phillips Petroleum Company v. Corporation Commission of Oklahoma, decided by the Oklahoma Supreme Court on November 20, 1956, Volume 27, “The Journal”, 1921 (not yet officially reported), the Oklahoma **Court** held the act tobe unconstitutional. Three Justices dissented. In this case Phillips contended that the act converted it into a public utility in violation ofthe due process clause of the State and Federal Constitutions. The Oklahoma act expressly provided tothe contrary, that the gas producer was not to be considered apublic utility. But the **Court** held that the effect of the act was to require Phillips *to engage in a field of service not heretofore performed in an 

### area not heretofore served. We consider itimmaterial that the service is limited to a small area and afew people.” The Oklahoma Court also held that this constituted an unauthorized taking ofproperty which was accomplished without eminent domain. **As** ofthe date ofthis Opinion, an application fo’r rehearing i.spending inthe Oklahoma Supreme **Court.**

The same act was before the **Court** in Phillips Petroleum Com

### pany v. Ray C. Jones, et al., 147Fed.Supp. **122,** (D.C. Okla. **1955).** The **Court** which heard this case was ath~reejustice district court. The Federal **Court** held that the act complained ofwas constitutional. **At** the time this decision was written, the Oklahoma Supreme Court had not yet written its decision. The Federal **Court** stated:

“Beyond question, the act’s basic objective lies within the pale of local police power authority. Nothing is 

### more universally recognized than the right which adheres the State to

### conserve, protect and develop its resources 

### for the people’s general welfare and prosperity
. . ,to achieve this end, the enjoyment of indivi.dual property rights may be curtailed, or in some instances completely denied. In the act before us, the Oklahoma Legislature has summoned 

### one subterranean natural 

### resource to assist in the capture ofanother critically.

Senator George Parkhouse, Page 13 (WW-84)

needed subsurface mineral for the use and benefit ofthe State’s agricultural economy; and, ifthe act is given the construction, discussed previously, itdoes not unconstitutionally deprive aproperty without due process, impair contractual rights, burden interstate commerce, or deprive ofequal protection ofthe laws. Inasmuch as the act is not unconstitutional on its face, and since we cannot speculate as tohow itwill be enforced in each indi~vidual case, our inquiry is at an end.”

We have examined the Oklahoma Constitution, i.ncluding amendments thereto through 1955. No provisions similar to the conservati,on provision (Sec. 16,Art. 59(a) )ofthe Texas Constitution could be foun.d. Itis therefore assumed that the Oklahoma Legislature does not have the constitutional powers inthis regard as does the Texas Legislature.

In summary, the Texas Constituti~on prohibits ataking ofprivate property except for public use. By inference, and the courts have su held, the Constitution prohibits the taking of private propert~y for the psr~vate use of another individual. The question always present. is whether the new use (after the condemnation) will be apublic use or aprivate use. As stated, the **Courts** in the **various** States are in conflict as towhat is and .wh,at.is not apublic **use,** an exact deftnition being impossible. **The** final determinati.on ofthis question is ajudicial matter, and is not alone amatter oflegislative determination. A review ofthe Texas decisions shows that the earlier Texas Courts were reluctant to define “public use” to mean a use which would havea public advantage or apublic benefit when itwas being used by an individual inhis individual capacity as t,henew owner. The more recent Texas Supreme Court decisions appear tobe adopt,ing elements of ‘public advantage”, “public convenience* or “public benefit” in its judicial definition of “public **use ”** 
**.**

Also, Article 

## 16, Section 59(a) ofthe Texas Constitution expressly provides that the “preservation and conservation of all such natural resources of the State are each and all hereby declared public rights and duties.” In addition, that the use of all property, including property rights inwater, oil, pas and the land itself, is **subject** tothe police power of the State is well settled. Hudson Water Company

County v. McCa&er, 209 U.S. 349, 28S.Ct. 529, 52 L.Ed. 828 (1908); Lombard0 V. City of Dallas, 124 Tex. 1, 73S.W.2d 475 (1934).- .



### Senator George Parkhouse, Page 14(WW-84)

Requiring amtneral 

### operator toeel1gas toaeurfnca operator iaa“taking” ofproperty. In

### view ofthe

### later Texas Sup,rcme **Court** 

### definitionr of“public we”, theexpre,ss provisiona oftheConrtitution declaring conservation 

### ofnatural **resources** tobe “public right8 **and**

### duties* andthe police power oftheStatetoregulate the **use**

### ofalltypes ofproperty, we conclude thattheproposed legislation isconstitutional.

SUMMARY Senate Bill 101,withthenewCommittee Substitute, is, in**our** 

### opinion, constitutional, Very **truly yours,** 



### WILL WILSON **Attorney** 

### General

EPH:tiw APPROVED: I OPINION COMMITTEE **H. Grady** Chandler, Chairman Edwin P.Horncr **Aeaistant**