Texas Antiquities Committee v. Dallas County Community College Dist.

• Decision Date: 13 July 1977
• Docket Number: No. B-6107,B-6107
• Citation: 18 A.L.R.4th 973,554 S.W.2d 924
• Parties: TEXAS ANTIQUITIES COMMITTEE et al., Appellants, v. DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, Appellee.
• Court: Texas Supreme Court

Page 924

554 S.W.2d 924

18 A.L.R.4th 973

TEXAS ANTIQUITIES COMMITTEE et al., Appellants, v. DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, Appellee.

No. B-6107.

Supreme Court of Texas.

July 13, 1977.

Rehearing Denied July 27, 1977.

John Hill, Atty. Gen., Austen H. Furse, Asst. Atty. Gen., Austin, for appellant.

Strasburger, Price, Kelton, Martin & Unis, Patrick F. McGowan, H.P. Kucera, Dallas, Clark, Thomas, Winters & Shapiro, Barry K. Bishop and Mary Joe Carroll, Austin, for appellee.

POPE, Justice.

Dallas County Community College District filed this suit for injunction against the Texas Antiquities Committee and its members to set aside an order of the Committee denying a permit to demolish three buildings owned by the College District. The trial court rendered judgment for the College District, stating that in its judgment section 6 of the Antiquities Code is both unconstitutional and unconstitutionally applied. This court has jurisdiction by direct appeal. Tex.Rev.Civ.Stat.Ann. art. 1738a (1962); Tex.R.Civ.P. 499a.

Dallas County Community College District came into existence in 1965 as authorized by section 130.005 of the Texas Education Code. Its Board of Trustees "constitutes a body corporate" which may "acquire and hold real and personal property, sue and be sued," and has "the exclusive power to manage" the College District's affairs. Tex.Educ.Code Ann. § 23.26. Acting under its legislative authorization, the College District in 1966 purchased land in downtown Dallas on which there were four buildings; the cost of the purchase was 2,150,000 dollars. The City of Dallas permitted temporary limited use of the three older buildings upon assurance that they would be demolished within three to five years. Plans for the demolition of the three older buildings were announced to the public as early as 1969.

The Board of Trustees of the College met in 1972 and voted to restore the one building that was structurally sound and to demolish the three older buildings so the space could be used for new college facilities. The Board met on April 1, 1975, to consider demolition bids, but a group of citizens requested a ten-day delay during which time the group hoped to find funds for rebuilding the three buildings which were set for demolition. The group was unsuccessful in finding any funds, but it reported to the Board that on April 8 the buildings had been placed on the National Register of Historical Buildings. No prior notification was given the College District that an expedited application was being made for inclusion of the buildings in the National Register.

After the College District purchased the land and buildings in 1969 and made its plans for the College's efficient use of the land, the legislature enacted the Antiquities Code. Tex.Rev.Civ.Stat.Ann. art. 6145-9 (1969). The Antiquities Code provided for an Antiquities Committee consisting of seven members. Tex.Rev.Civ.Stat.Ann. art. 6145-9, § 3 (1969). Section 4 of the Code gives the Antiquities Committee the authority "to determine the site of, and to designate, State Archeological Landmarks . . . ." Section 10 proscribes any construction on any State Archeological Landmark without first obtaining a permit from the Antiquities Committee. ¹ Section 10 is the only provision of the Code which in any way entitles the Committee to grant or deny a permit for the demolition of the buildings. The Antiquities Committee has not designated any of the three buildings at issue as State Archeological Landmarks, but the Committee has denied the College District's request to demolish the buildings based upon the buildings' expedited inclusion in the National Register of Historic Sites and Buildings. The Antiquities Code does not give the Antiquities Committee authority over buildings in the National Register; instead, the Code only gives the Committee authority over buildings which the Committee has designated as a State Archeological Landmark. Since the Committee has not designated the buildings as State Archeological Landmarks, the College District does not need the Committee's permission before demolishing the buildings.

The trial court grounded its judgment upon two separately stated and separately numbered adjudications:

1. Section 6, Article 6145-9, V.T.C.S., reading as follows:

Sec. 6. All other sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest, including but expressly not limited to, those pertaining to prehistoric and historical American Indian or aboriginal campsites, dwellings, and habitation sites their artifacts and implements of culture, as well as archeological sites of every character that are located in, on or under the surface of any lands belonging to the State of Texas or by any county, city or political subdivision of the state are hereby declared to be State Archeological Landmarks and are the sole property of the State of Texas and all such sites or items located on private lands within the State of Texas in areas that have been designated as a "State Archeological Landmark" as hereinafter provided, may not be taken, altered, damaged, destroyed, salvaged, or excavated without a permit from, or in violation of the terms of such permit of, the Antiquities Committee.

is unconstitutional and void, and the orders of the Defendants based thereon are unconstitutional and invalid.

2. Plaintiff need not obtain a permit from the Defendants before demolishing the three buildings in question situated on Plaintiff's El Centro Campus in the City of Dallas, Dallas County, Texas, and bounded by Elm, Austin, Main and Lamar Streets in said city; and the application of the Texas Antiquities Act, Article 6145-9, to these buildings is unconstitutional as applied.

We affirm the trial court judgment and will now examine each of its separate adjudications.

UNCONSTITUTIONALLY VAGUE STATUTE

The first basis of the trial court's judgment was that section 6 of the Antiquities Code, stated above, was unconstitutionally vague. There has been no contention that the three buildings in question possess archeological, scientific, or educational interest. The Antiquities Committee only contends that the buildings are of "historical interest." The sole basis for the exercise of the Antiquities Committee's power over the three buildings is found, if it can be found, in these words of the statute:

Sec. 6. All . . . buildings . . . and locations of historical . . . interest.

The Antiquities Committee, although it has the power, by article 6145-9, section 11, has adopted no rules or standards which state criteria for "buildings . . . and locations of historical . . . interest." The Antiquities Committee does not contend that section 6 gives any predictable standard or safeguard. Its position is that the law which strikes down statutes because they are vague, overbroad, and uncertain should be overruled. It argues that the power of the legislature to delegate its powers to state boards and commissions should be unlimited so long as there are experts who constitute the membership of the Committee.

There has been called to our attention no case in Texas or elsewhere in which the powers of a state board are more vaguely expressed or less predictable than those permitted by the phrase in question. The word "buildings" comprehends all structures; "historical" includes all of the past; "interest" ranges broadly from public to private concerns and embraces fads and ephemeral fascinations. All unrestorable structures ordinarily hold some nostalgic tug upon someone and may all qualify as "buildings . . . of historical . . . interest."

Upon the basis of the statute now before us, we are unconvinced that we should renounce the settled law of Texas that the legislature may not delegate its powers without providing some criteria or safeguards. Depending upon the nature of the power, the agency, and the subject matter, varying degrees of specific standards have been required in testing the reasonable breadth of statutes. 1 Sutherland, Statutory Construction, § 4.05 (4th ed. 1975); Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960). Sound reasons support the rule that some reasonable standard is essential to the constitutionality of statutory delegations of powers to state boards and commissions.

Vague laws offend several important values. First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. (Footnote omitted.) Second, if arbitrary or discriminatory enforcement is to be prevented, laws must provide explicit standards to those who apply them. A vague law impermissibly delegates basic policy matters to policemen, judges, and juries for resolution on ad hoc and subjective basis, with the attended dangers of arbitrary and discriminatory applications. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972).

We adhere to the settled principle that statutory delegations of power may not be accomplished by language so broad and vague that persons "of common intelligence must necessarily guess at its meaning and differ as to its application." Connally v. General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). We are not persuaded that we should overrule or disapprove such cases as Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (1942); Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940); Martinez v. Texas State Board of Medical Examiners, 476 S.W.2d 400 (Tex.Civ.App.1972, writ ref'd n.r.e.), appeal dism., 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312; Commission...