Imperial Irrigation Co. v. Jayne

I regret that I am not able to agree with my associates in the disposition of this case. I shall content myself with a brief statement of my views on the constitutional question which my brother, Dibrell, has so ably discussed. His presentation of the provisions of the Constitution makes a strong argument in support of the conclusions reached by the majority of the court. I believe, however, that taking the Constitution as a whole, and especially the provisions which directly apply to the free school fund of the State, it appears that the sovereign people of this State, in convention, devoted one-half of the public lands and the proceeds thereof to the public purpose of free education. It is my opinion that this dedication by the people is paramount to any authority which may be implied in the Legislature from the fact that ordinarily the sovereign power of the people may be exercised by the legislative branch of the government. I will quote and to the best of my ability apply the provisions of the Constitution which, in my judgment, show that the power to dispose of the school lands of the State was emphatically defined and limited in the provisions of that instrument.

The school fund of the State is defined thus: "All funds, lands and other property heretofore set apart and appropriated for the support of public schools; all the alternate sections of land reserved by the State out of grants heretofore made or that may hereafter be made to railroads, or other corporations, of any nature whatsoever; one-half of the public domain of the State; and all sums of money that may come to the State from the sale of any portion of the same, shall constitute a perpetual school fund." (Sec. 2 of art. 7, State Constitution.)

It is apparent that the lands which are sought to be appropriated by the Irrigation Company in this case in part belong to the school fund of the State as defined above, and the next question that is pertinent to this controversy is, what authority had the Legislature over the school fund?

"The lands herein set apart to the public free school fund,shall be sold under such regulations, at such times, and on such terms as may be prescribed by law; and the Legislature shall not have power to grant any relief to purchasers thereof. The Comptroller shall invest the proceeds of such sales, and of those heretofore made, as he may be directed by the Board of Education herein provided for, in the bonds of the United States, the State of Texas, or counties in said State, or in such other securities and under such restrictions as may be prescribed by law; and the State shall be responsible for all investments." (Sec. 4 of art. 7, State Constitution.)

The following limitation is placed upon the power of the Legislature in the appropriation and disposition of the school fund, as before defined:

"The principal of all bonds and other funds, and the principal arising from the sale of the lands hereinbefore set apart for said school fund, shall be the permanent school fund; and all the interest derivable therefrom and the taxes herein authorized and levied shall be the available school fund, which shall be applied annually to the support of the public free schools. And no law shall ever be enacted appropriating any part of the permanent or available school fund to any other purpose whatever; nor shall the same or any part thereof ever be appropriated to or used for the support of any sectarian school; and the available school fund herein provided shall be distributed to the several counties according to their scholastic population and applied in manner as may be provided by law." (Sec. 5 of art. 7, State Constitution.)

It is said that the school fund belongs to the State of Texas just the same as it did before the adoption of this Constitution. That is true, but the sovereign people in convention by their delegates had the authority and by these provisions did direct and command the Legislature to use that school fund for a certain purpose and under certain limitations. The Legislature is subordinate in its powers to the provisions of the Constitution and had no power nor authority to do any act affecting the free school fund of the State which is prohibited by the Constitution. I agree that if these provisions of the Constitution are susceptible of the construction that the Legislature nevertheless had the authority to devote this fund to a different purpose from that to which the people had themselves devoted it, then the conclusion reached by the majority is right and I am wrong. I am unable to strengthen, by any argument that I can offer, the plain unequivocal provisions of the Constitution by which the Legislature is commanded to reduce the lands and other funds into cash and to make investment of that fund in certain securities which are named in the Constitution. What more forcible suggestion as to the limitation of the use of this fund when thus reduced can be offered than the terse language of the Constitution itself "and no law shall ever be enacted appropriating any part of the permanent or available school fund to any other purpose whatever; nor shall the same or any part thereof ever be appropriated to or used for the support of any sectarian school; and the available school fund herein provided shall be distributed to the several counties according to their scholastic population and applied in manner as may be provided by law." For want of more forcible and logical language I submit this quotation as my argument upon that proposition.

The land sought to be appropriated by the Irrigation Company is a part of the permanent school fund of the State of Texas and was, as shown above, dedicated by the convention which framed the Constitution to the support of the public free schools and the emphatic prohibition against a diversion of this fund applies to the land as well as to the proceeds thereof. If the lands were sold and converted into money the proceeds could not be diverted to the purposes of irrigation and, if the proceeds could not be so diverted, how can it be that the land could be?

The emphatic language of the Constitution whereby the appropriation of any part of this fund to another purpose is forbidden, precludes both construction and implication. It is evident that the framers of our Constitution had in mind that there might be an attempt to appropriate this fund to some other use, as had previously been done in the sale of the bonds and the appropriation of that fund, and it was the purpose, forcibly and tersely expressed, that this injunction should be placed upon the Legislature to prohibit a repetition of such a diversion of the fund.

There is no direct grant of authority to the Legislature to appropriate the lands which belonged to the school fund to the use of irrigation and it must rest upon an implied power contained in the Constitution. "Implied powers are such as are necessary to carry into effect those which are expressly granted and which must therefore be presumed to have been within the intention of the legislative grant." City of Madison v. Daily, 58 Fed., 755; Words Phrases, 4th volume.

Since there is no express power in the Constitution to make the grant, notwithstanding the prohibition, it must be rested upon a power implied, and there can be no implication of authority unless it arise out of the necessity to enable either the Legislature or the object of its donation to perform some act enjoined or to exercise some power conferred upon it by the Constitution itself. The Constitution imposes no duty upon irrigation companies, nor upon the Legislature with reference to them. It confers no authority upon irrigation companies to do any act whatever and therefore there can be no implication of a power to appropriate the lands herein which are forbidden by the Constitution to be appropriated to such purposes.

The Constitution of the State is the source from which all departments derive their authority, and the Supreme Court is no less a creature of the Constitution than the humblest court in the land, and its obligation to observe the provisions of that instrument and its limitations upon the powers of other departments and upon its own authority is as binding as upon any other department of the government. We are not at liberty to amend or enlarge the policy of the State by construction of the Constitution although the policy as defined and laid out in that instrument may seem to us to be too narrow and unfitted for the needs of the present day. Such conditions must be remedied by the exercise of the sovereign power of this government, by the sovereign, the voters themselves.

The opinion of the majority is planted upon the case of Texas Central Ry. Co. v. Bowman, 97 Tex. 417, without which I know of no support for the conclusion of my brethren in the decision of this court.

The opinion in the Bowman case is one of the ablest of many strong opinions written by Mr. Justice Williams and is conclusive as to the case then in hand. I am ready to surrender my objections in this case if that is fairly authority here.

I call attention to the fact that Judge Williams did not refer in his opinion to section 5 of article 7 of the Constitution, which prohibits the enactment of any law by which any part of the school fund might be diverted to any other purpose. Now I am ready to admit that the reasoning of that opinion would justify the conclusion that the members of the constitutional convention did not intend to include the right of way used by railroads over the school lands of the State, because that would produce conflict between section 5 of article 7 and that portion of the Constitution which granted the right to the railroads to construct their lines from one part of the State to another, to the enjoyment of which the use of the right of way over the school lands was an absolute necessity, therefore, it was legitimate to conclude, as the learned judge did, that it was not intended by the convention to grant this important right of construction and at the same time to deny it the necessary thing to enable it to so construct the road. If there be any facts in this case which place it upon the same footing as the Bowman case, then I shall retract my disagreement and stand with my brethren in the construction that they have reached. I wish to eliminate all irrelevant matter from this discussion and therefore admit that the law in question is the fruit of legislative power which resides in the people, and I admit that the Legislature may exercise its legislative power in regard to all matters wherein it is not prohibited by the Constitution, either directly or by fair implication. But I must insist that when the people have reserved to themselves the power to do a thing, or have denied to the Legislature the authority so to do, then the power remains with the people and the Legislature can not exercise such forbidden authority.

Recurring to the case of Railroad v. Bowman, I wish to examine the foundation upon which it rests, and then ascertain if it is applicable to the facts of this case. The scope of every judicial opinion must be determined by the facts of the case in which it is rendered. In the Bowman case the facts were that in the exercise of the power granted to it the railroad company had constructed its railroad over and across a section of school land which was afterwards sold to Bowman. The Legislature had enacted a law which was in consonance with the constitutional provisions, and authorized the railroad to so construct its line over all lands belonging to the State, to which I agree with the qualification that the people are the State and the Legislature merely the agents to perform and execute the will of the people. After the construction of the road the State sold the school land to Bowman and he brought suit against the railroad company for its possession. Judge Williams stated the issue in this form: "It is claimed that the Legislature is without power to grant such rights of way over school lands because of the provisions of the Constitution in the second section of article 7 that ``all the alternate sections of land, etc., shall constitute a perpetual school fund;' and in the fourth section of the same article that: ``That lands herein set apart to the public free school fund shall be sold under such regulations, at such times, and on such terms as may be prescribed by law." It is apparent from this statement of the issue that the question before the court was one of authority to be derived from the express provisions of the Constitution with regard to the railroads, as well as numerous other provisions which incidentally affected the construction of the clause then under consideration.

In this case it is claimed that an Act of the Legislature which authorized irrigation companies to appropriate public lands of the State of Texas empowered such corporations to appropriate the school lands also. The difference in the two cases lies in this that the power under which the Legislature enacted the law in question in the Bowman case arose out of the express grant of right to construct the railroad from point to point, while in the case now before us there is no mention of an irrigation company, or of the subject of irrigation in any part of the Constitution.

In the Bowman case the conclusion was legitimately reached from the language of the Constitution, that it was not intended, as we have said before, by the adoption of the clause under consideration, to deny to railroad companies the means whereby they could enjoy the power conferred upon them and perform the duties which they were required to assume. In this case there is nothing whatever in the Constitution conferring any power or imposing any duty upon irrigation companies, the performance of which required that they should occupy the public lands of the State, neither was there any authority conferred upon the Legislature nor any duty imposed upon it, with reference to the creation and control of irrigation corporations, the accomplishment of which required the use of public lands by such corporations.

In the Bowman case the court was treating of a subject which was perhaps the most prominent before the convention during its sitting, and it was elaborately provided for in the Constitution. I, therefore, repeat, that it was legitimate to conclude that the subject of the construction of railroads was in the minds of the members of the convention, and that it was not intended to embrace the grant to them in the prohibitory clause; there is not a sentence in the whole Constitution of the State of Texas from which the conclusion can be drawn that the members of the convention had in mind, at the time of the adoption of section 5, article 7, the subject of irrigation in any of its phases or that the members were in any way mindful of what might become necessary in regard to irrigation in the future.

The substance of the decision in the case of Railroad v. Bowman is that the many provisions of the Constitution with regard to the subject of railroads must be looked to in the interpretation of the provision requiring lands belonging to the school fund to be sold. Looking to all the provisions in the Constitution, from the bill of rights to the last article and section thereof, there is not one syllable or word which would throw any light whatever upon the intention of the convention in the enactment of the prohibitory section under consideration with reference to irrigation as then existing or a possible future development. I feel confident of my position that the Bowman case does not announce any rule of construction that can possibly apply to the facts of this case and that there is no similarity or analogy whatever between the two cases, therefore, the Bowman case can not govern us in this.

If the Legislature had authority to enact the irrigation law it is, in my judgment, of doubtful validity, because of its lack of any definite provisions to govern in the appropriation of the land, but I shall not discuss that question.