Untitled Texas Attorney General Opinion ( 1950 )

AUSTIN. TEXAS
January 23, 1950
Hon. Bascom Giles, Commissioner
General Land Office
Austin, Texas Opinion No. V-987
Re: Constitutionality of Article
7467b, V.C.S.. relinquish-
ing the title to abandoned
river beds in Counties over
350,000.
Dear Sir:
The question for opinion is stated in your letter as fol-
lows :
“I respectfully request your official opinion as
to the constitutionality of House Bill No. 336, Chap-
ter 372, Acts of the 51st Legislature, 1949, codified
in Vernon’s Annotated Civil Statutes as Article 7467b.
“I have at hand applications from J.M. Shaw and
A. Raymond Jones for the purchase of .434 acres and
.386 acres, respectively, of the abandoned Trinity
River bed in the City of Dallas, Texas, situated near
the intersection of Industrial Blvd. and Corinth Street.
Many other areas in the City of Dallas are subject to
the provisions of this Act.
“The question has arisen as to the sufficiency of
the consideration of $10.00 per acre provided for in
said Act for the sale of these lands. The question has
also arisen as to the reasonableness of the cause for
including in said Act beds and channels of abandoned
rivers in counties with a population in excess of 350,-
000 and excluding those with a population of less than
350,000. This Department, of course, has formulated
no policy under the administration of this law, as the
above named applications are the first to be consider-
ed under same.”
The Act referred to in your letter provides as follows:
“Section 1. In all counties of this State having a pop-
ulation in excess of three hundred and fifty thousand (350,-
Hon. Bascom Giles, page 2 (V-987)
000) according to the last preceding Federal Census,
the State of Texas hereby relinquishes, quit,claims
and grants unto the adjacent landowners all right,
title and interest of the State of Texas in and to all
of the beds and channels of all rivers and streams
that are now, or that may hereafter be, abandoned
by reason of the construction of new beds or chan-
nels for such rivers or streams by levee improve-
ment districts, drainage districts, or flood control
districts organized and created under the laws of
the State of Texas or by special Act of the Legisla-
ture of the State of Texas, where such abandonment
is provided under an approved plan of reclamation.
“Sec. 2. The landowners adjacent to such aban-
doned bed or channel, shall own that portion of such
bed or channel adjacent to their respective lands,
and to the middle of such abandoned bed or channel.
“Sec. 2a. Any claimant to any portion of said
land may perfect his title by applying to the Commis-
sioner of the General Land Office to purchase the
land claimed. Such application shall be accompanied
by field notes of the tract claimed together with filing
fee of One Dollar ($1) and evidence of such claimant’s
right and title. Upon receipt of a satisfactory applica-
tion and satisfactory showing of right, such applica-
tion shall be approved and the land awarded to the ap-
plicant. Within sixty (60) days after such award. the
applicant shall pay to the Commissioner of the Gener-
al Land Office for the use and benefit of the public
school fund the sum of Ten Dollars ($10) per acre for
the land, and upon receipt thereof, the Commissioner
shall issue to the claimant a patent to the land. The
Commissioner is hereby authorized to make such rules
and regulations as may be appropriate and necessary
to accomplish the purpose of this Act.
‘Sec. 3. Whenever a bed or channel of a river or
stream has been filled und,er an approved plan of rec-
lamation as provided by law. or where an approved
plan of reclamation provides for the filling of a bed
or channel of a river or stream. such fact shall be con-
clusive evidence of the abandonment of such bed or
channel. Nherever an approved plan of reclamation
provides that a bed or channel of a river or stream
shall be used for the transmission or storage of storm
waters. such fact shall be conclusive evidence that such
bed or channel has not been abandoned.
4
Hon. Bascom Giles, page 3 (V-987)
‘Sec. 4. Nothing herein contained shall be con-
strued as affecting in any manner the rights of the
State, cities, counties, any other political subdivision
of the State, public utility companies. or of the public,
in and to the streets, alleys, roads, parks, levees,
flood control works, water lines. sewer lines, gas
lines, oil lines, power lines, railroads, or other pub-
lic utility lines. where the same now occupy or cross
any abandoned river bed or channel, provided further,
that nothing herein shall be construed as affecting in
any manner the validity of oil, gas and other mineral
leases, heretofore executed. or that may be hereafter
executed by the State prior to the abandonment of such
bed or channel.
‘Set, 5, Wherever the term ‘approved plan of rec-
lamation’ is used herein, it shall be construed to mean
a plan of reclamation approved by such authority or
authorities as are in such cases provided by the laws of
the State of Texas.
“Sec. 5a. All minerals in any land donated under
the provisions of this Act are hereby reserved to the
State of Texas.
“Sec. 6. The provisions of this Act shall not ap-
ply to that portion of the river bed situated within the
corporate limits of San Antonio, Texas.*
The various constitutional provisions dealing with the pub-
lic free school iund have no application here. State v. Bradford.
121 Tex. 515, 50 S.W.2-1 1065. 1072 (1932). The only provision of the
Texas Constitution which may apply is Article III, Section 51, which
provides, in part, as follows:
“The Legislature shall have no power to make any
grant or authorize the making of any grant of public
money to any individual, association of individuals.
municipal or other corporations whatsoever. . s .*
The foregoing constitutional provision refers only to grants
of public money. Nevertheless, our courts have strongly intimated,
without expressly so holding, that it applies to property rights as
well. See State v. Bradford (supra); Rhoads Drilling Co. v. Allred,
123 Tex. 229 70 S W Ld 576 581 (1934) Friedman v. American Sur-
ety co., 137 ‘Tex. 149, 151 S.WN.2d 570. j-1) Barber v. G-iles.
lTF%k. 401, 208 S.W.2d 553 (1948). We assum: for th e purpose of
this opinion that Article III, Section 51, applies to the abandoned bed
areas in question.
Hon. Bascom Giles. page 4 (V-987)
Standing alone, Section 1 of Article 7467b. constitutes a
grant of land without consideration in violation of said Article III,
Section 51. It was, doubtless, for this reason that Section 2a was
enacted under which the applicant could perfect his title by paying
$10 per acre to the State. If the Act is construed as not constitut-
ing a present conveyance of the State’s title, under which the ad-
jacent landowner may or may not elect to obtain the patent pro-
vided for in Section 2a, his title being transferred by operation of
the Act itself and regardless of whether he pays the $10 per acre
or not, then it is invalid. However, the Act is also subject to the
construction that title does not pass automatically but only after
application has been made, $10 per acre paid and the patent is-
sued. If so construed. the Act is valid. It is well settled that if
an Act is subject to two constructions, one of which will render
it unconstitutional, the construction to be adopted is the one
which will render the same constitutional, it being assumed that
the Legislature intended that the Act be so construed. Green v.
Robison, 117 Tex. 516, 8 S.W.Zd 655(1928);:Empire Gas 81 Fuel
Co. v. State, 121 Tex. 138, 47 S.W.Zd 265, 27m ; and 9 ‘l‘ex.
3ur. 483.
It is our construction of the Act, therefore, that no pre-
sent title to the land passes automatically to the adjacent land-
owners, but passes, if at all, only after application and compli-
ance with the procedure set forth in Section 2a. The Act is a
Sales Act.
The question of the adequacy of the consideration is sug-
gested by your letter.
The power to control the disposition of the land of the
State resides in the Legislature, and the matter of determining
the adequacy of the consideration to be received therefor is a
political matter exclusively within their province. Conley v.
Daughters of the Republic, 106 Tex. 80. 156 S.W. 197, 157 SW.’
aples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 177
erial Irrigation Co. v. Jayne. 104 Tex. 395, 138 SW.
; 38 Tex. Jur. 85b. Whether the Legislature has acted
wisely in this instance or whether the consideration to be re-
ceived represents the true market value of the land are matters
within legislative province with which neither the courts nor
this office have any connection, provided, of course, no consti-
tutional provisions are violated. Treating the Act in question
as a Sales Act. and we think it must be so treated, the Act is
constitutional, and the question of the adequacy of the considera-
tion being purely legislative does not affect the constitutional as-
pects of the problem.
As you point out, the Act covers only counties having a
population of 350.000, or more, according to the last preceding
bv-field notes of the tract claimed tcmether with filine
Hon. Bascom Giles, page 5 (V-987)
Federal census. At present the Act applies only to Dallas and
Harris Counties. We take it from your letter that you feel that
the Act may violate that portion of the Constitution under which
“the Legislature shall not . . . pass any local or special law” in
certain enumerated instances and also “where a general law can
be made applicable.” Texas Constitution, Article III, Section 56.
The subject matter of the Act in question is not among
the enumerated instances concerning which special laws are pro-
hibited. If the Act fails because of this provision of the Constitu-
tion, it is because a general law could be made applicable. Our
courts have held that the question of determining whether a gen-
eral law can be made applicable is a question for the Legislature
and that its action in passing the law. if not conclusive, is at least
persuasive, that a general law would not be applicable. 39 Tex.
Jur. 63. In any case. it seems that if the classification set forth
in the Act is prospective so as to permit the future entrance into
the class when the enumerated qualifications and standards have
been met, and when the classification is reasonable, in the sense
that it is broad enough to include a substantial class, then the
same is a general rather than a special law. Miller v. El Paso
County, 136 Tex. 370, 150 S.W.Zd 1000 (1941); 2 Sutherland Statu-
toryConstruction (3rd Ed.) 20. We believe that the Act satis-
Ties these requirements. The fact that the bed of the river with-
in the corporate limits of San Antonio is excluded does not change
this result since the exclusion of such river bed is reasonable.
See Anderson v. Polk, 117 Tex. 73, 297 S.W. 219 (1929) which rec-
ognizes that San Antonio acquired title to the bed of the San An-
tonio River under the grant from Spain to such city.
In our opinion, the Act is constitutional.
He wish to call your attention to Article 7467a, which pro-
vides as follows:
“The State of Texas hereby relinquishes. quit
claims and grants unto all incorporated cities and
towns that have a population of forty thousand inhab-
itants, or more, according to the 1920 census, all of
the beds and channels, and also all of the abandoned
beds and channels, of all rivers. streams and other
channels that are now or that may hereafter be with-
in the present or future corporate limits of such
cities or towns, in so far as the beds and channels,
and such abandoned channels, of such rivers. streams
and other channels may be owned or claimed as the
property of said State. (Acts 1925, 39th Leg., ch. 155,
p. 366, sec. l).”
Hon. Bascom Giles, page 6 (V-987)
Dallas and Harris Counties are the only counties pres-
ently covered by Article 7467b. Several Texas cities are cover-
ed by Article 7467a. but of these, only two lie within Dallas or
Harris Counties. i.e., Dallas and Houston. Articles 7467a and
7467b conflict insofar as abandoned river bed areas are located
within the corporate limits of Dallas and Houston. This poses a
serious question as to the validity of any title which may issue
under Article 7467b. If patents issue to the areas within the
Dallas City Limits upon which applications are now pending. they
will pass whatever present right and title the State has, but we
do not pass on the nature or extent of this title or the relative
rights which may then exist between the patentee and the City of
Dallas.
SUMMARY
4 Article 7467b, V.C.S., Acts 51st Leg., R.S.
1949. ch. 372, p. 708, purporting to relinquish
. and grant to adjacent landowners in all counties
having a population in excess of 350,000, accord-
ing to the last Federal Census, the title to beds
and channels of abandoned rivers and streams
is a sales act and does not automatically pass
title to the land. The Act does not violate Sec-
tions 51 and 56 of Article III, Constitution of
Texas.
APPROVED: Yours verytruly, ‘: ‘~
Charles D. Mathews PRICE DANIEL
Executive Assistant Attorney General
Assistant ’’