The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-02-28

appointments OF agencies 10 prOtect the
people against oppressive charges.
Article 10, section 2, reads: Railroads
= are hereby declared public high
ways" Article IL, section 8, reads: "The
right to regulate tolls 4 4 collected
by corporations for the use of highways
4 x shall always depend on legisla-
tive authority" Thus, 1t would appear
that some other agency than the legisla-
ture was intended to perform the duty of
regulating tolls. 1t does not surely mean
that the fright" of the legislature to regu-
late tolls shall depend on legislative au-
thority." That would be equivalent to
saying that the right to do thing would
depend on the authority to do it. No such
constr uction was ever dreamed of, and,
yet, that is what it would mean if the
legislature can do nothing in the premises
but to fix by statute inflexible freight rates.
Itdoes not mean that the right of rail
road to regulate its own tolls should de-
pend on Legislative authority" for the
Constitution had already in section 2,
article 10, prohibited the railroads from
regulating their own tolls at all by pro-
viding that reasonable maximum rates
should be established by law.
The doctrine that power delegated to
one tribunal cannot be vested by such
tribunal in some other agency, has no ap
plication to legislature in the exercise
of powers inherent in it and pertaining
to police regulations of corporations
which are quasi public. Representing as
legislators the sovereign will of the peo-
pie under we'll defined limitations, state
legislature, when not expressly forbidden,
can give authority to any tribunal created
by it to protect the people against extor
ton by corporations of its own creation
ii this were not 80 every Legislative act
authorizing county commissioners
court to fix the tolls of a toll bridge would
be illegal. A railroad is public highway,
for the Constitution so declares, and toll
bridge is nothing more than part of
public highway. The Constitution declares
shat the right to regulate X X tolls shall
always be under legislative control" Who
will insist that because bridge tolls are
under Legislative control that the law
making power cannot delegate the author
ity to county commissioners court to
control them? That power is delegated
to county tribunals in every state. With
out any constitutional provision on the
subject the legislature had the inherent
power to fix maximum tolls and charges
on every toll bridge in Texas, and even if
the Constitution had required that body
to fix maximum toll charges on bridges,
it would neither have enlarged or limited
its power to do SO, nor would it have cur
tailed its power to require the commits
sioners' court to fix reasonable rates for
the people under such maximums depend
emit on the value of the bridge and the
amount of business. The use of the word
"shalP' in constitutional clause which
imposes duty on any department of the
government does not and cannot always
exhaust legislative power over the matter
referred to, unless there be manifest
inhibition against its further exercise.
70 give it such an effect would produce
the most startling results. The Constitu-
ton declares that the governor "shall
cause the laws to be faithfully executed"
Did that clause prohibit the legislature
from creating land board to detect
fraudulent appropriations of the public
domain (as it has done) and then
through the Encouragement and
the courts, without consulting
the governor, cause the laws to reclaim
such land, "to be faithfully executed?"
Tho Constitution declares that the at
torney-genersl "shall, whenever sufficient
cause exists, seek judicial forfeiture" of
railroad charters. Does the use of the
word "shalP' IN that connection tie the
hands of the Legislature from directing
proceedings for judicial forfeiture, if it
should differ with the encouragement as
to the existence of case for forfeiture?
The Constitution says the attorney-gen-
eral "shal" represent the state in all suits
4 in the supreme court. Does
that clause limit the power of the legisla-
ture and prohibit it from employing whom
ever it pleases to represent with him the
interests of the state if his want of ca
pacity, his sickness or the magnitude of
the interests involved should require itP
Would it render illegal an act to appoint
an assistant encouragement?
These provisions are referred to only
for the purpose of showing that under our
complex system of government the demo-
cratic. theory that the great residuum of
power, which has not been either con-
ferred on congress by the Federal Consti-
tuition, or its exercise prohibited in some
form, is always lodged in the lawmaking
power of the state legislature, or the peo-
pie. Thus, when the Cototitution declares
that the Legislature shall fix reasonable
maximum rates" of freight, it does not
limit and exhaust the Legislative power
over the subject 30 as to prevent the
creation of tribunal to so adjust sched-
ules in subordination to such maximums
as would be just alike to the roads and to
the people.
When a Constitution intends that leg
islature "shslp have no power to pass
laws of particular character, that inten-
ton must be manifested either by the fact
that the passage of such laws would violate
some mandatory provision of the Constitu-
ton intended to exhaust Legislative power
over the subject, or else the exercise of