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

has been generally held, especially by the
supreme court of the United States. that
tue action of the legislature OF a State or
or a commission created by II, In hxirp
rates of transportation, would be revised
and would be set aside and annulled when
II violates tho constitutional eight OF the
carrier TO that degree that 1t amounts 10
i taking of propcry without proper com
pensation or without due process of law.
: But in doing so the courts have not re-
Nised the exercises OF discretionary power
on the part of the legislature or The com
mission. but It Is an Interference on the
part of the judiciary to protect partIes
against a violation OF the constitution Of
the United States or OF the State. whether
1t be In making or enforcing tho law. 1t
mas not been held that every rate, rule or
regulation which does not violate the con
stitution is reasonable, but that extreme
degree of unreasonablcness which conns~
Gates property gives jurisdiction TO the
court. IL our statute has not changed the
law, the same test must be applied in this
case.
The law of this State gives the right TO
any railroad company. or person who may
be interested. to institute, IN any court OF
Travis county having jurisdiction Of the
subject matter. a suit to test the dccls-
ion OF any rate. classification, rule. charge.
order, act or regulation adopted by the
SUM hhFFtAlNAl'I tViillii1 WI
party to file a petition setting forth the
particular causes Of objection to such de-
cisiun, etc. The test to be applied to every
such decision is, that It shall not be un-
reasonable or unjust to ouch railroad com
rany or other person complaining. Tho
great number OF subjects to which this nc
ton may apply, aud the fact that It may
embrace all or any one OF them, and may
be instituted by any person interested for
any cause which will show IL TO be unrea-
sonable. manifests an intention on the part
OF the legislature to establish a much more
liberal rule than previously existed upon
this subject. The decision made in estab-
fishing rates. claasilcaiiors. rule. charge,
orders or other regulation, might frequently
be unreasonable and unjust. and yet might
not amount to the taking OF property with
out proper compensation or without due
process of law. Indeed, as 10 some persons
who might be affected, and in the perform
ance OF some OF the acts enumerated, tho
property would not be taken at all, and
therefore the test which the attorney gen
eral would apply could not be applicable
For example; "A shipper of cotton might
institute Just such a proceeding as his to
set aside and annul these regulations, and
yet In the regulation made his property
would not be taken nor In any way appro-
prlated, for he Is not required TO have his
cotton compressed nor TO pay for IT unless
he chooses to do so. but In fact. his CON
venience and his substantial right of con-
troll OF his property might be interfercd
with by this character OF regulations to
such nm extent as to Ne unreasonable and
unjust toward him. without either taking
his cotton or imposing any charge upon II.
The language OF the law is so antagonistic
to the rule established by the decisions.
which construction Is claimed to have been
adopted by the legislature, that we must
conclude that the Legislature intended TO
change those rules In their application to
the subjects embraced IN the articles quot
ed, otherwise there was no need fur the
articles 456j and 45G6. Indeed, the confer
ring OF that jurisdiction upon the courts OF
itself imposed the duty to try the case by
the ordinary rules OF procedure, unless
otherwise provided. The attorney general
urges the incnL venience OF snch a rule and
the possibility of blocking tho business OF
the commission by such proceeding. II
may not be a wise policy to extend this
liherality to those who are affected by the
exercise Of the powFrs conferred upon the
commission. hut that question is for the
legislative branch Of the government, and
not for the courts, to deal with.
To the first question we answer; The
railroad commission had jurisdiction and
authority 10 make and enforce the regula-
tlons shown in tho statement accompanying
the questions.
To the second question we answer: In
actions OF This character the courts will
determine the question OF the reasonable
ness and Justice OF any matter by the same
rules as II It were an issue In other classes
OF suits. except as TO the conclusive char
actor of the evidence.
T. ]. Brown. Associate Justice.
Opinion delivered January rs, 1897.