City of Denison v. Municipal Gas Co.

On Motion for Rehearing. The opinion of the court affirming the judgment of the court below was rendered by Associate Justice HAMILTON, who recently resigned from this court. The opinion of Judge HAMILTON is a clear, forceful, conclusive argument, fully justifying the judgment of affirmance, and nothing said now is intended to subtract from or add to what Judge HAMILTON so well said in discussing the questions under consideration by him.

Counsel for appellant has filed a lengthy motion for rehearing, in which it is strenuously insisted that the office of railroad commissioner is a constitutional office, and, being such, that the Legislature was without authority to confer upon the Commission any duties other than those relating to the regulation of railroad freight and passenger tariffs, the correction of abuses, the prevention of unjust discrimination and extortion in the rates of freight and passenger tariffs on the different railroads of this state, and to enforce the same by adequate penalties. The contention is made, in effect, that when the Legislature clothed the Commission with these duties, it exhausted its power.

To this proposition we cannot assent, even though it should be determined, which we do not, that the Railroad Commission is a constitutional office as contended by appellant. To assent to the doctrine insisted upon by appellant, we would have to find in the Constitution, either an expressed or an implied limitation prohibiting the Legislature from conferring other or unrelated duties on a constitutional officer. No express limitation can be found in the Constitution; hence, if the Legislature was prohibited from placing under the jurisdiction of the Railroad Commission the "Cox Law" relating to gas utilities, being chapter 14 enacted at the Third Called Session of the Thirty-Sixth Legislature (Vernon's Ann.Civ.St. Supp. 1922, arts. 4042 1/2-4042 1/2q), it must be by reason of some implied restraint. The doctrine of implied powers and restraints is well known to the law of constitutional construction. It results from the fact that it is never practicable in a Constitution to specify in detail all its objects and purposes, or the means of carrying them into execution; therefore, constitutional powers are granted or prohibited in general terms, from which implied powers and prohibitions necessarily arise. In order for an implication to arise, restraining the Legislature from conferring new duties on a constitutional officer, unrelated to the customary duties of the office, it must clearly appear that the prohibition is necessary to safeguard and to not frustrate or disappoint the purpose of the people expressed in the constitutional provisions under consideration.

It does not appear to us, and in our opinion it cannot be made to appear, that the accomplishment of the purposes of the people expressed in the provisions of section 2, art. 10, of the Constitution, through the means and agency of the Railroad Commission, will be either frustrated, hindered, disappointed, or defeated by adding to the jurisdiction of the Railroad Commission the new duties conferred by the Cox Law; and, in our view, there exists no occasion to imply a prohibition against the power of the Legislature to enact this law.

In determining the constitutionality of statutes, great weight has always been given to contemporaneous interpretations of its provisions by the different departments of the government. This is illustrated by the construction given by the legislative branch of the government to the provisions dealing with legislative powers. While a legislative interpretation is not conclusive, yet it is entitled to great weight and should not be departed from unless manifestly erroneous. The rule is stated in Ruling Case Law, vol. 6, § 60, that —

"Any exercise of power by the Legislature which for a long time has passed unchallenged, must be deemed to have been approved by the people unless forbidden by some subsequent constitutional provision."

This rule is announced in 12 Corpus Juris, p. 714, as follows:

"If the meaning of the Constitution is doubtful, a legislative construction will be given serious consideration by the courts, both as a matter of policy and also because it may be presumed to represent the true intent of the instrument. A contemporaneous legislative exposition of a constitutional provision is entitled to great deference, as it may well be supposed to result from the same views of policy and modes of reasoning which prevailed among the framers of the instrument expounded, and the long-continued and unquestioned exercise of a given power by the Legislature is a weighty consideration in favor of the constitutionality of such exercise of authority, provided such enactments have been uniform. Where a state constitutional provision is susceptible of two constructions, the action of the Legislature in adopting one of those constructions, and in enacting a statute to carry it into effect as thus construed, is sometimes deemed conclusive."

Now, in the light of this doctrine, let us see how the Legislature of this state has interpreted the Constitution with reference to its authority to confer new duties on constitutional officers not traditionally associated with the office.

The office of Governor is without doubt a constitutional office, the duties of which are prescribed with great detail, and yet scarcely a session of the Legislature ever passes without new duties being conferred upon the Governor. The Governor is at this time a member of a number of permanent and temporary boards, among others the following: He is on the anti-tuberculosis commission; a member of the state bureau of child and animal protection; a member of the board of equalization of taxes for property in unorganized counties; a member of the state board of education; and a member of the board to calculate and fix the ad valorem tax rate. He was, within recent years, made a member of a temporary board to acquire land and build a new institute for the blind; also, was made a member of the board to negotiate with and sell to the United States government all property owned by the state and used for quarantine purposes.

The office of Lieutenant Governor is also without doubt a constitutional office whose duties are defined in the Constitution. The Legislature has repeatedly devolved additional duties upon the Lieutenant Governor by making him a member of various boards and bureaus.

One more instance is in point, and that is, that section 38 of article 16 of the Constitution provides:

"The Legislature may, at such time as the public interests may require, provide for the office of commissioner of insurance, statistics and history, whose term of office, duties and salary shall be prescribed by law."

Under this provision, the Legislature created the office of commissioner of insurance, statistics, and history, and conferred upon such officer the discharge of duties pertaining to the subjects named.

If the contention of appellant is correct, the Legislature was without authority to confer duties to be discharged by this officer, except as the duties conferred relate to the subjects of insurance, statistics, and history. The Legislature, however, did not so interpret the Constitution. In 1904 the people amended the Constitution (article 16, § 16), and provided for the incorporation of state banks and trust companies, and, among other things, the amendment contained the following provision:

"Shall provide for a system of state supervision, regulation and control of such bodies, etc."

The Twenty-Ninth Legislature passed an act providing for the incorporation of state banks and trust companies, as authorized by this amendment to the Constitution, and conferred on the commissioner of insurance, statistics, and history the duty of administering the law. See section 38, c. 10, Acts 1st Called Session 29th Legislature, p. 501.

By this continued practice of the Legislature in conferring upon constitutional officers duties not traditionally associated with the office, it evidences conclusively that the Legislature gave to the Constitution an interpretation in harmony with their customary procedure; that is, in harmony with the view that no restraints, either expressed or implied, existed in the Constitution against their action in these respects.

This doctrine is in harmony with the view stated in 29 Cyc. 1431. Speaking with reference to officers known to the common law, mention of which in the Constitution carries the authority usually conferred upon such officers at common law, the following is announced:

"Where mention is made of such officers in the Constitution, it has been held that they must acquire a constitutional right, of which the Legislature may not deprive them — although the Legislature is not prevented from conferring upon them and taking from them new powers which have not been traditionally associated with the office."

We see no reason to disturb the judgment heretofore rendered in this cause, and therefore overrule appellant's motion for rehearing.

Motion overruled.