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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 

to nloonl telephone company 

operating outside the City of 

Conroe in Montgomery County? 

Your recent request for an opinion of this department on the above stated question has been received. 

We quote from your letter as follows: 

"Has the Commissioners 1 Court authority to issue 

a franohise to a local telephone company operating outside the City of Conroe in Montgomery 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 the purpose of 

constructing and maintaining 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 and waters of this State, in 

such manner as not to incommode the public in the use of 

such roads, streets end waters. 

"Art. 1417. They may also enter upon any Lands 

owned by private persons or by a corporation, in fee or 

less eUtate, for the purpose of making preliminary 

surveys and examinations with a view to the erection 

of any telegraph line, and from time to time appropriate 

so much of said lands as may be neoessary to erect such 

poles, piers, abutments, wires and other necessary fixtures for a magnetic telegraph, and to make such changes 

of location of any part of said lines as may fromtime 

to time be deemed necessary, and shall have a right of 
Honorable E. A. Bickerson, Page 2, O-2517 

access to construct said line, and when erected, from 

time to time as may be required to repair the same, 

and shall have the right of eminent domain to obtain the 

right of way and condemn lands for the use of the 

corporation." 

"&I agency to whom the state has not 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 or highways without legislative 

authority granted either directly or indirectly, and 

cannot exist by implication merely. The power to grant 

such authority rests in congress as to highways which 

are post roads; as to other streets and highways, the 

power rests ultimately in the state, and in municipalities to which the state delegates its power." 

We quote from Texas Jurisprudence, Vol. 40, page 

407, as follows: 

"Being public utilities, telegraph and telephone 

companies are subject to regulation in the publiointerest. 

While this right of regulation is one of the inherent 

powers of the State and its subordinate agencies, yet, 

as mentioned in another article of this work, in assenting to the Federal Constitution the several states 

surrendered to the national government their powers over 

interestate commerce. Since it is settled law that the 

transmission of intelligence from one state to another 

constitutes interstate commerce, it results that telegraph and telephone companies may be subject to regulation 

by three different agencies; the United States, the Stats 

and the inferior agencies, such as municipal corporations, 

to whom the State has delegated regulatory power. 

"The regulation of telegraph and telephone companies 

was for many years wholly in the hands of the several 

state governments. But in 1910 the Federal Government 

assumed jurisdiction of such corporations, in so far as 

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 415 as follows: 

"The statute that authorizes telegraph and telephone 
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Honorable E. A. Bickerson, Page 3, O-2512 

companies to make use of 'any of the public roads, 

streets and waters 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 a very significant distinction, in so far as 

the regulatory rights of muhioipal 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 'kinds of 

poles that may be used and the height at which the 

wires may be strung; but it has 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 to be wholly 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 the municipal 

authorities. This consent is commonly manifested by 

the grant of a.franohise which may fix the rates to be 

charged for telephone service and set forth the 

general conditions under which the company may transact 

its business...." 

With reference to Article 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 in mind at-the time it 

enacted this statute, the courts have held that the 

term tmagnetio telegraph lines' is broad enough to 

include telephone lines. Accordingly it is now settled 

law that, with an exception hereinafter noticed, telephone companies are as much entitled to take advantage 

of the enaotment as telegraph oompsnies. It will 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 the absence of special authorization." 

The general rule governing powers and limitations of 

the county commissioners!. court, as set out by the Supreme 

Court in Commissioners' tiourt vs. Wallace, 15 SW 2d 535, 

reads in part as follows; 

"The commissioners* court is a creature of the 

State Constitution, and its powers are limited and 

controlled by the Constitution and the laws as passed 
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Honorable E. A. Hlokerson, Page 4, - O-2517 

by the Legislature. Art. 5, Sec. 18, Constitution 

of Texas; Baldwin vs. Travis County, 88 SW 480; 

Seward vs. Falls County, 246 SW 728; nland vs. Orr, 

39 SW 558." 

"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 is a well established rule that the commissioners* 

court may exercise only those powers specifically designated 

by the Constitution or the statutes or those powers necessarily 

implied. The fact that a franchise is a very special privilege 

given only by a direct legislative grant or by specifically 

designated agency, we must reach the conclusion that the 

Legislature has not designated the county commissioners' court 

as an agency with the right and power to grant a franchise. 

In view of the foregoing authorities, you are 

respectfully advised that is the opinion of this department 

that the commissioners 1 court does not have the power or 

authority to grant a franchise to a local telephone company 

operating outside the city of Conroe in Montgomery County. 

Trusting that we have fully answered your inquiry, 

we are 

Very truly yours 

ATTORNEY GEWERAL OF TEXAS 

BB s/ Ardell Williams 

APPROVED JULY 15, 1940 - 

s/ Grover Sellers Ardell Williams 

FIRST ASSISTANT Assistant 

ATTORNEY GENERAL 

APPROVED OPINION COMMITTEE 

By BWB, Chairman 

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