503
                                                                                                      R-105




                           :’              ‘.~.

PRICE   DtiIEi
AITORNBY GENERM                                   ..    Mar;lq,1947~               ’      :,   :.::
                            :    :    ‘,

           Hon. Clayton Bray :                         ;~            opinio~~d.        V-89    .-     “‘.
           County Attorney
                            I
           suttoli col+y                                            .Re:     Auth&hy of the Co&y as
           Sonora,.Texas                                .,’ ‘,,              agent’,for the State Highway
                                                                             Department to pay for con-
                                                                             demnation awards for’city
                                                                             property and a related mat-
                                      .’ 1
                                                                  .~.’       ter.
                                                              .;.    ..           .-::.
           Dear Mr. Brar        ’ ”                         .: ,... ...-..
                      Your request for an opinion of this Department &sub-
           stantially
                  .   as follows:       . ‘_: _,.,
                        “J%G~‘th&$ate Ijighv&y Department has’deeig-’                                 ”,
                   ndted. a route thio.ugh’an’in+porhtcd    .$ity ~ofless
                   thag ‘5,000, havbg’au aotive,‘cit): government, does
                   the Countyas itgeixy for klie c.opde+ctation in behalf
                   of the Hfghway Department.,,..h”ve,$I pay ‘the ‘condem-                                  :
           . ..    nation’awaid to the’ciiy property bw’+~s, affected?:                                :
             : .
                          TThe city had ~r&ri&siy agreed’izifoimally to
      .’           share   the cost of’coridi&iation tithinthe city lim-
                   its; now, the city pleads lack of funds for such pro-
                   ject.,                     ._
                        ‘I am familiar witli .the ‘proposition that’the
                   C&&y may, by agreement withthe city, maintain
                   a ‘county road within the city’ liniits but my prob-
                   lem is, as stated above, virhetherthe County can
                   be compelled topay for the condemnat#on awards
                   *thin the city l&its on a designated State High-
                   way Route, so routed and designated by the State
                                                            .,  j.
                   Highway Dep,artment.

                        ‘Obviously, the damages under condemnation
                   in a city ‘would be greater xvher,elots’and home’s
                   are concerned than in the county proper where only
                   acreage is involved.
                                                   .       ‘.
                         “Also. does condemnation contemplate as corn-                                          .
                    pensable damage the expense of drilling a water
                   ‘well, moving a house, repairing incidental damage
                                        c




Hon. Clayton Bray, Page 2                            Opiaion No. V-89



      caused to the house by moving, and extending and
      reconnecting plumbing, and such related items of
      expense? m

            The Supreme Court, in Norwood vs. Gonzales County,
 14 S. W. 1057, held that a Commissioners’ Court had ao authority
 to lay out a highway within the corporate limits of an incorporated
 town. It was there said that “the circumstances under which a
 County Commissioaers’ Court may assume authority over the
 streets of incorporated citieb, and control them as pub&roads,
.were defined, for the first time by the Act of the Legislature of
March 14, 1885.. The Act of 1885 referred to now appears as a
part of the Revised Statutes of 1925, Article 6703, which as to that
 subject reads:

           “Said Court shall assume and have control of
      the streets and alleys in all ‘cities and incorporated
     ‘towns in Texas which have ao de facto municipal
      gove-ent.in    the active discharge of their official
     .duties.”         .

            The above statute, by the clearest implication, denies
such authority as to incorporatedcities    and towno that do have a
de jure or de facto government. It therefore results that the deci-
sion in Norwood v. Gonzales County, supra, is not only affected by
Article 6703, as it may apply to this case, but that statute shows
a legislative construction in conformity with the Supreme Court’s
decision. (City of Breckenrwge v. Steph.eno County, 26 S. W. (2d)
405.) The Stephens County case was later reversed by the Supreme
Court (40 S. W. (2d) 43) but.in .so doing, the Court did not overrule
the Norwood case as is clearly shown from the following quotation:

           -Of course, the town or ‘city governing board
      primarily has paramount jurisdiction of the streets
      and highways thereof, and the Commissioners’ Court
      would have no authority to improve streets or high-
      ways within municipalities * conflict with the juris-
      diction of the c@y to improve the same.”

           The Stephens County case related to a street constituting
a State highway and was decided after the transfer of the jurisdic-
tion of Commissioners’ Courts to the Highway Commission, as to
State highways, under provisions of said Article 6673 and the above
quoted excerpts certainly lend no support to the proposition that it
transferred all jurisdiction of city authorities over State highways
in the corporate limits of a city.

          Article   6673, V.A.C.S.,   provides in part as follows:
Hon. Clayton Bray, Page 3                        Opinion No. V-89



          ”
            . . . The Commission is authorized to take
      over and maintain the various State highways in
      Texas, and the counties through which said high-
      ways shall pass shall be free from any costs, ex-
      pense, or supervision of such highways . . .*

            In the case of Gabbert v. City of Brownwood, 176 S. W.
(2d) 344 (writ of error refused) a suit was initiated to recover for
personal injuries as a result of alleged negligence on the part of
the City of Brownwood. The case raised the question for decision
as to whether, under the pleadings and the uncontroverted evidence,
the City of Brownwood had jurisdiction of this particular section of
the State Highway within its limits where the accident occurred, or
whether the transfer of jurisdiction over State highways in a county
from the County Commissioners* Court of such County to the State
Highway.~C+nmission effected likewise a transfer of the jurisdiction
of the cities and towns in such counties over State highways in such
cities and towns to the State Highway Department. Judge Funder-
burk, speaking for the Court, said:

           “Viewing the subject matter as jurisdiction,
     there is a clear implication in Article 6673 that
     the jurisdiction which it transferred to the State
     Highway Commission was the ,jurisdiction which
     Commissioners’ Courts theretofore had over such
     parts of state highways as were within the several
     counties. Such implication results from the clause
     reading ‘and the counties through which said high-
     ways pass shall be free from any cost, expense or
     supervision of such highways.’ Why express then
     relief of counties from ‘any cost, expense or sup-
     ervision’ and say nothing of the cost, expense and
     supervision by cities and towns, if the intended
     transfer was to affect both alike? Is not the con-
     clusion inescapable that the only jurisdiction trans-
     ferred was that theretofore possessed by county
     commissioners* courts?      Under familiar princi-
     ples the Legislature must be presumed to have
     been cognizant of the existing decisions and must
     have known that a transfer of only such jurisdic-
     tion as commissioners’ courts had would not im-
     ply the transfer of such jurisdiction as cities and
     towns had. Therefore, we think, charter provisions
     or other statutes giving cities and towns jurisdic-
     tion over highways therein remained special pro-
     visions, while Article 6673, although special in its
     relation to Article 6703, was general as to such
     charter provisions and said other statutes. In this
     view the Legislature, while it could have transferred
                                              4
Hon. Clayton Bray, Page 4                           Opinion No. V-89



      jurisdiction of cities and towns over particular
      highways therein to the State Highway Depart-
      ment, nevertheless, neither expressed nor im-
      plied any intention to do s0.v

           Article   6673-b of Vernon’s Annotated Civil Statutes, pro-
vides as follows:

            ‘The State Highway Commission is hereby
      authorized and empowered, in its discretion, to
      enter into contracts 0,r agreements with the gov-
      erning bodies of incorporated cities, towns, and
      villages, whether incorporated under the General
      Laws, providing for the location, relocation, con-
      struction, reconstruction, maintenance, control,
      supervision, and regulation of designated State
      highways within or through the corporate limits,
      of such incorporated cities, towns, and villages.
      and determining and fixing the respective liabili-
      ties or responsibilities of the parties resulting
      therefrom; and such incorporated citie.8, towns,
      and villages are hereby authorized and empowered,
      through the governing bodies of such cities, town,
      and villages to enter into such contracts or agree-
      ments with the State Highway Commission.”

            Article-6674n,   Vernon’s Annotated Civil Statutes, pro-
vides. as follows:

           “Whenever, in the judgment of the State High-
      way Commission. the use or acquisition of any land
      for road, right of way purposes, timber, earth.
      stone, gravel or other material, necessary or con-
      venient to any road to be constructed, reconstruct-
      ed, maintained, widened, straightened or lengthened,
      or land not exceeding one hundred (100) feet in width
      for stream bed diversion in connection with the lo-
      cating, relocating or construction of a designated
      State Highway by the State Highway Commission, the
      same may be acquired by purchase or condemnation
      by the County Commissioners Court. Provided that
      the County in which the State Highway is located
      may pay for same out of the County Road and Bridge
      Fund, or any available county funds.

           “Any Commissioners Court is hereby author-
      ized to secure by purchase or by condemnation on.
      behalf of the State of Texas, any new or wider right
      of way or land not exceeding one hundred (100) feet
      in width for stream bed diversionin connection with
Hon. Clayton Bray, Page 5                         Opinion No. V-89



     the locating; relocating or construction of a desig-
     nated State Highway,‘or gland or lands for material
     or borrow pits, to be used in the construction, re-
     construction or maintenance of State Highways and
     to pay for the same out of the County Road and
     Bridge Fund, or out of any special road funds or
     any available county funds. The State Highway
     Commission shall be charged with the duty of fur-
     nishing to the County Commissioners Court the
     plats or field notes of such right of way or land
     and the description of such materials as may be
     required, after which the Commissioners Court
     may, and is hereby authorized to purchase or con-
     demn the same, with title to the State of Texas, in
     accordance with such field notes. Provided that in
     the event of coudemnation by the County the proce-
     dure shall be the same as that set out in Title 52,
     Articles 3264 to 3271, inclusive; Revised Civil Stat-
     utes of Texas, of 1925. Provided that if the Caunty
     Commissioners     Court of any.County in which such
     right of way is, in the judgment of the State High-
     way Commission, necessary for the construction
     of a part of a designated State Highway shall fail or
     refuse to secure by purchase or by condemnation
     for or on behalf of the State of Texas, such right of
     way or part thereof, immediately and as speedily
     as possible, under said Title 52, Articles 3264 to
     3271, inclusive, Revised Civil Statutes of Texas, of
     1925, after being served with a copy of an order of
     the State Highway Commission identifying .by field
     notes, the part of the Highway necessary for the
     construction of such designated State Highway and
     requesting such County Commissioners       Court to
      secure same, then and in such event and within
     ten (10) days after the service of such notice, said
      State Highway Commission shall direct the Attor-
     ney General of Texas, to institute condemnation
     proceedings in the name of the State of Texas for
      the purpose of securing such right of way. The
      right of eminent domain to condemn any part of a
      right of way for a State designated. highway, under
     the conditions herein set out is hereby conferred
      on the State Highway Commission and the jurisdic-
     tion for the~exercise of such right is hereby con-
      ferred on the County Court of Travis County. Such
      condemnation proceedings shall .be instituted .by the
      Attorney General by filing a statement ~for condem-
      nation with the County Judge of Travis County. Tex-
      as, and the venue of such proceeding shall be in
      Travis County, Texas, and jurisdiction and authority
Hon. Clayton Bray, Page 6                           Opinion,No. V-89



      to appoint three (3) disinterested freeholders of
      Travis County, Texas, as Commissioners is here-
      by conferred upon the County Judge of Travis
      County, Texas, and otherwise such condemnation
      shall be according to the provision of said Title 52,
      Articles 3264 to 3271, inclusive, Revised Civil
      Statutes of Texas, of 1925.’

           The opinion in Gabbert. et al v. City of Brownwood, su-
pra, further states:

           ‘The conclusion seems to us to be inescapable
      that the effect of Article 6673 was to confer upon
      the State Highway Department only the. former
      jurisdiction of county commissioners’ courts, which
      although in terms broad enough to include the for-
      mer jurisdiction of cities and towns, did not do so,
      for the very same reason they were not included in
      the jurisdiction of county commissioners* courts
      which said Article transferred to the Highway De-
      partment.

           ‘More effective than Article 6673b as indi-
      cating legislative construction of Article 6673 is
      Article 6674n authorizing commissioners’ courts
      at county expense, but only as agents of the State
      Highway Department, to condemn lands and mate-
      rials for ‘construction, reconstruction, or mainte-
      nance of State Highways.’ Will it be contended that
      this empower6 county commissioners’ courts to
      condemn lands and materials in the city limits of
      an incorporated city or town for state highway pur-
      poses?   Why should the power be exercised at coun-
      ty expense rather than city or town expense 7 ” LI

           Article   1016 of Vernon’s Annotated Civil Statutes, pro-
vides as follows:

           “Any incorporated city or town containing not
      more than five thousand population in this State
      shall have the exclusive control and power over
      the streets, alleys, and public grounds and high-
      ways of the city, and to abate and remove encroach-
      ments or obstructions thereon; to open, alter, wid-
      en, extend, establish, regulate. grade, clean and
      otherwise improve said streets; to put drains or
      sewers therein, and prevent incumbering thereof
      in any manner, and to protect same from encroach-
      ment or injury; and to regulate and alter the grade
Hon. Clayton Bray, Page 7                         Opinion No. V-89



      of premises; to require the filling up and raising
      of same; and ‘such city council shall also have
      power to alter or vacate the Halleyin any block of
      ground in the city upon written application of the
      owner of the block, or if there be more than one
      owner of such block, then upon the written,appli-
      cation of all owners thereof uniting in such appli-
      cation, such alley so vacated shall thereupon re-
      vert to and become the property of the owner of
      the block of which it was a part, or if more than
      one, then to the owners of the adjoining lotsthere-
      in, each extending to the center of the alley so
      vacated. *

           In the case of Adams&   al v. Rockwall County (Comm.
App.) 280 S. W. 759, it was held that the County of Rockwall did
not have the power to condemn land for road purposes within the
corporate limits of the town of Royse. In discussing the above
quoted Article, the Court stated as follows:

           “There does not appear to be an ambiguity in
     the language employed by the Legislature to ex-
     press its intent as to what agency should exercise
     control over the highways within incorporated
     cities aad towns, or as to the exclusive nature of
     that control.”

          i the case of Benat v. Dallas   County, 266 S. W. 539,
the Court stated:

           “Except in cases coming within the scope of
      some general or special statute in which authority
      is explicitly conferred, counties are without au-
      thority to lay out or control streets and highways
      of the incorporated cities and towns, or to have
      property condemned for such purposes.”

            The Court was of the opinion that the Commissioners’
Court of Dallas County had no power to take land by eminent do-
main proceedings within an incorporated city and their filing of
a petition to condemn land did not confer jurisdiction. If they
have no power to condemn land within the cities, clearly, they
could not be compelled to pay for such condemnation awards as
agents of the State Highway Department.    Therefore, it is the
opinion of this Department that a county as agent for the State
Highway Department may not be compelled to pay the condem-
nation award to a city property owner whose property has been
condemned for State highway purposes.
         Hon. Clayton Bray, Page 8                        Opinion No. V-89



                    In view of the foregoing answer, a discussion of your
 .       question of compensable damages relating to the drilling of a wat-
i ....   er well, moving a house and repairing incidental damage is not
         deemed necessary.


                                  SUMMARY

                    Inasmuch as a county may not condemn land
               within an incorporated city or town, by the same
               token, a county may not be compelled, as agent
               for the State Highway Department, to pay the con-
               demnation award to city property owners whose
               land is condemned. (Articles 6673 and 6703, R.C.
               S. 1925; Gabbert, et al v. City of Brownwood, 176
               S. W. (2d) 344; City of Breckenridge v. Stephens
               County, 26 S. W. (2d) 405; and Benat v. Dallas
               County, 266 S. W. 539.)

                                              Yours very truly,

                                        ATTORNEYGENERALOFTEXAS




                                               Burnell Waldrep
                                               Assistant

         BW:djm:sl

                                        APPROVED     MAR 20 1947


                                         z&      e.hL&LP
                                        ATTORNEYGENERALOFTEXAS