The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1900-01-24

regular session In 1901 and then would
have TO be submitted to vote OF the
people OF the State
Mr.. George l.. Porter OF Houston said
the discussion OF this matter proved very
conclusively to his mind that the State
needed new constitution. The constitu-
tion was behind the advancement of the
State and not only the question OF drain
4 age, but many others were deferred by tho
restrictions OF our Anticipated constitution.
He said the question of homestead law
was stumbling block TO nearly every
enterprise. He favored an honest home
stead law. but not one thai, IKE a piece
of rubber, could be stretched all over the
country Ii should not be law that AZ
forded people an opportunity to rob their
creditors. He did not think any man
should be thrown out OF his home, but no
debtor should be permitted TO hold Tor
homestead purposes palace costing $780,
600.
Colonel W. B. sosson said We wanted
Immediate action in the matter,
He suggested that a paper prepared by
Colonel r. r. Wheeler be read to she con-
vention. The paper was read by Mr. Rich
ardson and the following are excerpts;
The right to compel drainage OK swamps
and wet lands. thereby benehtng the pub
lie health and the public generally. by
rendering the lands OF the whole commu-
nifty fertile. as well as the right TO compel
the opening aud keeping In repair public
highways and public bitches has heea
recognized as law for centuries. The act
referred to was largely modelled after the
Indiana law. whose legislature has for
many years compelled drainage Of wet
lands under its police power aud redeemed
whole counties, while in very many other
States. the right is exercised under the
power of eminent domain. The right IN
no State in the Union has been in any
court of final resort denied for the want
OF constitutionality, whether II be founded
upon the right OF eminent domain, as In
some States or whether under tho police
power OF the legislature as in others; on
the contrary the right to drain wet lands
and foul marshes has been recognized
throughout christendom. When the public
good requires low and wet lands 10 be
drained the legislature, in order to pro
tect the citizen. has right to enact law
requiring II to be done under certain re-
strictions. The legislatures Of most OF our
States have from time 10 time enacted
laws for the construction and maintenance
of drains, but 1t is universally agreed that
mans land or property II any kind what
over, OF compel him to contribute 10 tae
construction Of drain, the public must
in some way be benefited by the improve
ment. The drain of a mans farm in order
TO render is more fertile or valuable, would
not CT itself be a work Of public utility.
In order to call in the power of the legis-
lature in order TO exercise the power OF
eminent domain the public must be bene-
flied. THE benefit flowing from the I'M
rrovement must be common" 1872 Ind
l92) II is true that the legislature tn
der the constitution has not the right ~
enact n law taking from 2 citizen his
property simply for the private benefit q
one or more individuals therefore in the
construction of drains in this state and
under this law which we are now discuss
ing. the petition for the drain must allege,
and the proofs Hereunder show. that the
drain would be q public utility, by no
means difficult proposition iu this lower
country, otherwise a proceeding can no.
be maintained And as to this question OF
public utility. 1t is certainly easily de-
termined II the proposed improvements
tend TO enlarge the resources, better the
health Of a neighborhood, increase indus
trial energies, and promote productive
power, convenience or general welfare Of
a considerable portion of the community.
In that event the use is public, no matter
how short the drain, nor through whose
lands It runs. AS we have said, tina rea
sen why the question Of homestead cuts
no figure in this matter is for the reason
that these sovereign rights that We have
heretofore discussed are superior to all
rights of title. ownership. homestead and
all property rights upon The principles
herein stated, and this precise question has
been decided in this State by our own
supreme court in the case OF j. aud \. B.
Randall vs. The Texas Central Railroad,
reported in GO Texas p. $50, wherein the
supreme court discusses the exact ques-
tion and cites and approves the following
language;
THE power OF the state to appropriate
the property IS unquestioned. and the
right Of the owner to be paid fer it is Sc
cured by the constitution. There can be
no dispute as to the fact that the property
was subject 10 the exercise Of the right
Of eminent domain, whether It did or not
plssess the homestead quality" THE
legal attitude OF the situation IL, that
there is in the State an undeniabe pow
er to appropriate individual property as
the public necessity requires. and which
pertains to sovereignty as necessary
constituent and an ineXtinguishable at
tribute" The supreme court Of the State
of California, in a case arising under
the act of that State In 1880 having pro-
own, in a case arising from the drainage
of a district adjacent to and overlooked
by the Sacramento river held that act
valid and superior to all exemptions. the
court saying: I'VE think the power OF
the legislature to compel local improve
ments which under its judgment viii pro-
mote the health OF the people and advance
the public good Is unquestionabe." In
Iowa the drainage for the public health
convenience OF welfare" Ia held coas,itu-
tional. In New Jersey the right OF drain
age Of low lands and meadows is re-
ferred to the police power OF the state
/. and is upheld in many able decisions. II
noted case arising under the State Of
!. New Jersey on apr cal to the supreme
7 court OF the United States. The validity
and constitutionality Of the drainage &c
! OF 1871 was maintained; the appeal being
! from the court of last resort IN New Jer
, sey, which was by the supreme court o
] the United States affirmed and held no
TO deprive the owner Of his property with
out due process of law, even within th'
, meaning OF the Fourteenth amendment
, Wurts vs. Hageland, ia u. s.. 606. In New
, York the drainage laws are sustained, boil
upon the grounds of public health and pub
lie use although in that State these ar,
! net made express conditions OF the exer
o;ca ~ the rnwar Par 1RG