State v. City of Dallas, s. 10656 and 10657

• Citation: 319 S.W.2d 767
• Decision Date: 17 December 1958
• Docket Number: Nos. 10656 and 10657,s. 10656 and 10657
• Parties: STATE of Texas, Appellant, v. CITY OF DALLAS et al., Appellees. STATE of Texas, Appellant, v. CITY OF AUSTIN et al., Appellees.
• Court: Court of Appeals of Texas. Court of Civil Appeals of Texas

Page 767

319 S.W.2d 767

STATE of Texas, Appellant, v. CITY OF DALLAS et al., Appellees.

STATE of Texas, Appellant, v. CITY OF AUSTIN et al., Appellees.

Nos. 10656 and 10657.

Court of Civil Appeals of Texas, Austin.

Dec. 17, 1958.

Rehearing Denied Jan. 7, 1959.

Will Wilson, Atty. Gen., H. Grady Chandler, John B. Webster, Asst. Attys. Gen., for appellant.

H. P. Kucera, City Atty., Ed Gossett, Whitney R. Harris, Warren J. Collins, Howard Norris, W. Autry Norton, Jos. Irion Worsham, Dallas, Doren R. Eskew, City Atty., Robert J. Potts, Jr., Asst. City Atty., Austin, James Wetherbee, Willis L. Lea, Jr., Dallas, Looney, Clark, Mathews, Thomas & Harris, Frank Denius, Austin, for appellee.

ARCHER, Chief Justice.

These cases involving the same or similar questions, have been, on motion, consolidated.

Appellant the State of Texas Filed two suits, No. 10,656 against the City of Dallas, Southwestern Bell Telephone Company, Dallas Power and Light Company and the Lone Star Gas Company, and No. 10,657 against the City of Austin, Southwestern Bell Telephone Company and the Southern Union Gas Company, seeking in each suit a declaratory judgment as to the rights and duties of the parties under Section 4-A of Chapter 300, page 724, Acts of the 55th Legislature, Regular Session, 1957, Article 6674w-4, Vernon's Ann.Civ.St., and particularly the duty, if any, of the State to reimburse the defendants for their respective costs incurred in the removal, relocation and adjustment of their utility facilities occupying the streets, alleys, roads and public ways within the corporate limits of the City of Dallas and/or the City of Austin where such relocation or adjustment is necessitated by the improvement of an Interstate Highway.

These suits necessarily involve the constitutionality of Section 4-A of the Act.

The State contends that such section is unconstitutional, and the defendants contend that it is valid.

The Act, Chapter 300, p. 724, was passed to facilitate the construction, maintenance and operation of State highways. It contains a severability clause in Section 6. Section 4-A provides for reimbursement by the State to defendants of the cost of relocation of utility facilities necessitated by the improvement of an Interstate Highway, provided that such relocation is eligible for Federal participation.

As stated the only question presented for the Trial Court's determination was Strictly the legal issue as to the constitutionality of Article 6674w-4 and the effect of such on the bill as a whole. Motions for summary judgment were filed by appellant and appellees supported by affidavits and each movant conceded that there were no genuine issues of fact in these cases.

The Trial Court granted the motions of appellees for summary judgment and denied appellant's motions.

The appeal is before this Court on nine points and are to the effect that the court erred in denying plaintiff's motion for summary judgment, in sustaining defendants' motion for summary judgment, in holding that Section 4-A is not invalid as a donation of public monies as prohibited by Section 51 of Article III of the State Constitution, Vernon's Ann.St., and not invalid as a gift or loan of the credit of the State in violation of Section 50, Article III of the Constitution, in holding Section 4-A is not invalid as a release of the obligations of corporations or individuals in violation of Section 55 of Article III of the Constitution, in holding that Section 4-A is not invalid as an appropriation for private or individual purposes as prohibited by Section 6 of Article XVI of the Constitution, in holding that Section 4-A does not delegate to the United States, its Congress, and agencies certain legislative authority which may properly be exercised only by the Legislature of the State of Texas, in holding that Section 4-A does not provide for disbursements to be made from the State Highway Fund in a manner and for a purpose prohibited by Section 7-a of Article VIII of the Constitution, and in not confining the application of its judgment to the utility facilities situated within and upon the public streets, alleys, roads and other public ways within the corporate limits of the cities of Dallas and Austin and within the rights of way of the Interstate Highways, which were the only facilities placed in issue by the pleadings.

It is agreed that the defendants have installed their utility facilities within the rights of way of city streets, alleys and other public ways within the corporate limits of the City of Dallas and of the City of Austin and some of which installations are also within the rights of way of designated highways; that appellant has determined to be necessary the improvements and construction of such Interstate Highways, and such improvements and construction will necessitate the adjustment and relocation of such facilities; that due demand has been made on defendants (appellees) to adjust and relocate said facilities and they have refused to do so as plaintiff (appellant) refuses to enter into agreements to reimburse them for their costs and expenses so incurred.

Points one through six are grouped for argument, for the purpose of providing a presentation to this Court of the unconstitutionality of Article 6674w-4 in its application to the cities, and separately from the argument of its application to the utility companies.

Appellant asserts that the utility companies have a duty at their sole expense to relocate or remove their facilities which are presently situated in the rights of way in such a manner as to conform to the construction and improvement of all public streets and highways as they traverse the area within the corporate limtis of the City of Austin, or City of Dallas as the case may be. The grant of authority by virtue of which defendant companies have located their facilities within the public rights of way is not absolute; to the contrary, it is qualified and conditional and are subordinate to the interests of the traveling public, and appellant cites City of Antonio v. Bexar Metropolitan Water District, Tex.Civ.App., 309 S.W.2d 491, er. ref.

Further contention is made that one of the conditions of the grant of authority is that the companies will relocate and remove such facilities when they interfere with the use of the rights of way by the public, as determined by the State or by the political subdivisions or agency thereof, and cite as the general rule 18 Am.Jur. 792, Eminent Domain, Section 161; Southern Bell Tel. & Tel. Co. v. State ex rel. Ervin, Fla.Sup., 1954, 75 So.2d 796; Southern Bell Tel. & Tel. Co. v. Commonwealth, Ky.Ct.App., 1954, 266 S.W.2d 308, and a number of other cases, most if not all are cited in the above cases.

Articles 1416, 1436a and 1436b, V.A.C.S., in authorizing the laying of utility lines in public roada and highways, outside of the limits of incorporated cities, make reservation for future changes in the public use of such roads and highways.

The ordinances of the two cities granting a franchise to the Telephone Company and the Gas Company provide for control by the City and for relocation of their facilities. Appellant says that it does not rely merely on the City ordinances for the creation of such duty of relocation of such facilities, but rather on the authorities cited in the cases above mentioned, and that a grant without the condition to relocate such facilities would be a void attempt to impair the cities' performance of governmental functions. Citing City of Brenham v. Brenham Water Company, 67 Tex. 542, 4 S.W. 143; Bowers v. City of Taylor, Comm.App.1928, 16 S.W.2d 520, 521.

We quote from Article 6674w-4, V.A.C.S.:

'Whenever the relocation of any utility facilities is necessitated by the improvement of any highway in this State which has been or may hereafter be established by appropriate authority according to law as a part of the National System of Interstate and Defense Highways, including extensions thereof within urban areas, such relocation shall be made by the utility at the cost and expense of the State of Texas provided that such relocation is eligible for Federal participation. Reimbursement of the cost of relocation of such facilities shall be made from the State Highway Fund to the utility owning such facilities, anything contained in any other provision of law or in any permit, or agreement or franchise issued or entered into by any department, commission or political subdivision of this State to the contrary notwithstanding. The term 'utility' includes publicly, privately, and cooperatively owned utilities engaged in furnishing telephone, telegraph, communications, electric, gas, heating, water, railroad, storm sewer, sanitary sewer or pipelines service. The term 'cost of relocation' includes the entire amount paid by such utility properly attributable to such relocation after deducting therefrom any increase in the value of the new facility and any salvage value derived from the old facility, and otherwise as may be fixed by regulations for Federal cost participation. It is further provided that by agreement with the affected utility the State Highway Department may relocate such utility facility in accordance with the provisions hereof.'

Appellant contends:

'Article III, Section 51: 'The Legislature shall have no power to make any grant or authorize the making of any grant of public moneys to any individual, association of individuals, municipal or other corporations whatsoever; * * *'

'Article III, Section 50: 'The Legislature shall have no power to give or to lend, or to authorize the giving or lending, of the credit of the State in aid of, or to any person, association or corporation, whether municipal or other, or to pledge the credit of the State in any manner whatsoever, for the payment of the liabilities, present or prospective, of any individual, association of individuals, municipal or other corporation whatsoever.'

'Article III, Section 55...