Johnson v. Martin

• Citation: 12 S.W. 321
• Parties: JOHNSON <I>v.</I> MARTIN <I>et al.</I>
• Decision Date: 05 November 1889
• Court: Supreme Court of Texas

12 S.W. 321

JOHNSONv.

MARTIN et al.

Supreme Court of Texas.

November 5, 1889.

Commissioners' decision. Appeal from district court, Lamar county; D. H. SCOTT, Judge.

Hale & Hale and R. Wooldridge, for appellant. Burdett & Connor and J. M. Long, for appellees.

COLLARD, J.

On the 6th day of November, 1886, appellant brought suit against appellees for $130,000 damages. Plaintiff's petition alleges that on the 4th day of November, 1884, he was duly elected public weigher for Lamar county, and that he qualified as such, and entered upon the duties of the office in the city of Paris; that defendants were then, and now are, partners engaged in buying cotton; that during the latter part of the year 1885, and the first part of the year 1886, the defendants unlawfully, and without instructions or consent from the owners thereof, employed one P. M. Speairs and one A. B. Long to weigh bales of cotton in the city of Paris, and that said employes, under such employment, did weigh 18,000 bales of cotton in said city, brought to said city by the owners thereof for sale, and by them offered for sale; and that said cotton was not the property of said Martin, Wise & Fitzhugh, or either of them, or of the said Speairs, or the said Long, — to plaintiff's damage $90,000. Plaintiff also alleged that during the latter part of the year 1886 the defendants so unlawfully employed the said P. M. Speairs to weigh cotton in said city of Paris, and that he did weigh 8,000 bales, which were brought by the owners to said city, and offered for sale; that neither of the defendants nor the said P. M. Speairs was a public weigher, or the deputy of a public weigher, — to plaintiff's damage $40,000; making a total damage to plaintiff of $130,000. On the 8th day of April, 1887, defendants answered First, general demurrer; second, two special exceptions, — the first of which is because there is no such office as a public (cotton) weigher in Lamar county, Tex., created by law, under the constitution and laws of Texas, and because the legislature could not delegate the power of creating said office to the commissioners' court of Lamar county; (2) because the statutes of 1879, approved April 19, 1879, and of 1883, approved April 12, 1883, are unconstitutional, and in conflict with sections 35, 36, and 56 of article 3 of the constitution. Upon hearing the demurrer and special exceptions, the court sustained them upon the ground that section 1 of the act of 1883 was unconstitutional and void, "in so far as it attempts to confer upon the commissioners' court the authority to create the office of public weigher, either by appointment, or ordering an election therefor;" so the court gave final judgment for the defendants upon the demurrer and exceptions. Upon this ruling of the court, the plaintiff appealed, and assigned errors.

Section 1 of the act of 1883, amendatory of the act of 1879, reads as follows: "The governor is hereby authorized and required to appoint five competent persons as public weighers in every city which receives annually over one hundred thousand bales of cotton on sale, or for shipment. In all cities or towns or railroad stations which receive annually less than one hundred thousand bales of cotton, the county commissioners' courts of the counties in which said cities or towns or railroad stations are situated, should the commissioners' court deem the same necessary to protect the sellers, may order an election at which all the qualified voters of the county may vote for one or more public weighers: provided, that the county commissioners' court may provide by appointment for cotton weighers to hold office until the next general election, and until their successors are qualified: provided that, if any election is held under the provisions of this act before the next general election, the terms of office of those elected shall expire at the next general election, or so soon thereafter as their successors are elected and qualified: provided, that in towns and railroad stations outside of county-seats the county commissioners' court may appoint one or more public weighers: provided, nothing herein contained shall be construed so as to prevent any other person from weighing cotton wool, or hides when requested to do so by the owner or owners thereof. All public weighers shall hold their offices for two years, and until their successors are appointed or elected, as the case may be, and qualified, subject to removal," etc. Section 2 of the act requires weighers so appointed to qualify and give bond. Gen. Laws 1883, pp. 83, 84. Section 1 of the act of 1879 required the governor to appoint public weighers in certain cities named, "and at such other incorporated cities or towns as in the judgment of the governor may be expedient, who shall hold his office two years, and until his successor is appointed and qualified," etc.

It is not unusual to provide for an office by a requirement that there shall be an election by the qualified voters for the officer. The offices of county attorney and sheriff are so created by our constitution. Const. art. 5, §§ 21, 23. This, however, is not the question before us. It is not contended by the appellee, in support of the judgment below, that the law would have been unconstitutional if it had been mandatory, that is, if it had commanded the commissioners' court to order the election; but that the law is unconstitutional because it left the expediency of ordering the election to the discretion of the commissioners' court, thereby delegating to them the legislative power. The position of the appellees is untenable. The law as it stands was enacted by the legislature in accordance with constitutional forms, and, as a law, was complete by the legislative enactment. The commissioners' court have no power to revise or modify the act in any respect. They merely have the right to put the law in force by having an election; to organize, by calling an election for the officer, who is to execute the law as it came from the hands of the legislature. It might be said that the law is to take effect upon the happening of a subsequent event; that is, the decision of the commissioners' courts that it is necessary in their respective counties. Such discretion to the counsel boards of subordinate branches or divisions of the government is not unusual, and is not unconstitutional. It is allowed to them because, in matters of local regulation, it may be fairly supposed "they are more competent to judge of their needs than a central authority." The legislature cannot merely propose a law to be adopted by the people; but, where there is affirmative legislation, its enforcement in counties, districts, or towns, when the law so provides, may be left to the option of such localities. It might not be allowed to submit a general law to the people of the state at large to all the electors. This has been held to be in violation of the constitution, which gives to the legislature the exclusive right to make such laws. See Cooley, Const. Lim. 145-147. But even this was held to be legitimate in some cases. Smith v. City, 26 Wis. 291, and cases there cited. The privilege of the electors of a district to be affected by a law to say whether they will accept its provisions, the law giving them the right to accept or reject, is now generally permitted, and regarded as constitutional. People v. Stout, 23 Barb. 349; Dome v. Wilcox, 45 Mo. 458; Bank v. Brown, 26 N. Y. 470; Ex parte Wall, 48 Cal. 279; San Antonio v. Jones, 28 Tex. 32...