Untitled Texas Attorney General Opinion ( 1952 )

Hon. Ben Ramsey Opinion NO. v-1569
Lieutenant Governor
Austin, Texas Re: The statutes under which
cities and towns are now
authorized to negotiate
Dear Sir: mineral leases.
Your request for an opinion reads In part as
follows.
"It has been pointed out to me that
Article 1~67, R.C.S., enacted in 1919, and
Article 5400a, R.C.S., enacted In 1937, are
In conflict in several respects; provided
and only If Article 5400a applies to cities
and towns. These conflicts will be readily
apparent to you without my calling them ex-
pressly to your attention.
,I
, . ” .
"May I therefore request that you
officially advise me whether Article 1267
alone governs cities and towns as therein
described as to the leasing of their oil
or other mineral lands, or whether Article
5400a is the controlling statute, or whether
both articles must be read together in order
to determine the rights of a city to make a
mineral lease and the proper procedure for
so doing."
Article 1267, V.C.S. (Acts 36th Leg.,R.S. 1919,
ch. 117, p. 183), atithorizes cities and towns to lease
their land for mineral development as follows:
,
Hon. Ben Ramsey -’ Page 2 - v-1569
“Cities and towns chartered or organized
under the general laws of Texas, or by special
Act or charter, which may own oil or mineral
lands, shall have the power and right to lease
such oil or mineral lands for the benefit of
such town or city, but shall not lease for
such purposes any street or alley or public
square In said town or city, or any land there-
in dedicated by any person to public uses in
such town or city; and no well shall be drilled
within the thickly settled portion of any city
or town, nor within two hundred feet of any
private residence.”
Article 5400a, V,C.S. (Acts 45th Leg., R.S.1937,
ch. 279, p. 568), grants the same power to political sub-
divisions of the State of Texas as follows:
“Section l., Political subdivisions which
are bodies corporate with recognized and de-
fined areas, are hereby authorized to lease
for mineral development purposes any and all
lands which may be owned by any such political
subdivision.
“Set; 2. The right to lease such lands
shall be exercised by the governing board,
the commission or commissioners of such po-
litical subdivision which are by law con
stltuted with the management, control, and
supervision of such subdivision, and when
In the discretion of such governing body
they shall determine that It is advisable
to make a lease of any such lands belonging
to such district or subdivision, such govern-
ing body shall give notice of its intention
to lease such lands, describing same, by
publication of such notice In some news-
paper published in the county, having a
general circulation therein, once a week
for a period of three (3) consecutive weeks,
designating the time and place after such
publication where such governing body will re-
ceive and consider bids for such mineral leases
as such governing body may determine to make.
On the date specified in said notice, such
governing board or body shall receive and con-
sider any and all bids submitted for the leasing
Hon. Ben Ramsey - Page 3 - v-1569
of said lands or any portions thereof which
are advertised for leasing, and in the dis-
cretion of such governing body shall award
the lease to the highest and best bidder
submitting a bid therefor, provided that If
In the judgment of such governing body the
bids submitted do not represent the fair
value of such leases, such governing body
in their discretion may reject same and
again give notice and call for additional
bids, but no leases shall In any event be
made except upon public hearing and con-
sideration of said bids and after the notice
as herein provided.
“Sec.2a. Provided that all such leases
may be granted by public auction Andy that no
leases shall be executed In any case except
and unless the lessor shall retain at least
one-eighth royalty, provided further that in
no case shall the primary term of said lease
be for more than a period of ten (10) years
from the date of execution and approval
thereof .‘I
The emergency clause to Article 5400a (Acts 45th
Leg., R.S.1937, ch. 279, p.568) reads as follows:
“The fact that political subdivisions
of the State have lands owned, held, and
used for public purposes but which purposes
will not be hindered or Interfered with by
the development of said lands for mineral
purposes, and that some of said lands have
possibilities of minerals therein and that
development of said lands for mineral pur-
poses is necessary in order to conserve
said mineral estate and prevent the loss
thereof, create an emergency and an lmpera-
tlve public necessity that the Constltu-
Mona1 Rule requiring bills to be read on
three several days In each House be sus-
pended and said Rule Is hereby suspended,
and this Act shall take effect and be in
force from and after its passage, and It Is
so enacted. ”
Hon. Ben Ramsey - Page 4 - v-1569
As will be observed from the above, Article
1267 applies only to "cities and towns," while Article
5400a applies to "political subdivisions which are
bodies corporate with recognized and defined areas."
At the outset, therefore, some doubt arises as to
,whether Article 5400a should be held to include cities
and towns within its reference to "political sub-
divisions." Many Texas decisions have stated that
cities and townsare political subdivisions of the State.
Payne v. Massev. -. 145 Tex, 237. 196 S.W.2d 493 (1946);
Texas Natior la1 Guard Armorv-Board v. McGrB,~l32~ Tex, 613,
126 S.W.2d 627 (1939); City of Goose Cree k v. Hunnicutt,
120 Tex. 471, 39 S.W.2d 617 J1931); Love v, City of Dallas,
120 Tex. 351, 40 S.W.2d 20 (1931); City of Abllene v,
mte. 113 S.W.2d 631 (Tex.Clv.App. 1937, error dism.).
Cer ?i&lv- In the linht of these-decisions. it is DoSSible
to interpret the phrase "political subdivisions" as ln-
cludlng cities and towns and hence it Is possible to give
Article 5400a a construction whereby it applies to leases
by cities and towns if we are to consider nothing more
than the mere literal definition of word~s. We do not
find it necessary, however, to decide whether cities and
towns are political subdivisions within the meaning of
Article 5400a. For the purpose of this 'opinion we will
assume that they are. Thus, the question to be decided
Is whether, In the light of pertinent and well established
legal principles, Article 5400a can properly be construed
as applying to the execution of oil and mineral leases
by cities and towns. We think this question must be
answered in the negative.,
Under the assumption that cities and towns are
political subdivisions of the State, Articles 1267 and
5400a are In pari materia as to cities and towns and
should be adjusted according to the following rule In
2 Sutherland, Statutorv Construction, Sec. 5204 (3rd ed.
1943):
"General and special acts may be &
& materia. If so, they should be con-
strued together. Where one statute deals
with a subject in general,terms, and another
deals with a part of the same subject in a
more detailed way, the two should be harmo-
nized If possible; but if there is any con-
flict, the latter will prevail, regardless of
whether it was passed prior to the general
statute, unless it appears that the legislature
intended to make the .g%?neral act controlling."
Hon. Ben Ramsey - Page 5 - v-1569
In Texas the above rule has been applied
them Cole v. State, 106 Tex. 472,
In this case Article 1591,
enacted in 1911, gave the Texas courts of civil
appeals exclusive jurisdiction over certain specified
appeals. In 1913, Article 1521 was enacted giving the
Supreme Court of Texas jurisdiction over cases In which
errors of substance had been committed by the courts of
civil appeals, and it wascontended that Art. 1521 lm-
plledly repealed the specific exclusive jurisdiction
proViSiOns Of Art. 1591. The Court held that these pro-
visions must be read as exceptions to Art. 1521 and
stated the controlling rule thusly:
“Repeals by lmpllcatlon are never favored.
Laws are enacted with a view to their permanence,
and it is to be supposed that a purpose on the
part of the lawmaking body to abrogate them
will be given unequivocal expression. Knowledge
of an existing law relating to the same subject
is likewise attributed to the Legislature In
the enactment of a subsequent statute; and when
the later act is silent as to the older law, the
presumption is that its continued operation was
intended, unless they present a contradiction
so positive that the purpose to repeal is manl-
fest, To avoid a state of conflict an implied
repeal results where the two acts are in such
opposition. But the antagonism must be abso-
lute - so pronounced that both cannot stand.
~“Though they may seem to be repugnant,
if it is possible to fairly reconcile them,
such Is the duty of the court. A construction
will be sought which harmonizes them and leaves
both in concurrent operation, rather than destroys
one of them. If the later statute reasonably
admits of a construction which will allow effect to
the older law and still leave an ample field for
Its own operation, a total repugnance cannot be
said to exist, and therefore an implied repeal
does not result, since in such case both may stand
and perform a distinct office. . . .’
Similar holdings and language by Texas courts may be found
in Dendv v. Wilson, 142 Tex. 460, 179 S.W.2d 269 (1944),
where the Juvenile Delinquent Act was held to be subject
=
Hon. Ben Ramsey - Page 6 - v-1569
to certain evidentlary requirements which had previously
been enacted Into the Penal Code; Flowers v. Pecos River
R.Co., 138 Tex. 565, 186 S.W.2d 973 (1941); Bishop v.
Houston Independent School District, 119 Tex. 403, 29 S.W.
2d 312 (1930); Fortinberry v. State, 283 S.W, 146 T?x.
Comm.App. 1926); Culver v. Miears, 220 S.W.2d 201 t Tex.
Clv.App. 1949); and State v. Humble 011 & R?fK. Co., 187
S.W.2d 93 (Tex.Clv.App.1945 . In view of this authority,
It Is clear that Article 12 7 must be construed an an
exception to Article 5400a and that cities and towns, even
though they may be political subdivisions under Article
5400a, are authorized to execute mineral leashes under
the provisions of Article 1267.
That the above result conforms to the legislative
intent Is evidenced by the fact that the emergency clause
of Article 5400a declares that political subdivisions own
mlnerally rich lands and have no leasing authority. The
Legislature must be presumed to have known that Article 1267
gave cities and towns the power to lease their property for
mineral development at the time Article 5400a was enacted.
Yet, there was no repealing clause In Article 5400a. Clear-
ly, therefore, the Legislature could not have Intended for
Article 5400a to have any application to cities and towns In
the leasing of their lands for 011 and mineral development.
Ten gears after the enactment of Article 54008
the Texas Supreme Court in Cits of Beaumont v. Moore
146 Tex. 46, 202 S.W.2d 448 (1944), in discussing th; power
of cities to lease their lands, said:
"It Is not disputed that the City of Beaumont
has the power under its charter to contract gen-
erally, and, under Its charter and Article 1267,
Vernon's Ann. Civ.St., It Is authorized to sell
or lease Its real property and to warrant the tl-
tle thereto."
Moreover, In the dissenting opinion In that case, three mem-
bers of the Court recognized the authority of cities and towns
to lease their properties under Article 1267, saying:
"These considerations no doubt prompted
the legislature to authorize cities by statute
to lease city property for oil and gas. Article
1267, R.C.S.
Hon. Ben Ramsey - Page 7 - v-1569
We think that the above quoted language of the
Court in the Moore case cannot be disregarded. Even ?so>@
Article 5400a had been a part of our statutes for a decade
when the Moore case was decided, we find that all members
of the Court were looking to Article 1267, rather than
5400a, as the source of a city’s authority to execute min-
eral leases. This language of the Court, coupled with the
authorities previously discussed, substantiates the con-.
elusion we have reached that Article 1267 is controlling in
the lease of lands by cities and towns for mineral develop-
ment.
You are therefore advised that In our opinion
Article 1267 was not repealed by Article 5400a, and that
the latter must be construed as applying to political
subdivisions other than cities and towns, which, if they
may be considered political subdivlsions,care nevertheless
controlled In their oil and gas leasing by Article 12,67. Any
question as to whether remedial legislation Is necessary
In order to clearly evidence the Intent of the l,egisl.ature
as interpreted herein, or to change the law as we interpret
it In this opinion, Is a matter of discretion for the legis-
lature and not this office.
SUMMARY
Article 1267, V.C.S. (Acts 36th Leg.,
R.S. 1919, ch.117, p* 183), which authorizes
cities and towns to Issue mineral leases, was
not repe.aled by Article 5&00a, V.C.S. (Acts
45th Leg., R.S. 1937, ch. 279, p. 568), which
authorizes political subdivisions of the State
to accept bids on mineral leases, but must be
construed as an exception to the later statute
applying to cities and towns.
Yours very truly,
PRICE DANIEL
APPROVED
: Attorney General
Charles D. Mathews
First Assistant
‘Price Daniel Thomas Black
Attorney General Assistant
TB:bt