The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-02-28
CONSTITUTIONAL POWER.
The Legislature, When Not Posi-
lively Prohibited, Holds the
Trump: Gard.
The Able Opinion of Prof. Roberts
Skilfully Dlssected and Elk
posed by Master
Hand.
AUSTIN, February %, 1889.

Hor. j. l. Moody;
Dear Sir-Your letter requesting my
reasons for dissenting from the views of
Gov. o. M. Roberts, regarding the consti
nationality of a state railway commission
and to authorize their publication, is be-
fore me.
Gov. o. M. Roberts, in q lecture to law
class and which is Just now being extern
sively circulated through some of the daily
papers of the state, has said that the leg
lslature "cannot assume the management
of the roads of this state by commission
ers appointed to prescribe terms of trans
poItation and fare in any case whatever"
He bases his opinion on that clause of
the Constitution which declares that the
legislature SHALL" pass laws establishing
reasonable maximum rates for railroads,
and attempts to sustain this position by
the familiar doctrine that when a power
has been conferred on body and that
body is expressly required to exercise it,
by its own action it cannot constitution
ally delegate the power to another body
created to act as its substitute. This
doctrine is elementary when ap-
piled to the power of an agency
created either by private party
or by legislature - for such
an agent has no authority to delegate the
power TO another. But respectfully sub
NIT that it is uot sound when applied to
the power of the legislature itself, which,
under our theory of government, is the
great repository of the lawmaking au-
thority of the people, acting under express
limitations.
Principles underlying the very frame
work of government should not be affected
by the authority of any mans name, how
ever eminent, and the general circulation
by the daily press of Governor Roberts
law lecture in this crisis of legislation
must furnish my excuse for expressing q
respectful dissent from his conclusions.
1 think that no lawyer will differ with
me- when l say that state constitution,
though it recognizes and limits the powers
of the representatives of the people, acting
as a lawmaklng body, yet confers no
powers on them.
The province of state constitution is
not to confer power on state legislature,
but to limit its exercise. Our condition
would be indeed pitiable if our state legis-
lature could enact only such laws as the
Constitution expressly conferred power
on it to pass.
Herein consists the difference between
the powers of state Legislature and the
powers of congress; for, whereas, congress
can exercise no power unless it be ex-
pressly granted in the Federal Constitu-
tion, or that which results from necessary
implication, a state legislature may ex-
ercise all powers of legislation except
those prohibited, or such other powers as
are delegated to congress. The Federal
Constitution grants power to congress
state constitution limits the power OF
the legislature.
Judge Cooley, in his Constitutional Linn
itations, page 173, we'll expresses this dis
tinction when he says: "When law of
congress is assailed as void we look to the
national Constitution to see if the grant
of specified powers is broad enough to
embrace it; but when state law is at
4 tackled on the same ground it is presum-
ably valid in any case, and this presump-
tion is conclusive one unless in the Con
stitution of the United States or of the
state we are able to discover that it Is pro-
h1bited. We look In the Constitution of
the United States for grants of Legislative
power, but in the Constitution of the state
to ascertain if any limitations have been
which the Legislative department was
vested in its creation" The state legis-
lature has jurisdiction over all subjects on
which its legislation is not prohibited.
"A limitation on the exercises of the
Legislative power of a state can never
exist unless the intention to limit be clear.
It cannot result as mere inference,
otherwise the most sacred rights of the
people could be frittered away by judicial
construction in tying the hands of the
legislature.
What, then, is the effect of a clause in a
state constitution which says that the
state legislature "shall" enact law which
is not prohibited by the Federal Constitu-
ton? 1t simply emphasizes as duty the
passage of that law which the legislature
had power to enact even if the Constitu-
ton had been silent. The legislature had
the power to fix reasonable maximum
freight rates, either by direct enactm' mt
fixing infexible rates, or by the creation
of tribunal to fix them under
. legal limitations. This right needed
no granting clause in the Con-
stitution to confer it. The Legislature
possessed it as an inherent power, and
when the Constitution declared that the
legislature "shall" fix maximum freight
rates, it had no other effect than to direct
the exercise of the power, and did not and
could not limit the inherent right to Gre
ate a tribunal to adjust reasonable
schedules of freight rates in subordination
to such fixed maxim ums. The direction
in the Oonsti ution to fix reasonable max
imum freight rates did not enlarge a
power which would have existed if it had
not been mentioned in the Constitution
and could not exhaust legislative power
over the subject unlees the Constitution sc
declared.
The whole Constitution relating to the
subject of railroad freight rates should be
construed together. Thus construed, il
seems manifest that it contemplated the