City of Denison v. Municipal Gas Co.

257 S.W. 616, 1923 WL 52565

• Court: Court of Appeals of Texas
• Decided: December 15, 1923
• Docket: No. 9177. [fn*]
• Status: Published

Opinions

HAMILTON, J.

This suit was instituted by appellant, the city of Denison, to restrain appellee by injunction from collecting from patrons within the corporate limits of Deni-son a fixed monthly charge, designated as a “ready to -serve” charge, for fuel gas in addition to the charge for gas consumed.

A temporary injunction having been granted upon presentation of the petition, appel-lee filed a motion to dissolve and made it appear that the charge .complained of had been duly authorized by the Railroad Commission of Texas, and that, accordingly, the asserted right which appellant was undertaking to prevent it from exercising was a lawful one, and that no court except the district .court of Travis county, Tex., had any jurisdiction to entertain the suit.

Title 63Bof Revised Texas Civil Statutes (Vea-non’s), 1922 Supplement, which comprises articles 4042% to 4042%q, declares gas utilities to be affected with a public in terest and subjects them all to regulatiorf and control by the Railroad Commission. The Railroad Commission is given power, among other powers, to fix rates. Provision is made for an appeal to the Railroad Commission by any gas utility affected by the action of any city government in reducing or otherwise fixing rates, rentals and charges. It is enacted that if any party at interest / be dissatisfied with the Railroad Commission’s decision of any rate, classification, rule, charge, order, act, or regulation adopted by the Commission upon appeal to it, then such party may institute suit in a court of competent jurisdiction in Travis county to have the action of the Commission reviewed-

From the order dissolving the injunction the city of Denison has appealed upon the single proposition that the law is unconstitutional because the Railroad Commission is a constitutional body as distinguished from one created by statute, and hence the Legislature has no power to impose upon it duties foreign to it or that interfere with those given by the Constitution. And the constitutionality of the law is assailed for the additional reason that it undertakes to deprive courts created by the Constitution of the duties the Constitution empowers them to perform and to confer those duties upon a nonjudicial body.

Appellant places reliance upon its construction of section 2 of article 10 and section 30 of article 16 of the Constitution to demonstrate the invalidity of the statute. These are the only provisions of the Constitution which either by express language or by inference pertain to the Railroad Commission.

Section 2, art. 10, is as follows:

“Railroads heretofore constructed, or which may hereafter be constructed, in this state are hereby declared public highways, and railroad companies common carriers. The Legislature shall pass laws to regulate railroad freight and passenger tariffs, to correct abuses, and prevent unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads in this state, and enforce the same by adequate penalties; and, to the further accomplishment of these objects and purposes, may provide and establish all requisite means and agencies invested with such powers as may be deemed adequate and advisable.”

Section 30, art. 16, is expressed in this language:

“The duration of all offices not fixed by this Constitution shall never exceed two years; provided, that when a Railroad Commission is created by law it shall be composed of three commissioners, who shall be elected by the people at a general election for state officers, and their terms of office shall be six years; provided, railroad commissioners first elected after this amendment goes into effect shall hold office as follows: One shall serve two years, and one four years, and one six years, their terms to be decided by lot, immediately after they shall have qualified. And one railroad commissioner shall be elected every two years thereafter. In ease of vacancy in said office, the Governor of the state shall fill said vacancy by appointment until the next genéral election.”

A reading of the excerpt from the Constitution first above copied does not reveal the creation of a Railroad Commission thereby nor the specific purpose that such Commission shall be created. No careful, analytical consideration of it can impart that effect. The mandate is laid upon the' Legislature in this provision to regulate tariffs, correct abuses, and prevent discriminations and extortion. The explicit permission to establish means and agencies with such powers .as the legislative discretion may dictate to accomplish the required objects is embodied in the last clause of the section. This, however, is neither a grant of power and authority nor a definite command to exercise power and authority. At most, it is, in our view, a mere recognition of the police power which already inherently rested in the Legislature; no constitutional restriction thereon ever having been imposed. State Legislatures do not receive from Constitutions the power and authority they exercise in the realm of law enactment. It is to be borne in mind that in all American jurisdictions, the state Legislature is virtually omnipotent in the matter of legislation except in so far as the inhibitions of the Constitution plainly or by clear and necessary implication limit its power. The Constitution is not the source of the Legislature’s power. That power inheres in the Legislature in the nature of things, because it speaks and acts in the capacity of representing and expressing the sovereignty "of the citizenship. The Constitution, instead of being a grant of power to the Legislature, is the fundamental restriction and limitation by the people of its inherent power. The Constitution merely restrains and limits that power, and, as a general rule, any legislation not clearly inhibited by the Constitution may be enacted validly in any manner and as to any matter with reference to 'which no prescription is plainly discoverable in the Constitution.

The clause of the section above copied which merely declares that the Legislature “may provide and establish all requisite means and agencies invested with such powers as may be deemed adequate and advisable” is at most only directory. While authorities sometimes treat constitutional provisions relating to the legislative department of government as being “declaratory” or “permissive,” it is only those which are either mandatory or prohibitive that measure a law’s validity.

Only a strained construction, and one which the words' do not import but rather exclude, could shape the language of this section of article 10 into a requirement that the Legislature must establish a Railroad Commission, or any other body exclusively clothed with the power to deal with the subject over which the Legislature is enjoined therein to exercise its power and authority. The section does not create the Railroad Commission or any other office, nor does it require that such office shall be established by the Legislature. It does not lay out and specify that whenever such office is created by the Legislature the duties of it shall be 'confined exclusively’to the regulation of railroad rates, etc. At most, that clause of the section which declares that the Legislature “may provide and establish * * * , means and agencies” is only suggestive. It leaves unabridged the field of legislative discretion as to whether or not any such means or agencies shall be provided, and also what functions and duties shall he imposed upon them. We are therefore of the opinion that there is nothing in this section of the Constitution to sustain the view that the Railroad Commission which was established by the Legislature soon after its adoption is a constitutional office, or that the duties of such office when established by the Legislature are limited and restricted exclusively to matters pertaining only to railroad rates, abuses, and discriminations of an unjust nature. In other words, this constitutional provision embodies neither a requirement nor a restriction upon the Legislature as to the creation of a Railroad Commission, and it embodies neither a requirement nor restriction excluding from the Legislature the right to embrace within the scope of such Commission’s authority, when created, the duty and the authority to enforce the police power prescribed and conferred upon it by the Legislature as to matters other than those pertaining exclusively to railroads.

But it is contended that after the adoption of this amendment embraced in section 2 of article 10 of the Constitution, which was adopted on December 19, 1890, the amendment embraced in section 30 of article 16, above copied, and which was adopted on December 21, 1894, has the effect, especially considered in connection with section 2 of article 10, and in the light of the history of the adoption of these articles, to make the office of Railroad Commissioner a constitutional office with duties pertaining exclusively to the matters which section 2 of article 10 requires the Legislature to deal with and regulate. We cannot accede to this view. Section 30 does not create a Railroad Commission, but merely provides that when such Commission is created by law, that is, by legislative act, then it shall consist of three members, whose terms of office are fixed by the Constitution. This section deals with the terms of offices, generally, and specially provides in the instance of railroad commissioners that their respective terms shall be six years only in the event such office is created by the Legislature. That portion of section 30 of article 16 which requires that one railroad commissioner shall be elected every two years, and that in case of vacancy in the office the Governor shall fill the vacancy by appointment until the next general election, merely qualified the provision limiting the Legislature’s power as to the number of commissioners in the event the Legislature creates the office, and fixing the respective terms of the members of the Commission so long as it exists under legislative creation and authority. Since neither of the constitutional provisions relied upon by appellant creates the Railroad Commission or requires its creation by the Legislature, we are of the opinion that it must be held to be not a constitutional but a legislative office. And since neither expressly nor by clear and necessary implication are the duties of such body, wbén created and kept in existence by the Legislature, restricted and confined exclusively to dealing with and regulating matters pertaining to railroads, we are constrained to hold that the Legislature is under no constitutional inhibition which renders invalid the imposition of powers and duties conferred upon the Commission by the provisions of article 4042% et seq.

The act is not unconstitutional on the ground that it undertakes to deprive courts of constitutional duties conferred upon them and to empower a nonjudicial body to exercise such judicial duties. The fixing of rates and regulating gas utilities in the manner provided by the terms of the statute is not a judicial function, and is therefore not an invasion by the Legislature of the judicial branch of government.

It is ever to be borne in mind by the court that is called upon to strike down a legislative enactment that, whenever it is reasonably possible to do so, the statute assailed as being unconstitutional must bo so construed as to give it force and validity. A legislative enactment is the solemn exercise of governmental power by a co-ordinate branch of government bound by the same duty as is the judicial department to respect and conform its actions to the Constitution. It is to be presumed that the Legislature has acted in conformity with the fundamental law, and therefore the presumption always is in favor of the constitutionality of a legislative act. In measuring the enactment attacked, if any doubt intrudes to affect the conclusion of the court, such doubt must be Resolved in favor of the statute and its constitutionality sustained unless by every fair construction its invalidity clearly and palpably appears.

Appellant relies upon the maxim, “Ex-pressio unius est exclusio alterius,” and maintains that since section 2 of article 10 exclusively comprehends a command to the Legislature to regulate railroads, and since ¡section 30 of article 16 fixes the terms of railroad commissioners at six years, the maxim has proper application and, accordingly, if applied, inhibits legislation imposing upon the Railroad Commission duties relating to any other matter. This maxim cannot be applied in expounding constitutional provisions so as to shut out the elementary rule above stated to the effect that only in those instances where the Constitution either expressly or by clear and unavoidable implication restrains legislative power, the exercise of that power in any enactment of a police regulation must be sustained by the courts.

While, no doubt, the regulation of railroads alone was the thought in the minds of the people at the time the constitutional provisions were adopted, they contained no language which indicates a purpose to create a Commission or other agency clothed exclusively with the power and authority to deal with matters solely pertaining to railroads, and therefore the imposition of those duties and powers upon a body clothed with authority over other things is not exclusively indicated.

Since the statute fixes the jurisdiction for review of the action of the Railroad Commission, exclusively in courts of Travis'county, Tex., the court below was without jurisdiction to review any rate fixed by the Railroad Commission upon appeal to that court by appellee; and, it appearing that the rate complained of had thus been fixed by the Railroad Commission, we think the court below was without jurisdiction to grant the injunction in the first instance and that its action in dissolving it was proper.

Being of the opinion that the statute does not contravene any constitutional provision, and that the court below was without jurisdiction to grant the writ of injunction, we will affirm the judgment dissolving it.

Affirmed.