Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1889-02-25

preSsly forbidden, can give authority to
any tribunal created by it to pro-
tect the people against extortion
BY corporations Of its own creation
If this were not SO, every legislative act
authorizing a county commissioners
court to fix the tolls of a toll bridge would
be Illegal A railroad is public high
way, for the constitution so declares, and
a toll bridge is nothing more than part
of q public highway. The constitution
declares stthat the right to regulate tolls
shall always be under legislative con-
troll - Who will insist that because
bridge tolls are under legislative control
that the Iaw-makIng power can
not delegate the authority to a
county commissioners court to con-
troll them? That power is
delegated TO county tribunals in every
state Without any constitutional pro-
vision 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 inherent power to
do so, nor would have curtailed its power
to require the commissioners court to
TX reasonable rates for the people under
such maXimums, dependent on the value
of the bridge and the amount of its bust
ness.
The use of the word 90 shall'' in con-
stitutional clause which imposes duty
on any department of the government
does not and cannot always exhaust leg
islative power over the matter re-
ferred to, unless there be manifest in
hibition against its further exercise. To
give it such an effect would produce the
most startling results. The constitution
declares that the governor ''shall cause
the laws to be faithfully executed. -
Did that clause prohibit the legislature
detect fraudulent appropriations of
and then through the attorney general
the governor, cause the laws to reclaim
such land, 81 to be faithfully executed. -
The constitution declares that the attor-
ney-general ''shall'' whenever suffi-
cient cause exists seek a judicial for
feiture'' Of railroad charters. Does the
use of the world shall in that connec-
ton tie the hands of the legislature from
directing proceedings for judicial for
fixture if il should differ with the attor-
ney-general as to the existence of cause
for forfeiture?
The constitution says the attorney
general shall represent the state in all
suits in the supreme court. Does that
clause limit the power of the legislature
and prohibit it from employing whoever
it pleases to represent with him the inter-
ests of the state, if his want of capacity,
his sickness, or the magnitude of interests
involved should require it?
The provisions are referred to only
for the purpose of showing that under
our complex system of government the
Democratic theory that the great resid-
uum of power which has not been either
conferred on congress in the Federal con-
stitution, or its exercise prohibited in
some form, is always lodged in the law
making power of the state legislature,
and the people. Thus when the consti-
tuition declares that the legislature
shall fix reasonable maximum rates
of freight, it does not limit and exhaust
the legislative power over the subject so
as to prevent the creation of tribunal
to so adjust schedules in subordination to
such maximums as would be just alike to
the roads and to the people.
When q constitution intends that
legislature ''shall'' have no power to
pass laws of particular character, that
intention must be manifested either by
the fact that the passage of such laws
would violate some mandatory provision
of the constitution, intended to exhaust
legislative power over the subject, or
else the exercise of the power must be
expressly prohibited in the constitution
itself. Though the word 'Eshall, :" as
used in some clauses of the constitution
may, from its connection with other
words and the matter to which it refers,
indicate purpose to exclude the exer-
else of power in any other way than the
manner prescribed, such is not always its
Judge Story said: f'It does not follow
either logically or dramatically that
because a word is found in one connec-
ton in the constitution with
q definite sense, therefore the
This would be to suppose
that the trainers weighed only the force
off single words as philologists or critics,
and not the whole clauses and objects as
statesmen and practical reasoners, yet
nothing is more common than to subject
the constitution to this narrow and mis-
chievous criticism.
Even if the arbitrary rule that an au-
thority once delegated cannot be dele
gated to another by the agent had any
general application to the powers of
state legislature acting as it does with
plenary powers except where they are
limited, we should not forget the caution
given by Judge Cooley, page eighty
three, when he says: ''All arbitrary
rules applied to state constitutions are of
very uncertain value and we do not re-
gard it as out of place to repeat here,
what we have had occasion already to
say in the course of this chapter, that
they are to be made use of with hesita-
ton and only with much circumspec-
ton -
While there are more than fifty prohi-
billions in our state constitution against
the power of the legislature to enact par
-icular laws, we search in vain for any
express limitations on its power TO enact
such police regulations as it may deem
proper to protect the people against the
of its own creation and
which are quasi public.
On the contrary the constitution plainly
Art y, Sec. 3, that 'the
right to regulate freights, tolls