L- -

Ron. John E. Taylor

Chief Supervisor Railroad

Ccnmnission

of Texar; Austin,Texas

Dear S&r: OpinionNo. O-1943

_ Re: Power of Railroadkission to delegate

to anotherthe authority to sign one of its orders.

We hrrrre

for aoknowladgment

your letterof February9, 1940, withdrawing

the request

for an opinionaddressed to this officeby your letter of February 6, 1940, and substituting in lieu thereofthe following

request:

"Cnthe 20th day of Deoember, 1939, the Railmad Commission of Texas duly signedand enteredits ESPECIAL ORDER FIXIMGTRElLUllllBLE PRODUCTION

OF.CRUDE

OIIL lI8 THE VARIOUS **FIFiLDS** AND DISTRICTS IR TKM,' which *came effeotivp_-January 1, 1940, md in general allocated

the oil production in the State of Texas for the various fields and Districts in Texas as hereinabove set ,out. (h the 24th day of January, 1940, the Railroad

Conmission

duly signedand entered its -'SPECIAL

ORDER FIXINGTHE AlL0XMI.E PRODUCTION

OF CRUDE OIL XM l'R& VARIOUS FIELIxi

ARD DISTRIS.'%Ili

l%XAS,'

whioh became bffeative

February

1,,194Z,

akd~ingeneralallocated the oil produoti? in the 3tate,of Texas for the various fields and Distriots

in Texas as hereinabove set out.

"The lastmentioned Order has been in effeot since the first day of February, 1940, and is still ti foroe and effect.

"First. In the.event the Railroadkmmission of Texas desirestoesoind its order o,f January24, 1940, fixing the allolable

,produotion

in the various fields of Texas for the month of February, 1940, oan 8mne be legally dome by an order of the Commission

signedby swe person,authorised bymembers of the Commission

to affix their signatures thereto.Han, John E. Taylor,Page 2 (o-1943)

"Second. Should it b&h@@ -&'yoly lkpaetint that the cmty of the Commission can be legally

delegated by the tidiwidual

membersof the Commission to 8ome other personto sign the order hereinabove referred

to, thbn pleaseadvise

whetheror not as a basis for the delegation of such power it will be neoesaary for the Commission

to hold a formal tikaring and vote suoh authority by a majority thereof.

"Third. Should it be held by your Department that the Comnission

has the power to delegate tha authority

hereinabove referred

to, then pleaseadvise whetheror not suoh authority

may be conferred

by the Ccnnmission

by a majority vote of the Conmrission at a called

meeting if such action 'is taken by the Collmission beyondthe territorial limitsof the State of Texas+

"Fourth. Should it be held by your Department that as generalproposition the RailroadCommission can delegate

the authority

here,inabove'teferred to, then pleabeadvisewhether
or not the Commission could so act Pf;'sittiti that the City of Austinwithin the fkate of P i6-a place other exasr* .~ The Tiailroad

Qmmisaion isva publicboard or oommissioaauthorired by the ODnatlt;ut&on ( 1010 16, SsotionSCI), and created

by statuti (Arts. 6444~644'7,'R&%25). Itamember.9 am oloarly State offiaarr to whan are confided not only authority of m~ewou~ive **n&xm,** but also authority

of a quasi-judicial, quasi-lbgislature

oharaotoi,

involving the exercise

of judgment

and disaretion,whioh authority

is to bo exeroisedand performed for and on behalf of the State of TexasThe rule is quit. gensFally reoognizsd

that publiooffioers may not, in the absence of **express** authority, delegate

to anotherthe performance

of an sot involving the exercise

of judment and discretion; but may delegate,

in the absence of express prohibition,

the psrfonnanoe of aots which are purely mechanical

or ministerial

in character. 46 C. J. 1033.

The adoption and raoission

of proration

rules and ordersby the RailroadConanission involve,

in the high*& degree, the exeroiss

of judgment

and ditloretion,

for auoh orders,when lawfklly adopted

and pranulgated

by the Cummission,

have the force and effect of law, prescribing

rules of conduct

which oonoern, **not** only the persons directly affected

by the rule or order, but the wlfare of the State at kg*. The power, therefore, to determina~whether a prorat%onu.,ordsr

shallba reaoinded

cannot be delegated,

but must bs exeroised by the Gnmuission
as auoheFIon, Johz,E..

Taylor,Page 3 (O-1943)

FWthennors, it is not oon+smpIated that the members of the Conmission

shall act in respectto matters involving the exe@.oe of judgment

and disoretion

as individuals,

but as a board. When action -bythe board on a matter involving the exercise

of judgment

and disoretipn

isto be had, it is contemplated that a meeting of its members shall b had, at which meeting at least a quorlrm shallbe present,

in order that the question to ti determined

may be freelydiscussed and - full opportu@i+.y

affordedfor a free exchange of ideasamong the members, that the deoisioa finallyreached

by the Canmission

will reflect the considered

judgment

and opinionof the Cammission as such, and not the several and independently formedvisas of the individual members canposing

the commission.

Rhere a duty or powerinvolving the exercise

of judgment

or discretion

is entrusted

to a bard or commission composed

of differant individuals,

such board o@n act officially in respect

to'~thsdischar-pof that duty only as such, in oonvonsd seasion, with the memlwrs
or a quorum thereofpresent. State ex rel Bariav. Alexander, 130 Sm. 754, 158 Miss. 557; State ex rel Mayerv. Sohuffenhauer, 250 N. W. 767, 213 Fiis.

29; State v. Kelly (New Max.) 202 Pac. 524, 21A.L.R. 156; McClellan,

HunicpalCorporations, Sec. 695; 22 R.C.L. 456; 46 C.J. 1034; 34 Tax. Jur. 457, and Texas oases cited; Mooham,Public Offloors, p. 376.

Moreover,

the board is not at liberty to hold such a meeting for the determination of a questioninvolving the exeroise

of judgment and discretion

at any place of its choosing. On the contrary, &tiole 6447,R.S. 1925, provides that "the ocnnaission may hold i5.s

session

at any plaoewithin this statewhen deemednecessary." By dlear implication, the statutory prevision

denies to the conmission the authority

to hold its meetingsor sessions at a place outside of the tsriitorial limitsof this State. Rhan the **law** confers upon a person pcwersthat he, as‘s natural

person,does not possess, that power cannot accompany his personbeyond the boundaries of the sovereignty

whioh his conferredthe power.and although the Legislature

may requireor authorize oertain official

aots to be done beyondthe State'slimits,such acts are dona by expressauthority or permission,

and the power to perfonuthsm outside the territorial jurisdiction

of the State is not to be implied. Jacksonv. Hunzphrey, 1 Johns (N. Y.) 4981 McCullough v. Scott, 182 N.C. 865, 109 S.W* 789: Meoham,Public Officers, p. 332; 46 C. J. p. 1032.

It thus appearsthat (1) the Commission itself,as such,

must determine

the question

whethera proration order shall be rssoindsd(2) at a meetingof its members, (3) whichmeeting must be held within the territorial

limitsof the State of Texas, (4) at which a quorum of the Commissionars

are present,and (5) that th e exercise

of this power can not be. delegated,

but must be exercised by the Commissionas such.Hon. John E. Taylor,Pago 4 (O-1943)

Whhen the decision

of **tb** Commissionwith **nspct** to the adoption

or recission

of a proration

order has been lawfully made by it, the signing

of the order itself by the individual

Commissioners becomesa mere meohanioal orministorial

aot,.whioh

may %a dalegatedby the Conunissionars. Bee **our** opinionNo. O-1607,attached heroto.

The selection of the person or persons to l xeroisothis power of signing

ordstr for and at the instanaa and requsstof the individual ccawnissionars

would seem to involve the reposing

of specialoonfidenoa and trust in the person seleoted, and to that extantthe determirr*tion of the questioninvolving the exercise

of jud@ent and discretion in the s&action of such person or persons8 but it is a judgment or disontion to be exercised by the individual

ooarmissioners

in selecting

the parsons

who shall be authorized tn affixtheir respsotive signatures, and therefore

not an act to be performed bythe board M suoh. Henoo
no meeting of the board for this purpose is required, Aud, since the authority

to dolegato

tc anotherthe mechanioal orminist~rialtinotion of signing

his name ia a power or privilege;poasosssd by the commissioneras a naturalperson,that authority may b l

xeroised

by tha wmmissiknsrat a time when he ,is beyond the territorial limits of the state.

We trust that the foregoing sufficiently

an?.wers

the questions presented

by you.

Yoursv*rgr truly

BY **a/R.** W. Fairohila

R. W. Pairchild Assistalt

RWF:P%:%w

_- 4PmovBD FEB 9, N&O
s/Gerald C. km MTORWEYGEXE9ALOFTEXhS This Opinion Considered and Approvedin Limited Conferen