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### E3 GENERAL

GRRALD C.MANN xm AUSTTN 11. Tpxas

Honorable A. E. Hickerson County Auditor Montgomery County Conroe, Texas Dear Sir: Opinion No. O-2517 Re: Bas the commissioners court authority to issue a franchise tonloonl telephone company operating outside the City of Conroe inMontgomery County?
Your recent request for an opinion of thisdepartment on the above stated question has been received.

We quote from your letter as follows:
"Has the Commissioners1Court authority to issue a franohise toa local telephone company operating outside the City ofConroe inMontgomery County. If so, what Is the limit on the charge for this particular service." Articles 1416 end 1417, Vernon's Annotated Civil Statutes read as follows: "Ad. 1416. Corporations created for thepurpose of constructing andmaintaining magnetic telegraph lines, are authorized to set their poles, piers, abutments, wires and other fixtures along, upon and across any of the public roads, streets andwaters of this State, in such manner asnot to incommode the public in the use of such roads, streets endwaters.
"Art. 1417. Theymay also enter upon any Lands owned by private persons or by a corporation, in fee or less eUtate, for thepurpose ofmaking preliminary surveys and examinations with aview to the erection of any telegraph line, and from time to time appropriate somuch of said lands asmay beneoessary to erect such poles, piers, abutments, wires and other necessary fixtures for amagnetic telegraph, and tomake such changes of location ofany part of said lines asmay fromtime to time be deemed necessary, and shall have a right ofHonorable E.A. Bickerson, Page 2,O-2517

access to construct said line, andwhen erected, from time to time asmay be required to repair the same, and shall have the right of eminent domain to obtain the right ofway and condemn lands for the use of the corporation."
"&Iagency towhom the state hasnot delegated the~ power-cannot grant a franchise." Corpus Juris, Vol. 26% page 1027. We quote from Corpus Juris,Vol. 62,page 29,as follows:
"A telegraph or telephone company cannot occupy or use public streets orhighways without legislative authority granted either directly or indirectly, and cannot exist by implication merely. Thepower to grant such authority rests in congress as tohighways which are post roads; as to other streets andhighways, the power rests ultimately in the state, and inmunicipalities towhich the state delegates its power." We quote from Texas Jurisprudence, Vol. 40,page 407, as follows:

"Beingpublic utilities, telegraph and telephone companies are subject to regulation in thepubliointerest. While this right of regulation isone of the inherent powers of the State and its subordinate agencies, yet, asmentioned inanother article ofthis work, in assenting to theFederal Constitution the several states surrendered to the national government theirpowers over interestate commerce. Since it is settled law that the transmission of intelligence from one state to another constitutes interstate commerce, itresults that telegraph and telephone companies may be subject to regulation by three different agencies; theUnited States, the Stats and the inferior agencies, such asmunicipal corporations, to whom the State has delegated regulatory power. "The regulation of telegraph and telephone companies was for many years wholly in thehands of the several state governments. But in 1910 the Federal Government assumed jurisdiction of such corporations, in so faras their interstate and foreign activities are concerned and state control is therefore definitely limited to intrastate matters...." We further quote from Texas Jurisprudence, Vol. 40, pages 413, 414 and 415as follows:

"Thestatute that authorizes telegraph and telephone.- pl

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Honorable E.A. Bickerson, Page 3, O-2512

companies tomake use of 'any of the public roads, streets andwaters of the State' does not in,terma make any distinction between telephone companies with respect to the character of service rendered - whether local or long distanoe. But it seems that there is avery significant distinction, in so far as the regulatory rights ofmuhioipal corporations are concerned. In the case of telegraph companies and long diatanae telephone companies a city, town or village may make reasonable rules and regulations in respect of the location of the line, the 'kindsof poles thatmay beused and the height atwhich the wires may be strung; but ithas no right whatsoever to deny to such corporations the use of its streets, at least in so far as out-of-town business is oonoerned; as to such business the right to use the streets is absolute.
"But the situation seems tobewholly different with respect to local telephone companies. Such corporations have no absblute right to use the streets, and can do so only with the consent of themunicipal authorities. This consent is commonly manifested by the grant of a.franohise which may fix therates tobe charged for telephone service and set forth the general conditions under which the company may transact itsbusiness...." With reference toArticle 1416, supra,we quote from Texas Jurisprudence, Vol. 40, page 368, as follows:

9Vhile it seems probably that the Legislature did not have telephone oompanies inmind at-the time it enacted this statute, the courts have held that the term tmagnetio telegraph lines' isbroad enough to include telephone lines. Accordinglyit isnow settled law that,with an exception hereinafter noticed, telephone companies are asmuch entitled to take advantage of the enaotment as telegraph oompsnies. Itwill be noted, however, that the grant is confined to oorporationa only, and this obviously means that neither a co-partnership nor an individual is entitled to its benefits, in theabsence of special authorization." The general rule governing powers and limitations of the county commissioners!.court, as set out by the Supreme Court in Commissioners' tiourtvs.Wallace, 15 SW 2d 535, reads inpart as follows;

"The commissioners* court is a creature of the State Constitution, and itspowers are limited and controlled by the Constitution and the laws aspassed-, -. -

Honorable E. A. Hlokerson, Page 4, - O-2517

by the Legislature. Art. 5, Sec. 18, Constitution ofTexas; Baldwin vs. Travis County, 88 SW 480; Seward vs. Falls County, 246 SW 728; nland vs. Orr, 39 SW558." "The legislative department of the government is a source of the grant of a franohise, and there must be a certain grantee. The Legislature, unless constitutionally inhibited, may exercise its authority by direct legislation, or through agencies duly established having power for that purpose." Texas Jurisprudence, Vol. 19,page 879.
It isawell established rule that the commissioners* courtmay exercise only those powers specifically designated by the Constitution or the statutes or those powers necessarily implied. The fact that a franchise isavery special privilege given onlyby a direct legislative grant orby specifically designated agency, wemust reach the conclusion that the Legislature has not designated the county commissioners' court asan agency with the right and power to grant a franchise.

Inview of the foregoing authorities, you are respectfully advised that is the opinion of this department that the commissioners1court does not have thepower or authority to grant a franchise to a local telephone company operating outside the city of Conroe inMontgomery County.

Trusting thatwe have fully answered your inquiry, we are
Very truly yours ATTORNEY GEWERAL OFTEXAS
BB s/Ardell Williams

- APPROVED JULY 15, 1940 s/Grover Sellers Ardell Williams FIRST ASSISTANT Assistant ATTORNEY GENERAL APPROVED OPINION COMMITTEE By BWB, Chairman AW:AW/cg