State v. City of Austin

• Decision Date: 06 January 1960
• Docket Number: Nos. A-7173,A-7174,s. A-7173
• Citation: 160 Tex. 348,331 S.W.2d 737
• Parties: STATE of Texas, Petitioner, v. CITY OF AUSTIN et al., Respondents. STATE of Texas, Petitioner, v. CITY FO DALLAS et al., Respondents.
• Court: Texas Supreme Court

Page 737

331 S.W.2d 737

160 Tex. 348

STATE of Texas, Petitioner, v. CITY OF AUSTIN et al., Respondents.

STATE of Texas, Petitioner, v. CITY FO DALLAS et al., Respondents.

Nos. A-7173, A-7174.

Supreme Court of Texas.

Jan. 6, 1960.

Rehearing Denied Feb. 17, 1960.

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

Doren R. Eskew, City Atty., Austin, for City of Austin.

Ed Gossett and Whitney R. Harris, Dallas, for Southwestern Bell Tel. Co.

James Wetherbee and Willis L. Lea, Jr., Dallas, Looney, Clark, Mathews, Thomas & Harris, Franklin W. Denius, Austin, with above firm, for Southern Union Gas Co.

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

H. P. Kucera, City Atty., Dallas, for City of Dallas.

Warren J. Collins and Howard Norris, Dallas, for Lone Star Gas Co.

W. Autry Norton and Jos. Irion Worsham, Dallas, for Dallas Power & Light Co.

WALKER, Justice.

These declaratory judgment actions place in issue the constitutionality of Article 6674w-4, Vernon's Ann.Tex.Civ.Stat. which wa enacted by the Legislature in 1957 as part of House Bill 179. Acts 1957, 55th Leg., p. 724, ch. 300, § 4A. The statute provides that the relocation of utility facilities necessitated by the improvement of highways established as part of the National System of Interstate and Defense Highways shall be made by the utility at the cost and expense of the state provided such relocation is eligible for Federal participation. It evidently was adopted for the purpose of securing the benefits of the Federal-Aid Highway Act of 1956, which authorizes the use of Federal funds to reimburse the state for the cost of relocating utility facilities in the same proportion as such funds are expended on a given project, with the proviso that Federal money shall not be used for that purpose when payment to the utility violates either state law or a legal contract between the utility and the state. See 23 U.S.C.A. § 123.

The two suits, which have been consolidated for submission on appeal, were instituted by the Attorney General in the name of the State of Texas, petitioner, one against the City of Dallas, Southwestern Bell Telephone Company, Dallas Power & Light Company, and Lone Star Gas Company, respondents, and the other against the City of Austin, Southwestern Bell Telephone Company, and Southern Union Gas Company, respondents. These municipalities and companies have various utility facilities located within the rights of way of city streets, alleys and other public places in the corporate limits of Austin and Dallas, and it will be necessary to relocate the same in connection with the improvement and construction of designated interstate highways. Respondents have taken the position that they are entitled to be reimbursed for the cost of doing this as provided in Article 6674w-4, while petitioner insists that the statute is unconstitutional. The law was upheld by the trial court, and the Court of Civil Appeals affirmed. Tex.Civ.App., 319 S.W.2d 767. We affirm the judgment of the Court of Civil Appeals.

Petitioner's first four points of error in this Court assert that Article 6674w-4, to the extent that it authorizes the use of public funds to pay part of the cost of relocating utility facilities now situated in public ways and owned either by a municipality in its proprietary capacity or by a utility company, contravenes the Texas Constitution in that such payment would constitute: (1) a grant of public moneys to corporations and individuals in violation of Article III, Section 51, Vernon's Ann.St.; (2) a gift or loan of the credit of the state in violation of Article III, Section 50; (3) a release of the obligations of corporations and individuals in violation of Article III, Section 55; and (4) an appropriation for private or individual purposes in violation of Article XVI, Section 6. These four points are closely related and have been grouped by petitioner for purposes of argument.

In the absence of assumption by the state of part of the expense, it is clear that respondents could be required to remove at their own expense any installations owned by them and located in public rights of way whenever such relocation is made necessary by highway improvements. See City of San Antonio v. Bexar Metropolitan Water District, Tex.Civ.App., 309 S.W.2d 491 (wr. ref.); City of San Antonio v. San Antonio St. R. Co., 15 Tex.Civ.App. 1, 39 S.W. 136 (wr. ref.); State of Tennessee v. United States, 6 Cir., 256 F.2d 244. As pointed out in the Bexar Metropolitan Water District case, the main purposes of roads and streets are for travel and transportation. While public utilities may use the same for laying their lines, such use is subject to reasonable regulation by either the state, the county or the city, as the case may be. The utility may always be required, in the valid exercise of the police power by proper governmental authority, to remove or adjust its installations to meet the needs of the public for travel and transportation.

There is no material difference in this respect between a utility company and a municipal corporation. For many years the cities and towns of Texas have enjoyed exclusive dominion and control over the streets, alleys and other public places within their respective corporate limits, but this was pursuant to a statutory delegation of authority. See Articles 1016, 1146 and 1175, Vernon's Ann.Tex.Civ.Stat. The Legislature acting for the state has primary and plenary power to control and regulate public roads and streets. It may delegate that power to counties or municipal corporations, but such a grant of authority may be revoked or modified at any time. See Robbins v. Limestone County, 114 Tex. 345, 268 S.W. 915; West v. City of Waco, 116 Tex. 472, 294 S.W. 832; 64 C.J.S. Municipal Corporations §§ 1686, 1689. The statutory power of cities and towns over public ways within their corporate limits has now been abridged by Sections 2 and 5 of House Bill 179. See Articles 6674w-1 and 6674w-5, Vernon's Ann.Tex.Civ.Stat. It is there provided that the State Highway Commission shall have the power to construct, maintain and operate designated state highways in any area of the state, whether in or outside the limits of any municipal corporation, and that the exercise of such power shall qualify and render inexclusive the dominion of any city or town with respect to the specific streets, alleys or other public ways affected thereby.

The Legislature, if it had decided to do so, could also have provided that any utility facilities standing in the way must be moved at the owner's cost. Respondents recognize that such a requirement would be valid and enforceable. Many city ordinances as well as several of our statutes authorizing utility companies and municipal corporations to erect their lines along and upon public roads and streets stipulate that the owner of the facility may be required to relocate the same at its own expense so as to permit road and street improvements. See Articles 1433, 1433a, 1436a, and 1436b, Vernon's Ann.Tex.Civ.Stat. These statutes and ordinances express the public policy of the state as it existed at the time of their adoption. Subject to constitutional limitations, however, that policy may be changed by the Legislature at any time. See McCain v. Yost, 155 Tex. 174, 284 S.W.2d 898; Scarborough v. Payne, Tex.Civ.App., 198 S.W.2d 917 (wr. ref.).

After the occurrence of events which under the law then existing give rise to an obligation on the part of an individual or corporation to the state, the Legislature has no power to release or diminish that obligation without consideration. Empire Gas & Fuel Co. v. State, 121 Tex. 138, 47 S.W.2d 265. See also Delta County v. Blackburn, 100 Tex. 51, 93 S.W. 419. Moreover, the use of public money to pay a claim predicated on facts which generate no state liability constitutes a gift or donation in violation of our Constitution. See Tompkins v. Williams, Tex.Com.App., 62 S.W.2d 70. Respondents could not, therefore, be reimbursed for all or any part of the expense incurred by them in relocating their lines prior to the adoption of House Bill 179. But the statute does not operate retrospectively, and respondents claim no right to reimbursement for costs incurred before it became effective.

Although petitioner argues otherwise, it cannot be said that respondents are under an absolute and continuing legal obligation to relocate at their own expense any utility installations owned by them and situated in public ways whenever such relocation is made necessary by highway improvements. Their use of streets and highways for this purpose is simply subject at all times to a valid exercise of the police power of the state. It is only when the full measure of that power is exerted that they are obligated to make the installations conform to highway improvements at their own expense. This duty would arise upon, and not before, the making of a lawful demand for relocation of the facilities. Here the Legislature has empowered the State Highway Commission to construct interstate and defense highways and to direct municipalities and utility companies to relocate their facilities. That grant of authority is conditioned, however, by the requirement that the utilities be reimbursed for the expense which they incur. In our opinion this does not constitute the release of an obligation to the state within the meaning of Article III, Section, 55, of the Constitution. See State ex rel. Jones v. Chariton Drainage District No. 1, 252 Mo. 345, 158 S.W. 633.

Article 6674w-4 obviously does not involve a gift or loan of the credit of the state unless it can be said that payment of relocation costs amounts to a grant of public money in violation of Article III, Section 51. The purpose of this section and of Article XVI, Section 6, of the Constitution is to prevent the application of public funds...