Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-25
HON. A. W. TERRELL.
His Reasons for Differing From the
Views of Gov. 0. NJ. Roberts.
The Authority of Legislature to go Beyond
the Mere Fixing of Maximum
Freight Rates.
AUSTIN. Feb. p, 1889.

Governor O. M. Roberts regarding the
constitutionality OF railroad commission
is before me.
Governor Roberts in a lecture to a law
class, ard which is being just now
extensively circulated through some
of the daily papers of the state,
has said that the legislature "can-
not assume the management of the
roads of this state by commissioners APP
pointed to prescribe terms of transporta-
ton and fare in any case whatever. -
He bases his opinion on that clause Of
the constitution which declares that the
legislature shall pass laws establish
ing reasonable maximum rates for rail-
roads, and attempts to sustain his posi-
ton by the familiar doctrine, that when
power has been conferred on body and
that bod is expressly required TO exer-
else it by its own action, it cannot consti-
tutionally delegate the power to another
body created to act as its substitute
This doctrine is elementary when
applied to the power of an
agency created either by private party
OF bv a legislature. for such an agent has
no authority to delegate that power to
another. But L respectfully submit that
It is not sound when applied to the power
of the legislature itself, which, under
our theory Of government is the great
repository of the law making authority
Of the people, acting under express
limitations.
Principles underlying the very Frame
work of government can not be destroyed
by the authority of any man IS name,
however eminent, and the general circu-
latlon by the daily press OF Governor
. 10 " lac1I1pa in rl1iS crisis Of leo.
islatiou must furnish my excuse for ex-
pressing a respectful dissent from his
conclusions.
think that no lawyer will differ with
me when 1 say that a state constitution,
though il recognizes and limits the
powers of the representatives of the peo-
pie acting as q aw-making body, yet
confers no powers on them.
The province of state constitution is
not to confer power on a state legisla-
ture, but to limit its exercise. Our con-
dition would be indeed pitiable if our
state legislature could enact only such
laws as the constitution expressly con-
ferred power on il to pass.
Herein consists the difference between
the powers of a state legislature and the
powers of congress; for, whereas, con-
gresS can exercise no power unless it be
expressly granted in the federal constitu-
ton, or that which results from necessary
implication, state legislature may eXer-
else all powers of legislation except those
prohibited, or such other powers as are
delegated to congress- The federal
constitution grants power to congress; q
state constitution limits the powers of the
legislature.
Judge Cooley in his constitutional linn
itations, page I73, well expresses this dis
tinction when he saws: ''When a law
of congress is assaulted as void we look TO
the national constitution to see if the
grant of specified powers is broad enough
to embrace if; but when q state law is
attacked on the same ground it is preSum-
ably valid in any case, and this pre-
sumption is 2 conclusive one unless in the
constitution of the United States or of
the stare we are able to discover that it is
prohibited We look in the constitution
of the United States for grants Of legisla-
tive power but in the constitution of the
state to ascertain if any limitations have
been imposed upon the complete power un-
der 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
limitation on the the exercise of the
legislative power Of a state can never ex-
list unless the intention To limit be clear.
1t cannot result as a mere Inference
otherwise the most sacred rights of the
people could be frittered away 10y judi
cial construction in tying the hands Of
the legislature.
What then is the effect of clause
in a state constitution which says
that the state legislature "shall''
enact a law which is not prohib-
tied by the Federal constitution?
It simply emphasizes as q duty the pas
sage of that law which the legislature
had power to enact, even if the
constitution had been silent. The
legislature had the power to fix
reasonable maximum freight rates, either
by q direct enactment fixing infiexlble
rates, or by the creation of tribunal to
fix them under legal limitations. This
right needed no granting clause in the
constitution to confer. it. The legislature
possessed il as an inherent power, and
when the constitution declared that
the legislature ''shan'' fix max
imum freight rates, it had
moo ther effect than to direct the ex-
ercise of the power, and did not and
could not limit the inherent right to Gre
ate tribunal TO adjust REASONABLE sched-
ules of freight rates in subordiuation to
such fixed maXimums. The direction in
the constitution to fix reasonable maxi,
mum 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 unless the constitution SO
declared.
The whole constitution relating TO the
subject of railroad freight rates should
be construed together. Thus construed
it seems manifest that it contemplated
the appointment of agencies to protect
the people against oppressive charges.
Article 10, section 2, reads: Rail-
roads are hereby declared pub
lie highways - Article II, section 3,
reads: 1.-The right to regulate tolls
collected by corporations for the
use of highways shall always
depend on legislative authority - Thus
il would appear that some other
agency than the legislature was
intended 10 perform the duty of
regulating tolls. 1t does not
surely mean that the right of the
legislature to regulate tolls shall ''de-
pend on legislative authority. That
would be equivalent TO saying that the
right TO 10 q thing would depend on the
authority to do it. No such construction
was eyer dreamed of and vet that i