The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-03-07

PoIVuhi0y luz ldOur VI Gno ROADS, or TO
regulate the wages of it; and even its con-
stitutional mode of regulation for the OBJ
jects contem plated is limited to the pas
sage of laws, enforced by proper penal
ties, which penalties can only be recovered
by suits or prosecutions in the state, and
from this it follows that it cannot assume
the management of the roads in this state
by commissioners appointed to prescribe
terms OF fare and transportation in any
case whatever, for it has been often held
In our courts that when a power to do a
particular thing in a specified way has
been conferred on body and that body
is expressly required to perform it by its
own action, it cannot constitutionally de-
pute the power to do it to another body
created to act for them"
1t is 10 the rule of construction here an
nounced that Judge Terrell objects, ad-
mltting it to be correct when applied to
power of agency, created either by pri-
vate party or by a Legislature, contends
that it is not sound when applied to the
power of the legislature itself, which under
our theory of government is the great re-
pository of the lawmaking authority of the
people, acting uuder express limitations.
The meaning of this is, that although
when the legislature confers the power on
a particular body to do a certain thing in
a particular way by its own action, it can
not
DELEGATE THE POWER
to do it to any other body, still when the
people through their Constitution confer
upon the legislature the power to DO par
ticular thing in a certain way by their
own action in the passage of laws for that
purpose, they are not bound to do it in
the way prescribed in the Constitution,
but may delegate the power to do it to a
body created by them for that pur-
pose, because it, the legislature, "is
the great repository of the lawmaking
authority of the people acting under ex
press limitations"
This Is followed up by numerous sepa-
rate and distinct propositions and assert
ed assumptions of the correctness of his
position in favor of commission, not
with consecutive or connected process of
reasoning, and not supported by authori-
ty, so as to constitute a pertinent consti-
tutional argument, however much it might
have that appearance if not critically ex-
ing the isolated propositions, streaming
out in apparently rapid haste, and, as
must think, with want of due considera-
ton in shaping them, that does their dis
tinguished author
GREAT INJUSTICE,
he being one of the very best reporters of
the supreme court reporters that the
court ever had. From the general scope
of the letter his positions may be ascer-
tanned to be-frst, as the Constitution in
vests the legislature with general legisla-
tive power, it could have passed just such
laws as have been directed to be passed in
section 2 of the article of the Constitution
regulating railroads, if that section giving
that direction to the legislature had been
omitted; second, that the legislature being
invested with legislative powers the inser-
tion of section 2 OF the article requiring
the legislature from time to time to pass
laws regulating railroads and enforcing
all such laws by adequate penalties, does
not limit the legislature to that mode of
regulation as therein prescribed; and,
third, the legislature being invested with
general legislative powers, notwithstand-
ing the insertion of section of the arti-
Gle requiring the legislature to pass laws,
etc., regulating railroads, the legislature
has power to create a commission and
delegate to them the power to regulate
RAILROADS meaning according to the act
now pending in the legislature for that
purpose.)
To the first proposition need not and
do not object, but TO the second and
third do, being now plainly stated and
being directly opposed to the
views and rule of oonstruc-
tion announced by me in my
lecture on the subject regulating railroads
by the legislature of this state. AS the
come the subject of discussion, and the
views were not supported by regular au-
thority,. a proper respect for public opin
ion may require me TO supply that defect,
to a certain extent at least.
The legislature with the other depart
ments of the government constitute a
governmental agency to carry out the will
of the people as ex pressed in the Consti
tuition of the state. The Constitution in
vests the legislature with plenary powers
to pass all laws within the sphere of state
legislation, unless within the Constitution
itself there can be found something that
Will operate as prohibition, restric-
ton, or limitation expressed or implied.
1t is assumed in my lecture in effect that
it must be implied, from the provisions in
section 2 that the legislature must
conform its action in regulating railroads,
to the mode therein prescribed, and can
not do what is therein required by dele
eating the power to commission of
three disinterested persons to do it.
Being positive direction to the legis-
Iature, it limits the action of the legisla
ture to the mode which is prescribed by
it, not passively but imperatively. Cooley,
in his constitutional limitations quoting |
from New York decision says, as fol-
ows: "The people in framing the Con-
says DEMO Chief Justice,
COMMITTED to the legislature the whole
awmaking power of the state, which they |
lid not expressly or implicitly withhold.
power in the legislature for ell
purposes of civil government is the rule.
prohibition to the exercise of particu-