The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1897-01-30

ne VIII. to the best of his ability. faithful
ly and Justly execute ana enforce the pro-
visions of this chapter. and all laws OF
this State concerning railroads. Article
45f9 contains this provision: at is hereby
made the duty Of such railroad commission
to see that the provisions OF this chapter
and all laws of this State concerning rail
roads arc enforced and obeycd and that
violations thereof are promptly prosecut-
cd, and penalties due the State therefor
recovered and collected" And in subdlvis-
ion 1 of the same article. this language is
used: at shall be the duty of the commits
sion to investigate all complaints against
railroad companies subject hereto, and Ia
enforce all laws OF this State in reference
TO railroads."
Article 1869 Revised Statutes reads as
follows: THE power and authority IS here
by vested in the railway commission OF
Texas, and It is hereby made its duty. to
adopt all necessary rates, charges and regu
lations to govern and regulate freight and
passenger tariffs. the power to correct
abuses and prevent unjust discrimination
and eNtortion in rates nf freight and pas
senger tariffs on the different railroads in
this State" BY these provisions the logls-
laturc has committed to the railroad COM
mission the enforcement of all the laws Of
the State concerning and regulating rail-
reads. and has. in the statute which created
the commission. copied almost literally The
language of article 10. section 2 Of the
constitution, in which the power Is given
specifically to the commission " to correct
abuses" Having used the same language
as that used in the constitution and In
the same connection, we conclude that the
Legislature intended expressly TO delegate
the power to the commission that the con-
7 stitution authorized to be delegated TO a
legislative agency. and the language OF
the constitution not being confined TO cor
I raaffnn ahuggu IN Tho rut.n ~ Fsgfyht md
passenger tariffs. we hold that the power
here conferred by the Legislature upon the
commission empowers ii to correct abuses
other than those which may be corrected
with the rates Of freight and passenger
tariffs.
The question tfep arises. what abuses
can the railroad commission correct? We
think that it must be some abuse which has
been defined by the law and that the COM
mission would not by this power be au-
ihorized to enact a law defining what Is
an abuse or a disregard of duty on the part
of a railroad corporation.
Has the legislature Of Texas defined any
act or acts as an abuse on the part of the
railroad companies under which the com
mission would have power in the suppress
sion or correction thereof to adopt the
regulations In question?
Article 1874, subdivision /. OF the Revised
Statutes, is in this language: ut shall
also he an unjust discrimination hr any
such railroad to make or give any undue
or unreasonable preference or advantage to
any particular person, company, firm, cor
p~oration or locality. or to subject any par
ticular description of traffic to any undue
or unreasonable prejudice, delay or disad-
| vantage in any respect whatsoever" We
think that the railroad companies In trang-
porting cotton might give undue and I'M
reasonable preference or advantage TO some
.-- - G.-. -..A
ton or locality or might subject the cotton
10 undue and unreasonable delay and that
the regulations prescribed by the commits
sion would be necessary TO correct and
prevent such abuses.
II the construction Of the constitution
and the law commended for by the appellee
be adopted. the commission has no power
10 maize any regulation by which any dis
elimination defined In the article above
quoted could be corrected or prevented.
The discrimination defined has no refer
cnce to rates Of freight or passenger tar
IFS. and. with a large part of the bill. must
be held to be unconstitutional under the
construction claimed.
This action was instituted undor sections
& and Z Of the original act which created
the railroad commission, and are now en-
braced in the Revised Statutes OF the state,
and so far as pertinent to the question be-
fore us, read MS follows;
"Article 1855. If any railroad company
or other party at interest be dissatisfied
with the decision OF any rate. classlheati0n,
rule. charge, order. act or regulation ADOPT
ed by the commission, such dissatisfied
company or party may file a petition set
ting forth the particular cause or causes
of objection to such decision. act. rate, rule,
charge. classification or order. or to either
or all of them. in a court OF competent
turisdiotln In Travis county. Texas, against
said commission as defendant,
ARTICLE 1856. In all trials under the
rorerolng article the burden OF proof shall
rest upon the plaintiff. who must show by
clear and satisfactory evidence that the
rates. regulation. order, classification act
or charges complained Of arc unreasonable
md unjust to 1t or them"
II Is claimed by the attorney general on
behalf Of the railroad commission, that the
courts have no power under this law to re-
view the action OF the railroad commits
sIoners IN regard TO any Of the matters
enumerated unless the complainant shall
show that the act complained OF amounts
10 a taking Of property without proper CON-
pengation or without due process OF law.
and In support of this position 1t Is as
serted tina prior to the enactment OF THIS
law the words unreasonable and unjust
when used In reference TO the action OF
legislative bodies aud OF commissions Gre
ated by them. mad received the ~lnterpreta-
ton that ouch acts must be unreasonable
aud unjust TO the extent OF being viola
tive of the constitution, and that the words
Unreasonable and unjust" must be 10 con
strued because II will be presumed that
tire legislature used them In that sense.
We know OF no decision OF mi court which
has defined either unreasonable" or "un-
just' TO mean that the act so character
lied Is the taking OF property without prop
er compensation or without due process OF
law. 1t is true that the courts have estab-
lished a rule that the reasonablenes and
Justice OF rates fixed by the Legislature or
by a commission empowered by II 80 10 do
are ordinarily questions committed 10 the
discretion of those bodies. and not subject
to revision by the courts, but in such cases
the law did not authorize any revision OF
such action b the judicial department. III