Burgess v. American Rio Grande Land & Irrigation Co.

• Decision Date: 20 April 1927
• Docket Number: (No. 7766.)
• Citation: 295 S.W. 649
• Parties: BURGESS et al. v. AMERICAN RIO GRANDE LAND & IRRIGATION CO.
• Court: Texas Court of Appeals

295 S.W. 649

BURGESS et al. v. AMERICAN RIO GRANDE LAND & IRRIGATION CO.

(No. 7766.)

Court of Civil Appeals of Texas. San Antonio.

April 20, 1927.

Rehearing Denied May 18, 1927.

Appeal from District Court, Hidalgo County; J. E. Leslie, Judge.

Suit by A. Burgess and others against the American Rio Grande Land & Irrigation Company. From a judgment of dismissal, plaintiffs appeal. Reversed and rendered.

Gause & Kirkpatrick, of Mercedes, for appellants.

D. W. Glasscock, of Mercedes, for appellee.

The Attorney General, amicus curiæ, for the State and board of water engineers.

FLY, C. J.

A. Burgess, M. J. Clark, and Joe Hess, appellants herein, instituted this action against appellee to obtain a writ of injunction restraining it from the enforcement and collection of increased water rates arbitrarily fixed by it, and to restrain the collection of any water rates in excess of those fixed by the state board of water engineers and from refusing water for irrigation purposes to appellants. Appellee assailed the petition on ground of want of jurisdiction in the court and pleaded in abatement of the suit the unconstitutionality of the act creating the board of water engineers. The court, by agreement, heard the case on the plea in abatement and denied the injunction and dismissed the cause on the ground that articles 7560, 7561, 7562, 7563, 7564, 7565, 7566, 7567, and 7568 of Revised Civil Statutes of 1925, enacted by the Thirty-Fifth Legislature, are unconstitutional under the provisions of section 1, article 2, section 1, article 3, and section 1, article 5, Constitution of the state of Texas, and the Fifth Amendment to the Constitution of the United States of America. The grounds stated in the judgment for such unconstitutionality are:

"In that it appears that said board of water engineers, and the members thereof, are of and belong to the executive department of the government of the state of Texas, and said statutes constitute and attempt to devolve upon said board and its members powers properly attached and belonging to the legislative and/or judicial departments of the government of the state of Texas; and including particularly the power to fix rates for the furnishing of water for irrigation purposes by corporations organized for irrigation purposes, which power is attached and belongs exclusively to such legislative department; and also including the power to hear, consider, and determine complaints and controversies, to hear evidence thereon, and to render decision in writing thereon, and to make and enter binding and enforceable orders and decrees, etc., all whereof are attached and belong exclusively to said judicial department; and, further, in that the application and enforcement of said statutes, as herein sought by plaintiffs, would deprive the defendants herein of their property, privileges and/or immunities contrary to the due course of the law of the land, and of their property without due process of law."

Section 1 of article 2 of the Constitution divides the powers of the state government into three departments (legislative, judicial, and executive), and provides that "no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted." Section 1 of article 3 provides for the legislative power being exercised by a Senate and House of Representatives. Section 1 of article 5 names the different courts of the state. Section 19 of article 1 is the due process provision, as is Amendment 5 to the federal Constitution. The foregoing are the provisions of the two Constitutions held by the trial judge to have been infringed by the passage of laws creating the board of water engineers, as contained in articles 7560 to 7568, inclusive, of the Revised Civil Statutes of 1925. The articles in question are assailed on the ground that they endeavor to clothe an executive board with legislative and judicial powers.

The statutes unconstitutional as stated in the plea in abatement are those stated in the judgment hereinbefore copied.

At times, in the proper exercise of its judicial duties, it becomes necessary for a court to pass upon the constitutionality of statutes, because the judiciary are sworn to execute the laws of the land, and no statute passed by a legislative body can become a law of the land unless passed by the authority and in consonance with constitutional requirements. Constitutions are the expression of the sovereign will of the people, and every law must be based thereon, or at least not antagonistic thereto. As said by Judge Cooley:

"It must be evident to any one that the power to declare a legislative enactment void is one which the judge, conscious of the fallibility of the human judgment, will shrink from exercising in any case where he can conscientiously and with due regard to duty and official oath decline the responsibility. The legislative and judicial are co-ordinate departments of the government, of equal dignity; each is alike supreme in the exercise of its proper functions, and cannot directly or indirectly, while acting within the limits of its authority, be subjected to the control or supervision of the other, without an unwarrantable assumption by that other of power which, by the Constitution, is not conferred upon it." Cooley, Const. Lim. p. 227.

No statute should be declared void because of its apparent injustice or its want of public policy, nor yet because it may be thought a statute violates fundamental principles of government. "The judiciary can only arrest the execution of a statute when it conflicts with the Constitution." Cooley, Const. Lim. p. 236.

No statute should be declared void if there be a reasonable doubt in the judicial mind of its invalidity, and the rule has been laid down, which we believe to be sound, that acts passed by Congress and Legislatures must be viewed from a different standpoint because Congress, under the Constitution of the United States, has its powers enumerated, but Legislatures are clothed with all general powers of legislation. As said in Sill v. Village of Corning, 15 N. Y. 297:

"The state, as to subjects of a domestic nature, is a sovereign political power, and the Legislature can provide such agencies for the administration of the law and the maintenance of public order as it shall judge suitable, where no prohibition, expressly made or necessarily implied, is found in the Constitution."

The Legislature cannot delegate its power to make laws, nor can it clothe any other agency of government with judicial power except courts. That fundamental rule, however, must have some apparent, though not real, exceptions. The customs of the ages have given the Legislature the power to create agencies to carry out the legislative intent and administer details in matters conducing to the prosperity and usefulness which could not be administered, for obvious reasons, by the Legislature. To such agencies the Legislature does not delegate the power held by it alone to enact laws, but clothes them with the powers of administration of laws created by the Legislature. The act does not seek to give legislative powers to the board of water engineers, but merely created the board and defined its functions and duties. The board has no powers except those specially given by the statute and those powers are clearly administrative or ministerial. As said by this court, through Associate Justice Neill, in Gulf, C. & S. F. Railway v. State, 56 Tex. Civ. App. 353, 120 S. W. 1028, a case attacking the State Railroad Commission along the same lines followed in this suit in connection with the water board:

"It is, however, sometimes difficult to clearly define the line between a delegation of legislative power and a grant of authority to perform acts which are in their nature quasi legislative, but not strictly so. The constitutional inhibition which prevents the delegation of legislative power does not prevent the grant of authority to make rules and regulations for the government of a particular subject."

There can be no doubt that the Legislature would have the right to fix rates and perform all the other labor committed by it to the water board, and undoubtedly it could create an agency to put into execution certain matters commanded by it. If a Legislature has no power to create an agency to ascertain the amount of water to be furnished those entitled to it, and to fix reasonable rates for the same, then the whole irrigation system of the state falls to the ground, and the thousands of acres of rich lands in the semiarid portions will revert to their primitive state of unproductiveness, and many thousands of our people deprived of a means of livelihood. It would be an impossibility for the Legislature, except through an agency, to perform the duties placed by it on the water board. No question is more firmly settled than the power of the Legislature to create a Railroad Commission and invest it with greater powers than have ever been dreamed of in connection with a water board. That would be true in the absence of the constitutional provision authorizing the Legislature to provide agencies executing its power to regulate freight and passenger tariffs, correct abuses, and prevent discrimination and extortion. Any one acquainted with the history of Texas when the question of regulating freight and passenger tariffs was under discussion will remember the bitter opposition to such power being exercised by the state, and one of the greatest political battles ever fought in Texas...