Fort Worth daily gazette. (Fort Worth, Tex.) 1882-1891, 1890-08-07


and fix rates, does that clause as il
stands take away or modify in any par
tioular this power? Does il not simply
go further and make it duty for tn,
legislature to do so? And does the add.
tional injunction of the duty modify o.
| annul the power, which carries with i
the right to use such means and agencies
as may be proper in carrying the power
into effect?
The interstate commerce law passed by
congress, in which railroad commission
was considered proper agency for car
rying 1t into effect, is maintained under
the granted power contained in the inter-
state commerce clause of the United
States constitution, which simply say:
that congress shall have power ''to reg
ulate commerce with foreign nations and
among the several states, and with the
Indian tribes. -
In the case of McWhorter VS.. Pensaco-
la Railroad Company, reported in twelve
American State reports, 232, the SUI
preme court of Florida in an able opinion
says that the legislature in creating q
commission does not delegate its author
ity, so as 20 render the act void under
the constitution of that state, which is
very similar to our own constitu ton up
on that subject. The court says: "Our
act is taken almost entirely from an act
of the state of Georgia. In the case of
Georgia R. R. VS.. Smith, 20 Ga. 694
the constitutionality of the late act was
attacked, and on this subject of the del
egation of authority to the commits
sion, was held not to be unconstitutional.
The Georgia constitution, like ours, gave
authority to the legislature to regulate
rates. By the former the constitution
conferred upon the legislature the
power of regulating railroad freight and
passenger tariffs, preventing unjust dis
elimination, and requiring reasonable
and just rates of freight and passenger
tariffs
BY ours (Florida) the legislature is
invested with full power to pass laws for
the correction of abuses and to prevent
unjust discrimination and excessive
charges by persons and corporations en-
gagged as common carriers III transport
ing persons and property, or performing
other services of a public nature; and
shall provide for enforcing such laws by
adequate penalties and forfeItures.
I'D. page 232.
So it is manifest that Sec. of Art. 10
of the constitution of Texas is practically
the same as those in Georgia and Florida
upon which the courts have passed, and
in which the question of the delegation of
authority was fully considered. Other
cases directly Involving the co minis
sion were Stone VS.. Yazoo, etc. Rail-
road, 81 Miss, COZ; 81 Amer. Rep,
1873; Stone VS.. Farmers L. and 7. Co.,
116, L. S. 3O7 and other authorities.
1t has been thought difficult to locate
definitely the department of government
to which a railroad commission would
justly belong. and whether it could
properly be an arm of the legislative and
at the same time
EXERCISE JUDICIAL POWERS.
In the earliest forms of government
the executive, legislative and judicial
functions were all exercised by the SOW
ereign. The diversified talent of DAVID
as king and judge are proverbiaI, and
Absalom's peculiar method Of raising a
revolt against his fathers kingdom by
attacking his judgments and exciting
adverse litigauts would have done credit
to modern politician.
The wise aud just judgments OF Solo,
mon first established his popularity as
an executive. 1--WE are to recolIect, -
says Mr.. Grote, in his history of Greece,
lative, executive AMI judicial, and
especially of the two latter, is quite of
modern origin. The arohon of Athens
was judge as well as an administrator.
The Roman kings and consuls, before
the appointment Of the praetors, sat as
magistrates, as well as ruled as executive
officers; and in modern Europe confusion
of powers is TO be found.'' (See Sedgwick
p. 100, note. In England the separation
of the departments of government into
executive, legislative and judicial was
the result of centuries of struggle, and
up to comparatively recent period par
Lament exercised many judicial func-
tions all of which have not yet entirely
disappeared.
In this country, under our constitu-
ton, all governments must be republic
can in form, and the three CO. ordinate
branches must be kept separate; there
fore, the question naturally arises, in
the appointment of q railway commits
sion, to what department does it belong?
If to an arm of the legislative, it cannot
rightfully exercise powers belonging to
either one of the other two departments,
none of its acts can be judicial, nor can
it exercise any of the functions of the
judiciary. See Article 2, Constitution
of Texas.
If not prohibited by the constitution,
the legislature can clothe it with a part
of its own powers, to fix the rates of
freight and passenger tariff, to change,
regulate, etc., and the rates so fixed
will be prima facie just and reasonable,
but they will not be final or conclusive,
and may be set aside II they can be
shown unreasonable or unjust, in any
court of competent jurisdiction. In
brief, a commission cannot act as an
arm of the legislative department, in
fixing rates, and then sit as q part of the
judicial department, in determining
finally upon the reasonableness of the
rates so fixed. If so, it could, without
the consent and approval of the execu-
tive, and in utter disregard of the judi
ciary, annul property values and practi- |
cally confiscate everything within its
Such results could find no
jurisdiction or excuse under any constI-
tuition, either state or Federal.
1t is to be regretted that it was deemed |
necessary in making our organic law to |
burden it with legislative enactmsnts. |
Under our form OF government, as inter-
preted by the highest and best authority, |
the constitution OF the United States is
one of granted powers only, and congress
has no power unless it is expressly |
or necessarily implied from the