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

government, whether monarchial or p6pu.
lar; and there are scattered through the
instrument few other provisions in re-
straint of Legislative authority. But the
affirmative prescriptions and general ar
rangements of the Constitution are far
more fruitful of restraints upon the legls-
lature. Every positive direction contains
an implication against anything contrary
to it, or which would Illustrate or disap-
point the purpose of that provision.
"Oooley, see page SO refers to 10 N. Y. p.
532."
"But the courts tread upon very danger
Gus ground when they venture to apply
the rules which distinguish directory and
mandatory to the provisions of Consti-
tuition. Constitutions do not usually
undertake to prescribe more rules of pro-
ceedings, except when such rules are
looked upon as essential to the thing to be
done, and they must then be regarded in
the light of limitations upon the power to
be exercised. 1t is the province of an
instrument of this solemn and permanent
character to establish those
FUNDAMENTAL MAxIMs,
and to fix those unvarying rules by which
all departments of the government must
at all times shape their conduct; and if it
descends to prescribe mere rules of order
in unessential matters, it is lowering the
proper dignity of an instrument and
usurping the proper province of ordinary
legislation. We are not therefore to expect
to find in constitution provisions which
the people. in adopting it have not re-
garded of high Importance, and worthy to
be embraced in an instrument, which for q
time at least is to control alike the gov
eminent and the governed, and to form a
standard by which is to be measured the
power which can be exercised as we'll by
the delegate as by the sovereign people
themselves. If directions are given con-
corning the times or modes of proceeding
in which power should be exercised,
there is at least strong presump
ton that the people designed
that it should be exercised in
that time and mode only. And we
impute to the people want of due ap
probation of the purpose and province of
such an instrument when we infer that
such directions are given to any other end"
Cooley Con. Lin, p. 70, referring to
numerous cases in different states, says:
"The essential nature and object of CON
stitutiOnal law being restrictive upon the
powers of the several departments
of the government, it is difficult
to comprehend how its provisions
can be regarded as merely direc-
tory" Nicholson Oh. jus. in Cannon VS..
Mathes, 8 Heis. 504, 5l7) Note to the
above case p. 49,
"To say that provision is directory
seems with many persons to be equivalent
to saying that it is not law at all. That
this ought not to be so must be conceded.
That it is so we have abundant reason and
good authority for saying. If, therefore,
constitutional provision is to be en-
forced at ALL it must be treated as manda-
tory. And, if the legislature
HABITUALIY DISREGARD
it, it seems to us that there is all the more
urgent necessity that the courts should
enforce it. And, it also seems to US that
there are few evils which can be inflicted
by strict adherence to the law so great
lis that which is done by the habitual dis
regard by any department of the govern
ment of a plain requirement of that in
strument from which it derives its
authority and which ought, therefore, to
be scrup1lously observed and obeyed."
This is comment of Mr.. Cooley after
reviewing the decisions in different states
upon the constitutional requirement, that
the title of law should indicate its
object, etc. Up. 1917
refer to Judge Cooley with confidence,
because he is an able jurist, and his book
is compiled from decisions of courts well
selected.
By the Constitution of 1869 provision
was made for a system of public educa.
ton, in which certain duties were required
to be performed by the superintendent
of public instruction and certain local
boards of school districts. The act of the
legislature of 1871 organized board of
education composed of the governor, at
torney-general and superintendent, and
gave them power to perform duties in the
place of, and in way different from
what was required of the superinten-
dent, by the expressed require
ments of the Constitution, and
in various other ways changed the
school system, as specifically provided for
by the Constitution, amongst other things
in the taxation of the school districts for
the support of the schools. The supreme
court of Texas decided the law to be un-
constitutional, and in delivering the opin-
ion, Justice G.. F. Moore said: "To the
uperintendent, as the central head and
executive officer of the system, is com
mitted general
POWER OF SUPERVISION
over the schools throughout the state, with
such duties concerning public education
as may be entrusted to him by the legisla-
ture. Such duties, from the fact of his
being an officer of the executive depart
ment must be of an executive character,
while those conferred upon the boards of
directors are legislative. 1t cannot be in
sisted that because the Legislature may re-
quire the superintendent to discharge
other duties concerning public instruc-
ton than those specifically mentioned,
that there is no restriction as to their ma
ture and character. To do 80 would VIC
ate the established canon 0f cnu afr uofior