Untitled Texas Attorney General Opinion

State Board of Water Engineers
Austin, Texas
Attention: Mr. J. E. Sturrock
Gentlemen:
Opinion No. O-1993
Re: Constitutionality of Article
7500a, V.A.C.S., and the va-
lidity of the proviso contain-
ed in Section 16, Ch. 88,
General Laws, 35th Legislature;
overruling letter opinions of
the Attorney General, Stone,
July 31, 1925 and Clark, May
20, 1927; and adopting letter
opinion, Stone dated July 18,
1925 and Clark, dated May 20,
1927, and conference opinion,
Smedley dated August 25, 1917.
We have your letter of February 21, 1940, End its enclosures,
requesting that we answer the following questions:
"1. Is Article 7500a, Vernon's Revised Civil
Statutes valid?
"2 ; If Article 7500A is void, is Section 16,
‘Ch. 88, General Laws, 35th Legislature, the
law?"
You enclosed a Conference Opinion of this Department dated
August 25, 1917, written by Honorable G. B. Smedley, Assis-
tant, to the Secretary of the Board of Water Engineers, here-
after referred to as the Smedley opinion. It holds that the
proviso contained in Section 16, Chapter 88, General Laws, 35th
Legislature does not give a landowner permission to impound
or use without a permit, the water impounded by a dam or re-
servoir constructed on his own land, but that it merely gives
such person the right to construct such a dam or reservoir
without submitting his plans to the Board of Water Engineers
for approval.
Also enclosed, were ccples of letter opinions of this depart-
ment given the Board of Water Engineers as follows:
. .
State Board of Water Engineers, page 2 (O-1993)
July 18, 1925, C. L. Stone; July 31,’ 1925, C. L. Stone;
May 20, 1927, Allen Clark; and August 27, 1927, Allen
Clark. These will be referred to as the first and second
Stone opinion and first and second Clark opinion respectively.
The first Stone opinion and the first Clark opinion both hold
Section 5 (Article 7500a V.A.C.S.) Ch. 136, General Laws of
the 39th Legislature (the 1925 Act) unconstitutional, because
of the irreconcilable conflict between the caption of the 1925
Act and said Section 5. The second Stone opinion holds that
Section 16 of the 1917 Act was expressly amended by Chapter
136, General Laws of the 39th Legislature, that Section 7,
Ch. 136, General Laws of 1925, 39th Legislature, provides for
the repeal of all laws in conflict with the provisions of said
Section and Chapter, and that, therefore, no law exists autho-
rizing a person to construct on his own property a dam or re-
servoir to impound and contain water in any amount without
securing a permit therefor. The first Clark opinion also holds
that Section 5 of the 1925 Act being unconstitutional, it does
not effect a repeal of the roviso contained in Section 16,
then contained in Article 7 t96, V.R.C.S., as it read prior
to the passage of the 1925 Act now contained in the Historical
Note to Article 7496, V.A.C.S. in the new volume 21 of the
Vernon's Annotated Civil Statutes. Thus, the second Stone
opinion and the first Clark opinion are in conflict.
The second Clark opinion holds that, inasmuch as the attempted
amendment contained in the 1925 Act is void, the proviso con-
tained in Section 16 of the 1917 Act, is si.311in effect; and
that it authorizes a person owning lands to impound less than
500 feet of water on his own property withcut securing a per-
mit therefor from the Board of Water Engineers. 'Thisopinion
makes no reference to the Smedley opinion and the two are in
direct conflict. The Medley opinion being a conference
opinion takes precedence over the Clark opinion and is, in our
opinion, correct.
In addition to answering your questions, we will eliminate
these conflicts.
The proviso contained insection 16 of the 1917 Act reads as
follows:
I, .provided, however, that nothing in this
section or in this Act shall affect or re-
strict the right of any person or persons,
owning lands in this State to construct on
his own property any dam or reservoir which
.
State Board of Water Engineers, page 3 (O-1993)
would impound or contain less than five hun-
dred acre-fcet?of,water."
For a proper understanding of the problem, it is necessary to
quote at length from the 1925 Act:
"S.B. No. 349 Chapter 135 An Act relating to
the appropriation and use of water and pro-
viding that such water mav. in addition to
other-uses, be appropriated and used for pur-
poses of public parks, game preserves, rec-
reation and pleasure resorts, power and water
supply for Industrial purposes and domestic
use; amending Section 16, Chapter 88, Acts of
the Regular Session of the Thirty-fifth Leg-
islature, providing for the filing of pre-
sentations relating to Investigation of the
use of water and the terms and conditions
thereof, that priority of right dates from the
filing of same, that such rights shall ex-
tend for a period of six months and may be
extended by order of the Board of Water
Engineers not to exceed a total period of
three years and the requisites, conditions
and operationof same; providing that the'
fees paid upon the filing of a presentation
may be held'for ~the term thereof or during
the period of any extenslon'thereof and be
handled according to law, and that all rights
under a presentation shall cease at the lend
of the term thereof unless a permit is is-
‘suedin pursuance thereof; . . .providing that
any one may construct on his own property a
dam or reservoir to contain not to exceed
fifty acre-feet of water without securing a
permit therefor; . . .
"Sec. 2. Amend Section 16, Chapter 88, Acts
of the Regular Session of the Thirty-fifth
Legislature, so that same shall hereafter
read as follows:
I,
. . .
“Sec. 5. Any one may construct on his own
property a dam and reservoir to impound or
contain not to exceed two hundred and fifty
State Board of Water Engineers, page 4 (O-1993)
acre feet of water wiLha:.ut
the necessity
of securing a permit therefor.
11 . .
"Sec. 7. All laws in conflict with the
provisions hereof are hereby repealed."
(Underscoring ours).
The first Stone opinion and the first Clark Opinion are in
accord in holding Section 5 of the 1925 Act (Article 75OOa,
V.A.C.S.) to be in contravention of Article 3, Section 35
of the Texas Constitution, and void, because the caption,
which provides for fifty acre-feet and the body of the bill,
for two hundred and fifty acre-feet are in irreconcilable
conflict. We adopt the first Stone and first Clark opinions
to this extent and your first question is answered in the
negative. Ft. Worth and D. C. Ry. Co. v. Loyd, 63 Civ. App.
47, 132 S.W. 899 (error refused ; Sutherland v. Board of
Trustees (Civ. App.) 261 S.W. 4B9 (error refused); Ward
v. State, 102 Crim. Rep. 204, 277 S.W. 672; 39 Tex. Jur.
100. The reasons for this holding are more fully set out
under our discussion of your second question, as the pre-
liminary problems arising out of both are very similar.
The caption of the 192.5Act expresses a general purpose, as
Indicated by the underscoring; It names Section 16 of the
1917 Act as one of those amended, an? sets out the subject
matter of the amendment in detai:l. 'Thecapt,iondoes not
state that Section 16 is expressly repeal&; whether it
was so intended must be determined befcre yc:ur second ques-
tion ‘canbe correctly answered. Section 5, yroFerly con-
strued, covers the same subject matter as th;+proviso oft
Section 16. Apparently, t,heLegisle"ure intended that Sec-
5 should take the place of the proviso I and tha,ti,tshould
repeal that much of Section 16, WJ vi.rtueof Sect?-on7, the
repealing clause of the 1925 Act.
Section 5 being void, it cannot,have the effect of repealing
the proviso. It is a nullity and has no more effect than
if it had never been passed. Consolidated Underwriters v.
;it;by4vTber Co. (Corn.App.) 267 S.W. 703, (revising 250
Culberson v. Ashford, 118 Tex. 491, 18 S.W. (2d)
565; 39 $ex. Jur. 128. Lewis" Sutherland Statutory Con-
struction, Sec. 245; barshall v. State, 62 Crim. Rep. 177,
138 S.W. 759. Therefore, the second Stone opinion, holding
that Section 5 repealed the proviso is in error and is here-
by overruled.
State Board of Water Engineers, page 5 (O-1993)
From their opinions, it appears that neither Mr. Stone nor
Mr. Clark considered the question of whether or not Section
2 of the 1925 Act, which set out at length the amended Sec-
tion 16, repealed Section 16 as written in the 1917 Act.
This is the most difficult of all the questions involved,
for the case of State v. Andrews, 20 Tex. 128 squarely holds
that "an amendment operates to repeal any provision of the
original act or section that is omitted." 39 Tex. Jur. 128.
The act considered in the Andrews case amended a former act
by providing that its first section "shall hereafter read as
follows," which is the identical wording of Section 2 of the
1925 Act, Section 2, in amending Section 16, likewise made
an omission, the proviso.
However, in our opinion, the proviso was not repealed by
Section 2 of the 1925 Act, first, because the rule of the
Andrews case seems to have been restricted by the later
cases, and second, if such was the intention of the Legis-
lature in enacting the 1925 Act, the caption is misleading
in that, although it particularly sets out the contents of
Section 16 as amended, it fails to give notice that the pro-
viso is omitted or repealed; and further, it fails to point
out that Section 2, purports to replace Section 16 and re-
peal the omitted portions. In fact, a contrary purpose was
expressed in the caption namely, not to abolish the right
to'construct a dam on private property, without submitting
plans to the State Board of Water Engineers, but to reduce
from 500 to 50 acre-feet, the impounding capacity of the
dam which could be so constructed.
The caption of the Act considered in the Andrews case merely
contdined references to the acts and sections amended; the
distinction is that it did not go farther and set out with
particularity, the contents of the amended section, as does
the caption of the 1925 Act. In this regard, we quote and
adopt the following pertinent language from the case of
Rodgers v. Tobias, (Civ. App;) 225 S.W. 804 (error refused),
similar on its facts, which held the Act there in question
violative of Article 3, Section 35 of the Constitution, for
the want of an adequate caption:
"It cannot therefore be given the effect of a
mere simple reference in a general way, but would
be interpreted by the rule that 'the mention of
one thing is the exclusion of another'. . .The
title here having gone beyond a simple reference
to the prior law, in that it specifies the parti-
State Board of Water Engineers, page 6 {O-1993)
cular field the amendmert is to cover, will nat
be held ts furniE,Ltkiep'r,:per
l?glslat:l.ve
>re-
lude to an act dealing with a wl-allydifferent
subject. . ."
To the same effect, see Holman v. Pabsf, 27 S.W. (2d) 340
(error refused); Ward Cattle and Pastare Co. v. Carp;tnter,
log Tex. 103, 200 S.W. 521, affirming 168 S.W. 408; Adams
v. San Angelo Waterworks Co., 86 Tex. 485, 25 S.W. 605;
39 Tex. Jur. 103.
The 1917 Act, Article 7466, V,A.C.S. declare-lcertain.pub-
lic rights and duties with respe,:ttz i;heconservation of
the public waters and proceeded tc regulate their use. The
proviso of Section 16 of t5e Ac% reserved to the landowners
a certain right or privilege. If by the 1925 Act, the Legis-
lature intended 'coabolish this right or privilege, it should
have said so in clear language, giving reasonable notice in
the caption. In our opinion, it did not do this; it,did
not comply with the requirements of Article 3, Section 35
of the Constitution.
The effect of an omission, similar to t:hsene here, wa.scon-
sidered in the case of Chapman v. Morrison et a?., 278 S.W.
236 and we adopt Juc7-ge
Fly's language .wit;h
reference to the
caption:
'No reference is made to chang:lngt&r a.rtlcle
so as t;odestroy an importart;privilege of the
citizen enjoyed by him ever sive -thestate came
into existence. T.f it w-s ::he +r,,tsnt:icn
t.3des-
troy that,privilege, then t:he f"ctiPe 1,s.:lea,rly
‘unconstitutional,in that ti:etit1.e3,cesnet
state that Me air? wa.spa.sse'-i-c"e5t'rc.y
tJ-1+$
right. . .'
Judge Fly's opini_onwas cite-lan'.P~:llrwe;!
.in the cases of
Globe Indemnity Cc. v. Barnes, 280 S-W, 275, affirmed 288
S.W. 121; Tasbut:tc;nv. M'brig, 282 S.W, 891 and Rumble Oil
and Ref. Co. v. Anirews, iciv. App.11279 S.W. 300, all of
which involved the same statute. Also, see Lone Star Cas
Co. v. Birdwell, (Civ. App.) 74 S.W. (2d) 294; Holman v.
Pabst, supra; 39 Tex. Jur. 104.
Section 2 of the 1925 Act provi-lesthat;Section 15 "shall
hereafter read as follows" and omits t,heproviso. How-
ever, the caption did net state that Section 16 should
"hereafter read" as set out in the Act. They are in con-
State Hoard of Water Engineers, page 7 (@-1993)
flict to this extent,. If the caption had merely st,a+edthat
Section 16 of the 1925 Act was amended, we would feel bound
to hold the caption sufficient and the words "hereafter read,"
contained in the Act, sufficient to effect a repeal of the
proviso. State v. Andrews, supra. But, such is not the case,
as heretofore pointed out.
Summarizing our holding, you are respectfully advised:
1. That Article 7500a, V.A.C.S., Section 5,
Ch. 136, General Laws of 1925, 39t.h Legisla-
ture is unconstitutional and that the letter
opinions of the Attorney General so holding,
dated July 18, 1925 and May 20, 1927, written
by C. L. Stone and Allen Clark respectively,
are hereby adopted;
2. That the proviso attache3 to Section 16,
Ch. 88, Gen.eralLaws of 1917, 35th Legisla-
ture, and which is to be found in the His-
torical Note to 7496, V.A.C.S. was not re-
pealed by Section 2, Secticn 5, or Section 7,
Ch. 136, General Laws of 1925, 39th Legis-
lature and that same is now in full force and
effect; and, that the letter opinion of the
Attorney General, so holding, dated May 20,
1927, is hereby adopted;
3. That the letter opinion of the Attorney
General written b,yC. L. Stone and dated
July 31, 1925, is expressly overruled and
withdrawn; and
4. That the conference opinion of this de-
partment dated August 25, i917, written by
Hon. G. B. Smedley, constru?n$ the proviso
contained in Section 16 is hereby adopted,
and the letter opinion of the Attorney Gen-
eral dated August 27, 1927, written by Al-
len Clark, which is in conflict with the
Smedleyopinion is hereby overruled and with-
drawn.
Yours very truly,
JN:eaw ATTORNM GENERAL OF TEXAS
APPROVED MAY 8, 1940 By James Noel
Assistant
ATTORNEY GENERAL OF TEXAS