White v. Maverick County Water C. & Imp. Dist. No. 1

• Decision Date: 04 February 1931
• Docket Number: No. 1214-5669.,1214-5669.
• Citation: 35 S.W.2d 107
• Parties: WHITE et al. v. MAVERICK COUNTY WATER CONTROL AND IMPROVEMENT DIST. NO. 1.
• Court: Texas Supreme Court

35 S.W.2d 107

WHITE et al. v. MAVERICK COUNTY WATER CONTROL AND IMPROVEMENT DIST. NO. 1.

No. 1214-5669.

Commission of Appeals of Texas, Section B.

February 4, 1931.

Error to Court of Civil Appeals of Fourth Supreme Judicial District.

Suit by J. E. White and others against the Maverick County Water Control and Improvement District No. 1. Judgment for defendant was affirmed by the Court of Civil Appeals [26 S.W.(2d) 659], and plaintiffs bring error.

Reversed and rendered.

Black & Graves, of Austin, Jones & Lyles and John J. Foster, all of Del Rio, and J. B. Lewright, of San Antonio, for plaintiffs in error.

Ben V. King, of Eagle Pass, and Terrell, Davis, McMillan & Hall and E. W. Clemens, all of San Antonio, for defendant in error.

LEDDY, J.

This case is one in which plaintiffs in error sought to enjoin certain condemnation proceedings commenced by the defendant in error, and its board of commissioners of appraisement, and the taking possession of their lands thereunder, it being alleged that the proceedings by which such lands were sought to be condemned were void because the statute (section 14, Chap. 280, Laws of the 41st Leg., p. 578 [Vernon's Ann. Civ. St. art. 7880— 132]) by which they were authorized was unconstitutional. The injunction prayed for was denied by the district court. An appeal was duly prosecuted to the Court of Civil Appeals, which affirmed the judgment of the trial court. 26 S.W.(2d) 659.

It was held by the Court of Civil Appeals that the district court was without jurisdiction to grant the injunction prayed for; that plaintiffs in error's sole remedy was to prosecute the appeal authorized by the statute assailed by them as void. For the reason given, that court declined to pass on the question as to whether the statute was unconstitutional.

Section 14 of said act, which prescribes the method of condemning land by irrigation districts, is challenged as being unconstitutional upon numerous grounds. As we have reached the conclusion that the provision for condemnation of lands contained in the section assailed is violative of article 2, section 1, of the Constitution of this state, which prohibits the conferring of judicial power upon executive officers of the government, it is unnecessary that we enter into a discussion of the remaining constitutional objections urged to this portion of the act.

Section 14 of said act contains elaborate provision for the condemnation of land and the assessment of benefits. Briefly stated, the procedure outlined for irrigation districts operating under said act is substantially as follows:

The board of directors of the district, each of whom are required to own lands therein, are directed to appoint a "board of commissioners of appraisement." This board is directed to organize by electing a chairman, vice chairman, and secretary. When land is sought to be condemned by the district, it is provided that such board view the land, and, after an investigation, that it make and file with the board of directors of the district a written report, setting forth the value of the land to be taken by the district in fee simple; the amount of the assessed compensation on any easement taken by the district. Upon this report being filed with the board of directors, the landowner is duly notified and the matter is set down for hearing, at which time he is permitted to offer such evidence as he may see fit to present, and, after a full hearing, the board may change or modify its decree. If the landowner does not respond to the notice, the decree rendered by the board of commissioners becomes final, and, without being entered as the judgment of the county court, operates to divest the owner of title to land sought to be condemned, and vests the same in the irrigation district.

If either party is dissatisfied with the award made after a hearing, an appeal is provided to the county court, and referees are appointed by that court who make a report without hearing any evidence, except they may call to their assistance the district's engineer. If exceptions are filed to the report of the referees by the landowner after he is given notice of the report, the matter is tried in the county court without a jury.

It is also provided that no appeal from the award of the board of appraisers shall prevent the condemnor from taking possession of the land involved if compliance with the provisions of the act for payment of compensation is made.

Unlike the general condemnation statute, the report of the board of commissioners of appraisement, in the absence of objection thereto, is not entered as the judgment of the county court. Under the provisions of the act the decree of the commissioners of appraisement of itself operates to divest the landowner of title to his property, and vests the same in the condemnor. That strictly judicial power is conferred upon this board is too plain to admit of any serious controversy. It is not an instance where the Legislature has sought by statute to vest executive officers with powers of a quasi judicial nature involving the exercise of judgment and discretion as a necessary incident to the discharge of their necessary functions, but is one where strictly judicial power is attempted to be given, enabling the persons upon whom it is conferred by solemn decree to divest a citizen of title to his property. It is frankly conceded by defendants in error that the conferring of such power can only be justified upon the theory that the Legislature intended by this enactment to create the board of commissioners of appraisement as a court, and contemplated that it function as such.

A careful review of the provisions of the act leads us to the conclusion that the Legislature in providing for this board of commissioners of appraisement contemplated the creation of an administrative board rather than that of a court. One of the best methods to ascertain the legislative intent in this respect is to determine whether the system under which the board of appraisement is to function is similar in nature to that usually provided when the Legislature creates a court.

The procedure provided for the board of commissioners of appraisement is radically different from that contained in any act by which the Legislature has created a court within the history of our state. This board of appraisers is vested with jurisdiction limited to the class of cases specified in the act. The Legislature clothed one of the litigants in this particular class of cases with the power to appoint the members of the board. That the board of directors of the district, each of whom must be a landowner therein, and therefore directly and financially interested in the result of condemnation proceedings in its behalf, is given the power to name the judges who shall adjudicate the rights of the parties, is contrary to the fundamental and basic principle that courts are and should be created as fair and impartial tribunals.

Again, all enactments heretofore made by the Legislature in creating courts allow parties having litigation therein the right of an original hearing before a decision is rendered, while, under the provisions of this law, the so-called court is required to make its own investigation in any manner it may see fit and reach a decision as to the amount of compensation which...