Williams v. State

• Citation: 176 S.W.2d 177
• Decision Date: 08 December 1943
• Docket Number: No. 22550.,22550.
• Parties: WILLIAMS v. STATE.
• Court: Court of Appeals of Texas. Court of Criminal Appeals of Texas

176 S.W.2d 177

WILLIAMS v. STATE.

No. 22550.

Court of Criminal Appeals of Texas.

December 8, 1943.

COPYRIGHT MATERIAL OMITTED

Commissioners' Decision.

Appeal from Hidalgo County Court; J. C. Looney, Judge.

Ray Williams was convicted of a violation of the Pink Bollworm Act, and he appeals.

Reversed, and prosecution ordered dismissed.

Sawnie B. Smith, of Edinburg, for appellant.

Spurgeon E. Bell, State's Atty., of Austin, for the State.

DAVIDSON, Judge.

This prosecution arose under, and appellant was convicted of, a violation of what is known and will be hereinafter referred to as the Pink Bollworm Act, the same being Chapter 3, Title 4, Revised Civil Statutes of Texas, 1925, as amended by Chapter 42, Acts of the Regular Session of the 41st Legislature, 1929, and appearing as Arts. 68 to 82, both inclusive, of Vernon's Annotated Revised Civil Statutes, and Article 1034, Penal Code.

The effect of the charge against appellant was that, during the year 1942, he was in the possession and control of twenty acres of land in Hidalgo County, upon which he cultivated and grew cotton and cottonstalks; that the land was situated within the confines of a pink bollworm regulated zone which had theretofore been, by the proclamation of the Governor of this State, designated for pink bollworm eradication and control, the enforcement of which proclamation had been provided by the quarantine proclamation and order of the Commissioner of Agriculture of this State; that the proclamations and orders mentioned required, among other things, that all growing cottonstalks in the regulated zone be destroyed, by plowing or other approved method, not later than October 1st of each year; that appellant knowingly permitted growing cottonstalks to remain upon his land after the 1st day of October, 1942, in violation of and contrary to the provisions of the proclamation of the Governor and the orders of the Commissioner of Agriculture, without having a permit from the Commissioner of Agriculture of this State to have the growing cottonstalks on the land after the date alleged.

The gist of the offense thus charged against appellant is his failure to comply with an order promulgated by the Commissioner of Agriculture of this State, and for which he was convicted and his punishment assessed at a fine of $50.

The provisions of the Act under which this prosecution was brought and conviction obtained are assailed as being invalid and in violation of constitutional provisions. The attack thereon may be summarized as follows:

(a) The Act is an unwarranted delegation of power by the Legislature of this State and is prohibited by Article II, Section 1, of the Constitution of this State, Vernon's Ann.St (b) The Act is violative of the due process clauses of our State and Federal Constitutions (Art. I, Sec. 19, Constitution of Texas, and 14th Amendment to the Constitution of the United States) and is contrary to the provisions of Article 3 of the Penal Code of this State.

(c) The Act places in the hands of the Commissioner of Agriculture of this State the power to suspend laws, contrary to the provisions of Art. I, Sec. 28, Constitution of Texas.

The term "cotton," as defined in the Act, includes cottonstalks; and, where that term is employed here, it should be construed as including cottonstalks.

Although features of the Act have heretofore been before the courts of this State for construction (Kilpatrick v. Compensation Claim Board, Tex.Civ.App., 259 S.W. 164, where the legislative history of the Act is set forth), the feature of the Act here under consideration is a matter of first impression in this State.

In so far as the questions now before us for consideration are concerned, the practical and working effect of the Act is that the Legislature, for the purpose of eradicating the pink bollworm—which it found to be a public nuisance and menace to the cotton industry of this State, the eradication of which constituted a public necessity —created an administrative board, known as the Pink Bollworm Commission, hereinafter referred to as the Commission.

This Commission was authorized and empowered, after notice and hearing to establish zones or areas in this state within which the growing of cotton would be prohibited altogether, or would be limited. The Commission, upon completion of the hearing, made its recommendation to the Governor of this State. In the event such recommendation was that cotton might be grown in certain areas to be known as regulated zones, under rules and regulations deemed adequate to prevent the spread of the pink bollworm, it became the mandatory duty of the Governor of this State to issue his proclamation proclaiming the area designated to be a regulated zone. In this connection, note is taken of the fact that, upon the issuance of the proclamation, it was thereafter unlawful "to grow cotton within such area as may be recommended by the Pink Bollworm Commission, except under such rules and regulations as the Commissioner of Agriculture shall promulgate" (Art. 71, R.C.S.);¹ and, also, in which regulated zone, it was thereafter unlawful "to plant, cultivate and market cotton except under such rules and regulations as shall be promulgated therefor by the Commissioner of Agriculture, * * *" (Art. 74, R.C.S.).²

The Commissioner of Agriculture played an important part in the proceedings, especially in relation to the hearing and report of the Commission. His relation thereto was in the nature of investigator and prosecutor in that he made a preliminary survey of the areas which might be infected, or in danger of infection, with pink bollworm. The owners of the land in the areas under investigation were contacted, after which the Commissioner made his report to the Governor, who ordered the convening of the Commission for a hearing thereon. At the hearing, the Commissioner of Agriculture presented his findings to the Commission.

Art. 1034, P.C., undertook to make the violation of any proclamation, rule, or regulation promulgated by, or authorized to be issued under, the Act a crime punishable by a fine.

The Act proper, that is, outside of the penalty provisions of Art. 1034, P.C., does not make the violation of the rules and regulations promulgated by the Commissioner of Agriculture a violation of law.

The unlawful act created by the Legislature is the growing of cotton in either a prohibited or a regulated zone. As to the first, there is no defense provided in the Act. As to the other, it is a defense if the cotton was grown in accordance with rules and regulations prescribed by the Commissioner of Agriculture.

A determination of the questions here presented for review, as well as of the validity of the Act, requires that the distinction pointed out—that is, the act made unlawful —be kept in mind, as we conceive such to be the offense denominated by the Act, and controlling here.

Every State possesses an attribute of sovereignty, not granted or derived by or under any written constitution, known as its police power, by which the lawmaking bodies of each State pass laws to protect the peace, health, happiness, and general welfare of society, and of the people as a whole. The validity of legislation passed as an exercise of police power depends in a large measure only upon whether the regulation is reasonable or arbitrary and is really designed to accomplish a purpose properly falling within the scope of police power. Ex parte Smythe, 116 Tex.Cr.R. 146, 28 S.W.2d 161; 11 Am. Jur. 1073, and authorities there listed.

It follows that legislation which is necessary or appropriate to protect the general welfare of the people, and that is reasonable in its operation and effect, is a valid exercise by the Legislature of its police power.

Testing the validity of the Act and the part thereof before us, in the light of these rules, we find:

It is a matter of common knowledge, and we therefore judicially know: That, at the time of the passage of the Act, Texas was, and is now, the largest cotton-producing State of the American Union; that only a small percentage of the cotton produced was consumed within this State; that cotton was our chief source of income; that the cotton industry, as a whole, was so related to the economic welfare—not only of the State but of the people generally— that its destruction would have been a major calamity, reducing the State to an economic chaos.

The preservation and protection of that industry from destruction or serious injury was a subject properly within the police power of the Legislature of this State. The Legislature was therefore empowered to pass all such reasonable legislation to protect the industry.

Being a subject, then, within the scope of police power, the question arising is whether the Act so passed violated the provisions of the Constitution mentioned, prohibiting a delegation of legislative power to make laws. This question arises primarily as a result of, and out of, the powers conferred upon the Pink Bollworm Commission, the Governor, and the Commissioner of Agriculture, and especially in so far as same creates a crime or makes an offense against the penal law of this state.

Article II, Section 1, of our State Constitution precludes one branch of our government from delegating to another the power and authority conferred upon it by the Constitution.

The question of this delegation of authority has been much before the courts, and especially is that true in recent years by the enlarged powers conferred upon administrative boards and tribunals. The generally accepted rule governing such matters now appears to be that a legislative body may, after declaring a policy and fixing a primary standard, confer upon executive or administrative officers the power to fill up the details, by prescribing rules and regulations to promote the purpose and spirit of the legislation and to carry it into effect. In such cases the action of the Legislature in giving such rules...