. 

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 10 1. 

Dear Senator Parkhouse: 

This is in reply to your letter of March 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. 10 1”. It was concluded in that opinion that the proposed 

act was unconstitutional. Amendments to cure the constitutional objections 

were then made to the bill. This bill, with the amendments, and which is 

the subject matter of this 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 of which have the same S. B. number. 

SUMMARY OF COMMITTEE SUBSTITUTE FOR S.B. 101 

Section 1 is the name of the Act, “Texas Gas for Irrigation Act.” 

Section 2 declares the policy, intention and purposes of the 

Legislature. In substance these are declared to be to save the soil for the 

basic industry of agriculture by eliminating erosion and deleterious effects 

of wind, drought and excessive rainfall through using a portion of available 

natural gas to pump water from underground reservoirs for irrigation. 

Section 3 contains a definition of terms. 

Section 4 provides that in order to accomplish the purposes 

that every mineral operator shall make available upon request of the surface operator an amount of gas produced from the land not to exceed oneeighth of the total gas production. 
Section 5 provides that the Railroad Commission shall derermine. in event of dispute between mineral operator and surface operator, 

as to the necessi,ty of whether ga s shoul,d be made available, and if so, the 

price ar,d terms. 

Section 6 provides 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 7 provides for appeals from rulings of the order ->f the 

Railroad Commi,ssion. 

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

the Railroad Commission, 

Secti,on 9 provides that mineral operators shall not be required 

to furnish gas for use off the premises from which it is~ produced; that, actions 

of the mineral operator Ian compl,ying with the provisions~hereof shall not, of 

itself, make the mineral operator a public utility. 

Secti,on 10 provides that. pending determination of a caus,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 11 p+ovides for the placing of liability ,upon the minerrl 

operator for failing to furnish gas at the request of the surface operator. 

Section 12 repeal,s zII Isws or parts of laws in conflict herewith. 

Section 13 is a savings or severability clause. 

Section 14 declares 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 of Article 1, Sectlon 17, of the Texas Constitution, relating 

to the taking of property for public use, (2) whether the Bill violates Article 

1, Section 16, of the Texas Constitution, relating t’o the 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 14th Amendment 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) of the Texas Constitution, relating to the conservation and the development of the natural resources of this State. (See footnote.) 

The mo,st difficult constitutional question involved in the proposed 

Act is believed to be that relating to the taking of property. 

Although the power of eminent domain is perhaps most frequently 

exercised by a governmental 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 of personal property, and intangible or incorporeal rights. 29 C. J.S., Eminent Domain, 

Section 65, page 853. 

Defining a “public use n is one that has given the courts much 

trouble, and upon which there is a great 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 a more restricted meaning of “public use”, defining it to 

mean use by the public, and not that the use may incidentally have a public 

benefit. 29 C.J.S., Eminent Domain, Section 31, page 823, Ann. 54 A.L.R. 7. 

Since it is the Constitution that prohibits the taking of private 

property for other than public use, it is for the courts to determine whether 

the particular use to which 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 of the 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 of the Texas decision shows that the Texas rule has been that 

called the “narrow” or “restricted” definition as to what is a public use, 

although there has been ? tendency in recent cases to expand such definition. 

In Borden v. Trespelacios Rice & Irrigation Company, 98 Tex. 

494, 86 S.W. 11 (1905), affirmed 204 U.S. 667, 27 S.Ct. 785, 51 L.Ed. 671, 

the issue was the validity of a statute permitting the condemnation of private 

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 to take water therefrom, which made the taking for a pu.blic 

use. In this connection the Court stated: 

“The contention is that the laws in question do not 

secure any such uses to the public, or to any part of it, but 

that they authorize the creation of purely private corporations . . . for carrying on a business wholly private, and 

attempt to empower them to take 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. 

If this were true, we should feel constrained to sustain the 

attack upon those provisions granting the right of condemnation, for we are not inclined to accept that liberal definition of the 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,n this State which would authorize 

the taking of private property of one individual for private 

use or convenience of another individual, or sets of individuals, as is here attempted. That the lands of one citizen may 

be taken under the right of eminent domain for public highways is well settled; but the right of eminent domain implies 

that the purpose for which it may be exercise~d be a public 
Senator George Parkhouse, Page 5 (WW-84) 

one and not a mere private one. A ‘public use’ is one 

concerned with the whole community in which it exists, 

as contra distinguished from a particular individual or 

a number of individuals. It seems not to be allowable, 

therefore, to authorize private roads be laid out across 

the land of unwilling 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 of the many laws enacted by the Legislature of this State relating to the exercise of eminent domain clearly shows that it is the policy of the Legislature 

to liberalize the exercise of that power, rather than to 

restri,ct it . . .” 

This case involved the constitutionality of the statutes authorizing creation 

of conservation and reclamation districts. This statute was held constitutional, the Court relying on Article 16, Section 59, of the 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 of government and with the authority 

to exercise such rights, privileges and functions . . . as 

may be conferred by law.” 

In Housing Authority of the City of Dallas v. Higginbothom, 

135 Tex. 158, 143 S.W.2d 79 (1940), it appears that the Texas Court has 

perhaps adopted a broader view of what is a public use so as to include 

elements of “public benefit” or *public advantage”. In this case the Court 

sustained the validity of the Texas Housing Authorities Law, Article 1269k. 

which authorized the taking of private land for the purpose of building lowrent housing units. The contention was made that the statute was unconstitutional as it constituted a taking of private property not for public use within 

the meaning of Article 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. It was held, however, that the purpose for which the land was 
Senator George Parkhouse, Page 6 (WW-84) 

being taken was constitutional. It is not clear in the decision whether it 

was held that the land was being taken for a “public use” or a use which 

would be of a public “benefit”. The Court did conclude, however, “We are 

thoroughly convinced that the use to which the housing projects will be 

devoted is a public one.” In its opinion the Court stated: 

“We have cited the above Texas cases to illustrate 

the trend of the decisions in this jurisdiction in the determination of what is a public use. A review of the cited cases 

from our jurisdiction demonstrates that this Court has adopted a liberal view concerning what is or what is not a public 

use.” 

In Atwood v. Willacy County Navigation District, 271 S.W.2d 137 

(Tex.Civ.App. 1954, error ref’d n.r.e.), appeal dism’d 76 S.Ct. 66, the validity 

of the statutes authorizing the condemnation of private property in the development of port areas was before the courts. It was contended that the act was 

unconstitutional in that it permitted the taking of land to be rented or leased 

to individuals. In refu,ting this claim, the Court stated: 

“We hold that the acquisition of land for the purpose 

of leasing the same as industrial sites in the proximity of 

a port is reasonably necessary to the successful operation 

of such port. Such use comes well within the definition of 

“public use’ as laid down in the case of Housing Authority 

of the City of Dallas v. Higginbothom, 135 Tex. 158, 143 

S.W.2d 79. e . o Our holding is likewise supported by the 

Federal decision. ” Citing cases. 

It was also held in this decision that the taking of the 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 of the proposed Act, the provisions 

of Article 16, Section 59(a) must also be considered. It is an elementary 

rule of construction that all parts of the 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 of the natural resources are privately owned and are subject to use of 
Senator 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:har the Legislature conserve natural resources, 

making no distlPc:ion as to ,ihe ownership, public or private, of the natural 

resources. 

The Courts have had lIttIe difficulty in upholdIng the use of 

eminent, domail 1~. ai,d OF irrigation and drainage problems. A number of 

states have cons71tu:,iond’ A p,*,nv?sions relating to the u,se of lan,d Ian connecti,on with the developmer:? of na.tural resou,rces. As observed by the Idaho 

Court ir Po?la<ch v. Petersor. 12 Idaho 769, 88 Pac. 426 (1906): 

“‘1~ Idaho, owing to the contour of the country _ ~ ~ and 

also ew<.ng to the ari,d condition vf the State, the neceszity 

for irrigation in the development of the St,ate’s agri.cultural, 

resources and in the devel.opment of its bou,ndless mineral 

wealth. it was considered a necessity to the complete development of the materi.al resources of the State to enlarge and 

broaden the power of eminent domain in the 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,o e:xercise zhe power 

of eminent domair ~;s made to depend upon the question of whether the ilse con,!.emplated ins or i s not a public ,Ase in the most 

narrow a?d -es?-ic!ed mean;!ng of the phrase ‘pitblic use’. The 

decz.s;or Ijrd-- mazy Sla7.e Consiitut~lons, therefore, are of litt,le v~al;~e a j p-eced<v::-, r,:>- case3 arising under copsstitutions 

:lke Idaho. Coio:ado, and other western St.ates, wh;,ch make 

the characrer (emphasis addydj of the 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.he condemnor was in a strict 

sense a pvb!,:c ::se, +h:s I;bservaiioq is be!+ved to be valid in those States 

having a consti?u,:iondl pro.;ision similar to the Texas consti,?utioral provision. Artic1.e 16, Section 59(a). 

The Cour:s have had !it~t.le diffjculty ir upholding the uje of 

eminent doma,:n in a+d o< :rrigation. dra:nage. spur t,racks i,o private plants, 

pri~vate roads 3rd !rgging r<>ads, ‘ised 10 cor.r.ectior~ with the dr,elopmen! 

ot natural resouTcPs~ Iv _- Str:rk!and v. Highlard Boy Gold Minir%g Company, 
Senator George Parkhouse, Page 8 (WW-84) 

200 U.S. 527, 26 S.Ct. 301, 50 L.Ed. 581 (1906), a condemnation of a right 

of way for an aerial bucket line was upheld against a claim that it was 

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, 25 S.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 a purpose 

had been declared as a permi,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, 17 S.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.n accordance with California statute which stated 

this to be a public purpose. The Supreme Court stated, LI+ . . that the fact 

that the water is limited to the one landowner is not a fatal objection to the 

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 a State, as 

also its courts, must in the nature of things be more familiar with such facts and with a necessity and occasion for 

the i.rrigation, oi land, than can anyone be who is a stranger 

to the 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 to the validity of the State statute, 

which provides, under the circumstances stated in the act for 

the condemnation of the land of one individual for the purpose 

of allowing another in.di.vidual to obtain water from a stream 

in which he has an interest, to irrigate his land, which otherwise would remain absolutely valueless. . ~ . But we do not 

desire to be understood by this decision as approving of the 

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 of the State. We simply 

say that in this parti,cudar case, and upon the facts stated in 

the finding of the Court, having reference to the conditions 
Senator George Parkhouse, Page 9 (WW-84) 

already stated, we are of the opinion that the use is a public 

one, although the taking of the right of way is for the purpose 

simply of thereby obtaining the water for an individual, where 

it is 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 of the 

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, 

83 S.W.2d 935, 87 S.W.Zd 1069 (1935). the Texas Supreme Court, in upholding the spacing rule, stated, “Section 59(a), Article 16, of the Texas Constitutiondirects the Legislature to do whatever is necessary for the conservation of natural resources. The Legislature has undertaken to comply with 

this provision of the 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 

of this State. This rule is supported by a host of authorities” Citing cases. 

That the U. S. Supreme Court will uphold the State Legislature 

and State Supreme Court in its determination of what 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, 84 L.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 a per-well 

basis. The Plaintiff complained of the order, saying that it was 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 of his property. This order was upheld, the Supreme Court 

stating, u ~ ~ ~ but such cases are only episodes in the 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, 32 F.2d 134, 

(CA-S, 1929, cert. denied 280 U.S. 573). 

In Marrs 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 of the 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), of the Constitution, the Court stated that the 

Legislature must act under this provision of the Constitution in relation to 

the other provisions of the Constitution, which are above discussed. 

In many of these decisions regulating oil and gas, the effect has 

been t.o restri.ct the use to which the gas has been put; the amount of production; the number and location of wells and in some situations there has been 

a complete denial of a right to drill a well. All of these regulations have restricted the free and unfettered use and control of private property, and in a 

sense is a “‘taking of property”. That these regulations and enforcement of 

conservation measures are for the benefit of the public at large is well settled. 

Bandini Petroleum Company V- Superior Court, 284 U.S. 8, 52 S.Ct. 103, 

76 L.Ed. 136 (1931). 

The Texas Legi,slature, in accordance with Article 16, Section 

59(a), has directed the creation of water conservation districts, navigation 

districts, and have passed other acts for the conservation of water 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 of the better utilization and 

conservation of stil.1 another natural resource, the soil. That the State has 

an interest in the conservation of all natural resources is beyond question. 

In our opinion such act is within the constitutional provisions of Article 16, 

Section 59(a), and will not constitute a taking of private property for a purely 

private use in violation of Article 1, Section 17, and the 14th Amendment. If 

the State Court upholds a particular use as not being violative of the “taking” 

provisions of its own statute, the U. S. Supreme Court will accept this as not 
Senator George Parkhouse, Page 11 (WW-84) 

being violative of the 14th Amendment. Hairston Y. Danville St W. Ry. Co., 

208 U.S. 598, 28 S.Ct. 331, 52 L.Ed. 637 (1908). Here the Court stated, 

“No case is recalled where this Court has condemned as a violation of-the 

14th Amendment a taking upheld by the State Court as a taking for public 

uses in conformity with its’ laws.” 

In our opinion the proposed act satisfies the procedural requirements of Article 1, Section’l9, relating to the taking of property by due process. The act provides for a hearing before the designated administrative 

body for a determination of the necessity of the taking, and the terms and 

conditions thereof if such is deemed necessary for the conservation of water 

and soil. The decision of this administrative body can be appealed to the 

Court for a judicial review of its action. This satisfies the constitutional 

requirement. Voght v. Bexar County, 23 S.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, 57 S.Ct. 447, 300 U.S. 258, 81 L.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 

it impaired the obligation of a contract in which he was a party 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 a portion of the 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 to those who must supply gas as to make 

the act unconstitutional. Fort Worth & D. C. Ry. Co. v. Welch, 183 S.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, 71 S.Ct. 215, 95 L.Ed. 156 (1950). 

An act similar to the proposed legislation was enacted in 

Oklahoma in 1955. A principal differenc.e between the Oklahoma act and 
Senator George Parkhouse, Page 12 (WW-84) 

the proposed legislation is that in Oklahoma it was de.clared that such 

natural gas should be made available for such use in preference to any 

other use, there being no restriction as to the 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 to the necessity for such gas. Although this’appears to be a material 

distinction, this was not the reason given in the two decisions in which 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 to be unconstitutional. Three Justices dissented. In this 

case Phillips contended that the act converted it into a public utility in violation of the due process clause of the State and Federal Constitutions. The 

Oklahoma act expressly provided to the contrary, that the gas producer was 

not to be considered a public 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 it immaterial that 

the service is limited to a small area and a few people.” The Oklahoma 

Court also held that this constituted an unauthorized taking of property which 

was accomplished without eminent domain. As of the date of this Opinion, an 

application fo’r rehearing i.s pending in the Oklahoma Supreme Court. 

The same act was before the Court in Phillips Petroleum Company v. Ray C. Jones, et al., 147 Fed.Supp. 122, (D.C. Okla. 1955). The Court 

which heard this case was a th~ree justice district court. The Federal Court 

held that the act complained of was 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 of another critically 
. 

Senator George Parkhouse, Page 13 (WW-84) 

needed subsurface mineral for the use and benefit of the 

State’s agricultural economy; and, if the act is given the 

construction, discussed previously, it does not unconstitutionally deprive a property without due process, impair 

contractual rights, burden interstate commerce, or deprive 

of equal protection of the laws. Inasmuch as the act is not 

unconstitutional on its face, and since we cannot speculate 

as to how it will 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) ) of the Texas Constitution could be foun.d. It is 

therefore assumed that the Oklahoma Legislature does not have the constitutional powers in this regard as does the Texas Legislature. 

In summary, the Texas Constituti~on prohibits a taking of private 

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 a public use or a private use. As stated, 

the Courts in the various States are in conflict as to what is and .wh,at. is not 

a public use, an exact deftnition being impossible. The final determinati.on 

of this question is a judicial matter, and is not alone a matter of legislative 

determination. A review of the Texas decisions shows that the earlier 

Texas Courts were reluctant to define “public use” to mean a use which 

would havea public advantage or a public benefit when it was being used by 

an individual in his individual capacity as t,he new owner. The more recent 

Texas Supreme Court decisions appear to be adopt,ing elements of ‘public 

advantage”, “public convenience* or “public benefit” in its judicial definition of “public use”. 

Also, Article 16, Section 59(a) of the 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 in water, oil, 

pas and the land itself, is subject to the police power of the State is well settled. 

Hudson County Water Company v. McCa&er, 209 U.S. 349, 28 S.Ct. 529, 52 

L.Ed. 828 (1908); Lombard0 V. City of Dallas, 124 Tex. 1, 73 S.W.2d 475 (1934). 
- . 

Senator George Parkhouse, Page 14 (WW-84) 

Requiring a mtneral operator to eel1 gas to a eurfnca operator 

ia a “taking” of property. In view of the later Texas Sup,rcme Court definitionr of “public we”, the expre,ss provisiona of the Conrtitution declaring 

conservation of natural resources to be “public right8 and duties* and the 

police power of the State to regulate the use of all types of property, we 

conclude that the proposed legislation is constitutional. 

SUMMARY 

Senate Bill 101, with the new Committee 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