Trapp v. Shell Oil Co.

Mr. Chief Justice Alexander

dissenting.

I cannot agree with the views expressed in the majority opinion.

This is a Rule 37 case. The Railroad Commission adopted Rule 37, applicable to the East Texas Oil Field, which had the effect of limiting one well to each ten acres, but permitted the drilling of additional wells where necessary to prevent confiscation or waste. Trapp was granted permission to drill a second well on the “Anderson Crisp 1.77-acre or 3-acre tract in the McAnally and Alexander Surveys, East Texas Oil Field, Gregg County, Texas.” The Shell Oil Company and the Gulf Oil Corporation filed suit to set aside the permit. The trial court found that the second well was not necessary in order to prevent waste or confiscation, and cancelled the permit. This judgment was affirmed by the Court of Civil Appeals. 189 S. W. (2d) 26 .

There is no question of waste involved in this case. Trapp’s claim of right to an additional well is based on his assertion that while he has a record title to only 1.366 acres, he in good faith claims title to enough additional land to increase his tract to 1.94 acres or possibly 2.25 acres, and in view of the size of his tract and the number of producing wells on the adjoining tracts, he is not getting his fair share of the oil. However, the trial court filed findings 'of fact in which it was found that Trapp owned only 1.366 acres, and that he did not have a good-faith claim of title to any additional land. The trial court further found that even though Trapp’s tract had contained 2.25 acres, he was nevertheless getting more than his fair share of the oil in the field.

.It seems to be recognized by all parties that if Trapp owns only 1.366 acres of land as found by the trial court, he is receiving his fair share of the oil, and the second well is not necessary in order to prevent confiscation. It is also clear that if, under the above facts, he is allowed an additional well, he will get more than his fair share of the oil. He will be permitted- to appropriate or confiscate oil which rightfully belongs to his neighbors. It will be seen then that the case involves no issue of public policy — no question of waste of our natural resources. It involves only a controversy between private parties concern

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ing the extent of their respective property rights and whether the Commission’s order impairs the property right of one in favor of the property right of the other.

In order to determine whether Trapp was getting his fair share of the oil it was necessary to ascertain the size of his tract of land. The crucial point in the case therefore was whether or not he had a good-faith claim to more than 1.366 acres of land. The trial court found against him on this issue.

But the majority opinion adopts the theory that in a case like this the Railroad Commission makes the findings on all issues of fact, and its findings are binding upon the court if there is any substantial evidence in the record to sustain them. That this is the holding of the majority is made even clearer by the statement contained in the companion case of Thomas v. Stanolind Oil and Gas Company, decided on the same day, wherein it was said:

“The Legislature has clothed administrative agencies with special powers to perform special functions and in reviewing fact findings of such agencies no question of the preponderance of the evidence is involved. The question is whether or not there is any substantial evidence affording reasonable support for such findings and the orders entered thereunder.” 145 Texas 270, 273 , 198 S. W. (2d) 420 .

Upon this theory the majority holds that even though the trial court found that Trapp- did not have a good-faith claim to any additional land, yet since witnesses testified to facts which, if credible, would support the claim of additional land, the trial court was not entitled to reject this evidence, but was bound to accept the same as true and to give it credence over all other evidence to the contrary, and to assume that Trapp did in good faith claim the additional land. In other words, it holds that in passing on a Rule 37 case in determining whether the applicant’s oil would be confiiscated without the additional well or whether the order of the Railroad Commission granting the additional well would enable the applicant to appropriate his neighbor’s oil, the trial court is not permitted to pass on the credibility of the witnesses or the weight to be given to the testimony ,nor to otherwise exercise its fact-finding function as a trial court, but is bound to accept unqualifiedly as true all testimony given upon the trial which would tend to support the order entered by the Railroad Commission, and to sustain the permit if there is any substantial evidence to support it. Upon

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this theory the majority holds that neither the trial court nor the appellate court is authorized to set aside the permit granted by the Railroad Commission.

I cannot subscribe to the above doctrine.

I concede that if in fact oil is being wasted the Railroad Commission is authorized to exercise its discretion in determining

how

the waste may be stopped, and whatever order it enters for the remedy of this situation will be sustained by the courts if there is any substantial evidence to support it, provided the order entered by the Commission does not itself produce confiscation. This is so because the matter of preventing waste of oil has been committed by the Legislature to the discretion of the Railroad Commission, and the courts will not put themselves in the position of the Railroad Commission and undertake to direct

how

the Commission shall exercise the discretion confided to it. Railroad Commission v. Shell Oil Co., Inc., 139 Texas 66 , 161 S. W. (2d) 1022, 1029 .

, But the Railroad Commission is authorized to exercise its discretion only when this is necessary to

prevent waste.

No discretion has been conferred on the Commission to confiscate the property of one private party in favor of another private party. The Commission is not entitled to exercise its discretion in preventing waste until it is first shown that oil is being wasted. And in the exercise of its powers it must not cause the misappropriation of the oil of either of.the parties. Whether or not the order of the Railroad Commission causes confiscation may be questioned in court, and when it is questioned that issue must be tried out as any other issue of fact.

The fallacy of the majority opinion lies in the failure to recognize the distinction between the right of the Railroad Commission-to determine

how

its discretion shall be exercised when the facts invoke it, and the right of the courts to determine whether the order of the Railroad Commission amounts to a confiscation of the vested property rights of one of the parties.

It must be remembered that every landowner or lessee of land has a

vested property right

in the oil in and under his land and is entitled to a fair chance to recover it or its equivalent. Any denial of this right constitutes confiscation of one’s property rights. Railroad Commission v. Gulf Production Co., 134 Texas 122, 125 , 132 S. W. (2d) 254 . The right of the surrounding land

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owners and lessees to be protected against the taking or confiscating of their property

arises by virtue of the Constitution,

and where constitutional rights are thus involved the parties are entitled to have all issues of fact relating thereto tried out by the court

upon its own independent judgment,

uninfluenced by any implied finding of the administrative agency charged with having interfered with such constitutional right. The Railroad Commission, the administrative agency charged with having caused confiscation, has no right to adjudicate the issues of fact and to bind the courts by its findings. It cannot sit in judgment and finally determine the issue of fact as to whether it has exceeded its own authority. To sanction such practice would allow it to sit in judgment in its own case and to deprive the individual of his constitutional right of trial by jury.

In the case of Crowell v. Benson, 285 U. S. 22, 60 , 52 S. Ct. 285 , 76 L. Ed. 598 , the Supreme Court of the United States said:

“In cases brought to enforce constitutional rights, the judicial power of the United States necessarily extends to the independent determination of all questions, both of fact and law,

necessary to the performance of that supreme function. The case of confiscation is illustrative, the ultimate conclusion almost invariably depending upon the decisions of questions of fact.

This Court has held the owner to be entitled to• a ‘fair’ opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to both law and facts.”

(Italics mine.)

In the case of Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 , 40 S. Ct. 527 , 64 L. Ed. 908, 914 , the Supreme Court of the United States had under consideration an order of a state public service commission fixing water rates. The rate was attacked on the ground that it was confiscatory. The Court said:

“Looking at the entire opinion we are compelled to conclude that the supreme court (of the State) interpreted the statute as withholding from the courts power to determine the question of confiscation according to their own independent judgment when the action of the Commission comes to be considered on appeal.

“The order here involved prescribed a complete schedule of maximum future rates and was legislative in character. Prentis v. Atlantic Coast Line Co., 211 U. S. 210 , 53 L. Ed. 150 , 29 Sup. Ct. Rep. 67; Lake Erie & W. R. R. Co. v. State Public Utility

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Commission, 249 U. S. 422, 424 , 63 L. Ed. 684, 687 , P. U. R. 1919D, 459, 39 Sup. Ct. Rep. 345. In all such cases, if the owner claims confiscation of his property will result,

the state must provide a fair opportunity for submitting that issue to a judicial tribunal for determination upon its own independent judgment as to* both law and facts;

otherwise the order is void because in conflict with the due process clause, 14th Amendment.” (Italics mine.)

In the case of Prentis v. Atlantic Coast Line Co., 211 U. S. 210, 228 , it was said:

“Whether their property was taken unconstitutionally depends upon the valuation of the property, the income to be derived from the proposed rate and the proportion between the two — pure matters of fact. When those are settled the law is tolerably plain. All their constitutional rights, we repeat, depend upon what the facts are found to be.” (Per Mr. Justice Holmes.)

In Chicago, B. & Q. R. R. Co. v. Osborne, 265 U. S. 14, 16 , it was said:

“When such a charge as the present is made it can be tried fully and fairly only by a Court that can hear any and all competent evidence, and that is not bound by findings of the implicated Board for which there is any evidence, always easily produced.” (Per Mr. Justice Holmes.) See also Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 399 .

The rule above announced has been followed by this Court in the following cases: Lone Star Gas Co. v. State, 137 Texas 279 , 153 S. W. (2d) 681, 699 , par. 20; Railroad Commission v. Houston & T. C. Ry. Co., 90 Texas 340 , 38 S. W. 750 ; and Gulf, Colorado & Santa Fe Ry. Co. v. Railroad Commission, 102 Texas 338 , 113 S. W. 741 , 116 S. W. 795 ; Stockwell v. State, 110 Texas 550 , 221 S. W. 932 , 12 A. L. R. 1116.

This suit certainly involves the question as to whether the order entered by the Railroad Commission amounts to confiscation of contestants’ vested property rights, and under the above decisions contestants are entitled to have that issue determined by the court upon “its own independent judgment as to both law and facts.” The effect of the majority opinion is to overrule the holding of this Court in the cases last above cited.

Moreover, as pointed "out in the Trem Carr case (Railroad

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Commission v. Shell Oil Co., 139 Texas 66 , 161 S. W. (2d) 1022, 1028 ), the doctrine that the administrative agency should find the facts and that its finding should be conclusive if supported by evidence is foreign to the law of this State. Such doctrine seems to have had its origin in the statutory enactments by the Congress of the United States. These statutes usually provide: “The findings of the Board (or Commission) as to the facts, if supported by the evidence, shall be conclusive.” Mr. Stason in his article in 89 Pennsylvania Law Review, p. 1026, lists nineteen such statutes so enacted by the Congress of the United States.

We have no such statute in this State relating to' Rule 37 cases.

The Act here in question provides for a testing of such orders in the district court, in the following language:

“Sec. 8. Any interested person affected by the conservation laws of this State relating to crude petroleum oil or natural gas, and the waste thereof, including this Act, or by any rule, regulation or order made or promulgated by the Commission thereupon, and who may be dissatisfied therewith, shall have the right to file a suit in a court of competent jurisdiction in Travis County, Texas, and not elsewhere, against the Commission, or the members thereof, as defendants, to test the validity of said laws, rules, regulations or orders. Such suit shall be advanced for trial and be determined as expeditiously as possible and no postponement thereof or continuance shall be granted except for reasons deemed imperative by the Court. In all such trials, the burden of proof shall be upon the party complaining of such laws, rule, regulation or order; and such laws, rule, regulation or order so complained of shall be deemed prima facie valid. (As amended Acts 1932, 42nd Leg., 4th C. S., p. 3, ch. 2, sec. 8; Acts 1935, 44th Leg., p. 180, ch. 76, sec. 14.)” Vernon’s Ann. Civ. St. Art. 6049c, sec. 8.

It will be noted that the statute authorizes the filing of a “suit” to test the validity of proration orders issued by the Railroad Commission, and further provides: “In all such trials, the burden of proof shall be upon the party complaining of such laws, rule, regulation or order; and such laws, rule, regulation or order so complained of shall be deemed prima facie valid.” It is clear from the above that it was intended there should be a “trial” of the issue in court, and no limitation is placed on the sort of trial to be had, except that it must be one to test the validity of the order, and the burden of proof is on the one complaining thereof. A “trial” as commonly understood contem

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plates a judicial examination of all the issues of law and fact. 64 C. J. 31. That was the only kind of trial known to the courts at the time the statute was enacted. In the case of Morrow v. Corbin, 122 Texas 553, 560 , 62 S. W. (2d) 641, 645 , this Court said:

“Briefly stated, what we here intend to say is that the jurisdiction of trial courts, under the Constitution, once it attaches, embraces every element of judicial power allocated to those tribunals, and includes: (1)

The power to hear the facts,

(2)

the power to decide the issues of fact made by the pleadings,

(3)

the power to decide the questions of law involved,

(4)

the power to enter a judgment on the facts found in accordance with the law as determined by the court,

(5)

and the power to execute the judgment or sentence.”

There cannot be a judicial examination of what the facts are without the right to pass on the credibility of the witnesses and the weight to be given to the evidence. It would indeed 'be a very limited trial if the court was not only bound to accept as literally true each item of testimony that was introduced, but was denied the right to determine what weight should be given to the various circumstances in evidence. The very fact that the statute provides that the burden of proof shall be on the party complaining of the order evidences legislative intent that the court should determine whether the burden of proof had been met, and this cannot be done without weighing the evidence and passing on the credibility of the witnesses.

In the case of Railroad Commission v. Houston & T. C. R. R. Co., 90 Texas 340 , 38 S. W. 750, 756 , the Court had under consideration statutes which authorized a suit in the district court to test the validity of any order of the Railroad Commission fixing freight rates. The statute was very much like the one here under consideration. It provided as follows:

“Article 4566. In all trials under the foregoing article the burden of proof shall rest upon the plaintiff, who must show by clear and satisfactory evidence that the rates, regulation, order, classification, act or charges complained of are unreasonable and unjust to it or them.”

After referring to the fact that under the statutes in question a suit could be maintained to test the validity of the order of the Railroad Commission, either on the ground that it was confiscatory or was unreasonable or unjust, the court said: “In

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deed, the conferring of that jurisdiction upon the courts of itself imposed

the duty to- try the cwse by the ordinary rules of procedure,

unless otherwise provided.” (Italics mine.) I cannot 'distinguish that case from the case here under consideration.

It would certainly put the trial judge in a strait jacket if he were required to pass on the issue as to whether or not the contestant had met the burden of proof, but was not permitted to pass on the credibility of the witnesses nor the weight to be given to their testimony. Moreover, upon the trial of such a case, as soon as a single witness testified to facts which would sustain the permit, it would become useless for the court to proceed further, for, regardless of the evidence to the contrary, the court would be powerless to do otherwise than to sustain the permit. There is no provision in the Act here under consideration which requires any such construction. The trial court in this case passed on the credibility of the witnesses and the weight to be given to their .testimony and has determined that the contestants have met the burden of proof.

But if the Act in question had undertaken to confer upon the Commission the power to determine the facts, it would be unconstitutional and void. Our Constitution carefully divides the powers of government into three departments — the executive, legislative, and judicial — and further provides: “and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instance herein expressly permitted.” Under the above provision of the Constitution the Railroad Commission must belong either to the executive department or to the judicial department. It cannot belong to both of them. Undoubtedly it is a branch of the executive department. White v. Maverick County Water Control and Improvement District No. 1 (Com. App.), 35 S. W. (2d) 107 . Therefore it cannot perform judicial functions. It cannot adjudicate property rights. White v. Maverick County Water Control and Improvement District No. 1, supra; Board of Water Engineers v. McKnight, 111 Texas 82 , 229 S. W. 301 . The judicial power of this State is vested in the courts. Constitution, Art. V, Sec. 1. To the courts have been committed the power and responsibility of adjudicating the vested property rights of the people. These powers and responsibilities may not be resigned nor ceded away by the courts. Neither may they be alienated by the Legislature. Ex parte Ginnochio, 30 Texas Crim. App. 584, 18 S. W. 82 ; Burgess v. American Rio Grande Land and Irrigation Co. (Civ. App.), 295 S. W. 649 (writ refused) ; Whitham & Co. v. Hendrick (Civ. App.), 1 S. W. (2d) 907 (writ

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refused) ; 9 Tex. Jur. 454, 459. Fundamentally, it is the task of the courts to mete out justice in accordance with the statutes and the Constitution. This they cannot do if they are not permitted to pass on the credibility of the witnesses and the weight to be given to their testimony. They must be allowed to find the facts in the case.

Our Constitution contemplates that all questions of fact shall be tried out and determined in court and, if a jury is demanded, by a jury. Article V, Section 10, of the Constitution provides that “in the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury.” - In the case of Tolle v. Tolle, 101 Texas 33 , 104 S. W. 1049 , the Court had under consideration the question as to whether a party was entitled to have the facts determined by a jury in a probate proceeding in the district court. The Court there said:

“Section 10 of Article V of our Constitution provides that ‘in the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury; * * *.’ Language cannot be made more comprehensive than this. Hence if a probate proceeding is properly styled a ‘cause’ this section undoubtedly gives a right of trial by jury. Bouvier defines a. cause as ‘a suit or action. Any question civil or criminal contested before a court of justice.’ The questions in this case are certainly questions contested before a court. * * *

It is not a question of the nature of the contest, but merely is there a matter of fact for a jury to determine.”

(Italics mine.)

In the case of White v. White, 108 Texas 570 , 196 S. W. 508 , L. R. A. 1918A, 339, this Court considered the validity of a statute which undertook to confer upon a commission the right to determine the facts in a lunacy case. The Court in holding the Act void said:

“A trial by jury means something more than a hearing before a commission such as that prescribed by said Act. With us, in civil cases, it means a due and orderly trial before the statutory number of men, properly qualified for such jury service, impartial, residing within the jurisdiction of the court, drawn and selected according to statute, duly empaneled under the direction of a court of competent jurisdiction, and sworn to render an impartial verdict according to the law and the evidence, the hearing to be in the presence and under the supervision of a

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court duly authorized and empowered to rule on the evidence, and except in courts of justices of the peace, to charge on the law of the case, and to set aside the verdict if, in the opinion of the court, it is contrary to the law and the evidence.”

As previously pointed out, it was held in Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 , 40 S. Ct. 527 , 64 L. Ed. 908, 914 , that where vested property rights are involved, as they are in this case, the order of the Railroad Commission is void because in conflict with the due process clause, unless the statute permitted the court to determine all issues of fact upon its own independent judgment.

In the case of Dupree v. State, 102 Texas, 455 , 119 S. W. 301 , this Court held that a statute which gave the sheriff the authority to determine the extent of the damages to sequestered property was unconstitutional because it undertook to confer judicial powers upon the sheriff. See also American Mortgage Co. v. Samuell, 130 Texas 107 , 108 S. W. (2d) 193 , par. 2. If such a statute is void because it confers upon the sheriff, a member of the executive department, the power to find the facts as to the amount of damages, why is not a statute void which undertakes to confer upon the Railroad Commission, an administrative agency, the power to determine the issue of fact as to the amount of land owned or in good faith claimed by one of the parties when this issue of fact is decisive of the issue of confiscation?

In the case of Stockwell v. State, 110 Texas 550 , 221 S.W. (2d) 932 , 12 A. L. R. 1116, this Court held that a statute which purported to confer upon the Commission of Agriculture the exclusive authority to determine the fact issue as to whether or not plants were so diseased as to constitute a public nuisance was unconstitutional because it attempted to confer judicial functions upon an administrative agency.

The very moment that we grant to the Railroad Commission, an administrative agency, the right to pass on the credibility of the witnesses and the weight to be given to the evidence on the issue as to whether the landowner’s oil is being confiscated by reason of an order of the Railroad Commission, we destroy the right of trial by jury — a right that has made us a free people.

The question here involved was squarely presented and was determined contrary to the holding of the majority opinion in the following cases: Marrs v. Railroad Commission, 142 Texas

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293, 177 S. W. (2d) 941 ; Railroad Commission v. Shell Oil Co., 139 Texas 66 , 161 S. W. (2d) 1022 ; Railroad Commission v. Houston & T. C. Ry. Co., 90 Texas 340 , 38 S. W. 750 ; Lone Star Gas Co. v. State, 137 Texas 279 , 153 S. W. (2d) 681, 699 , par. 20; and Gulf, Colorado & Santa Fe Ry. Co. v. Railroad Commission, 102 Texas 338 , 113 S. W. 741 , 116 S. W. 795 . The holding is also contrary to the holding of this Court in Tolle v. Tolle, 101 Texas 33 , 104 S. W. 1049 ; White v. White, 108 Texas 570 , 196 S. W. 508 , L. R. A. 1918A, 339; and Stockwell v. State, supra, and the holding of the Supreme Court, of the United States in Crowell v. Benson, 285 U. S. 22, 60 , 52 S. Ct. 285 , 76 L. Ed. 598 , and Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 , 40 S. Ct. 527 , 64 L. Ed. 908, 914 .

As previously pointed out, the Federal decisions which' permit Bureaus to find the facts are applicable only when confiscation is not involved, and they are based upon statutes granting such rights. The majority opinion does not assert that the statute here involved confers upon the Commission the power to find the facts or to make its findings binding upon the court. It is not contended that there is any such statute in this State. In fact, the majority opinion on original hearing does not assert that there is a single logical reason for the rule followed by it. Its sole ground for so holding is found in the following language:

“The Supreme Court has heretofore decided the question before us, and but for the conflict our duty would be to follow the prior pronouncements of this court. In such a situation, it is not permissible for the present justices to decide the cases in accordance with their personal views of what the law should be.Our duty is to follow the pronouncements of our predecessors.”

The prior decision referred to is the case of Gulf Land Co. v. Atlantic Refining Co., 134 Texas 59 , 131 S. W. (2d) 72 . In that case the trial court set aside the permit granted by the Railroad Commission and the Supreme Court affirmed that judgment on the ground that it was

undisputed

that the applicant was receiving his fair share of the oil without a second well. There was no issue of fact to be determined by either the Railroad Commission or the court. The statement as to what the holding of the Court would be in a case where the evidence was in dispute — a case not then before the Court— was wholly unnecessary to that decision. Since the rendition of the decision in the Gulf Land Company case this' Court has held directly contrary to the dictum expressed therein in the following cases: Railroad Commission v. Shell Oil Co., Inc., 139 Texas 66 , 161 S. W. (2d)

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1022; Cook Drilling Co. v. Gulf Oil Corp., 139 Texas 80 , 161 S. W. (2d) 1035 ; Marrs v. Railroad Commission, 142 Texas 293 , 177 S. W. (2d) 941 ; and Corzelius v. Harrell, 143 Texas 509 , 186 S. W. (2d) 961 .

Moreover, the dictum expressed in the Gulf Land Company-case (and followed in the majority opinion) was based on the erroneous theory that the right to review an order of the Railroad Commission under an allegation of confiscation existed only by virtue of the statute, when in truth it exists by virtue of the Constitution and is in nowise dependent upon the existence of a statute. Crowell v. Benson, 285 U. S. 22, 60 , 52 S. St. 285, 76 L. Ed. 598 ; Ohio Valley Water Co. v. Ben Avon Borough, 253 U. S. 287 , 40 S. Ct. 527 , 64 L. Ed. 908, 914 ; Railroad Commission v. Houston & T. C. Ry. Co., 90 Texas 340 , 38 S. W. 750 ; Lone Star Gas Co. v. State, 137 Texas 279 , 153 S. W. (2d) 681, 699 , par 20; and Gulf, Colorado & Santa Fe Ry. Co. v. Railroad Commission, 102 Texas 338 , 113 S. W. 741 , 116 S. W. 795 .

Consequently the statements contained in the Gulf Land Company case, and now followed in the majority opinion, were not only dictum wholly unnecessary to that decision, but they were contrary to the well-established principles of law as theretofore announced by this Court and the Supreme Court of the United States. If the Court is to follow “the pronouncements of our predecessors” it should follow the latest expressions of this Court as contained in Railroad Commission v. Shell Oil Corp., 139 Texas 66 , 161 S. W. (2d) 1022 ; Cook Drilling Co. v. Gulf Oil Corp., 139 Texas 80 , 161 S. W. (2d) 1035 ; Marrs v. Railroad Commission, 142 Texas 293 , 177 S. W. (2d) 941 ; and Corzelius v. Harrell, 143 Texas 509 , 186 S. W. (2d) 961 , which are based on sound reason and sustained by ample precedents, instead of following the erroneous and unsound dictum contained in the Gulf Land Company case. I do not consider the opinion in the Gulf Land Company case binding upon this Court under the facts here involved, in view of the many holdings of this Court to the contrary where the question was directly involved.

The majority opinion cites the Shupee case (Shupee v. Railroad Commission, 123 Texas 521 , 73 S. W. (2d) 505 ) as authority for its holding. But that case nivolved no issue of confiscation of vested property rights. Shupee was seeking the privilege of using the public highways of the State in carrying on his business. He had no vested property right in the highways. No

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issue of confiscation was involved in that case. Therefore the two cases are entirely unlike.

In the opinion on motion for rehearing the majority, for the first time, undertake to give a reason (other than the precedent established by the erroneous dictum in the Gulf Land Company case) for their holding. Let’s examine the reasons given.

The Court cites Trimmier v. Carlton, 116 Texas 572 , 296 S. W. 1070 , and 11 Amer. Jur. 794 as authority for the proposition that since the Legislature may find facts relating to the necessity for and validity of a legislative act, it may delegate to an administrative agency the authority to find such facts under similar circumstances and to make rules thereunder which have the force of legislation, and when this is done ap resumption will arise in favor of the rule so adopted. This may be conceded, but it has no application here. In the first place, such a presumption is a rebuttable one and when the validity of the statute, rule, or regulation is attacked on the ground of confiiscation, ‘the Court will hear and weigh the evidence to see if the statute, rule, or regulation is confiscatory. Houston & T. C. Ry. Co. v. City of Dallas, 98 Texas 396, 415 , 84 S. W. 648, 653 , and authorities heretofore cited. In the second place, there is a vast difference between the presumption of the existence of facts justifying the enactment of legislation and the right of a citizen to a hearing in court on the facts when it is sought to enforce the legislation against the rights of the citizen. If the presumption in favor of the validity of an Act of the Legislature or a rule of an administrative agency forecloses all issues of fact both as to the validity of the Act or rule and the application thereof to the citizen, then a citizen could never test its validity, or application in court on the ground that it destroyed his constitutional rights. As said by Mr. Justice Holmes in Prentis v. Atlantic Coast Line, 211 U. S. 210, 228 , “Legislation cannot bolster itself up in that way.” The Legislature has the right to enact legislation and the legislation will be presumed prima facie to be valid, but when it is sought to apply the legislation to the rights of a particular individual, such individual has the right to trial in court on the issue as to whether, in its application, the Act confiscates his property or otherwise .destroys his constitutional rights. Certainly a member of the executive branch, whether it be a single individual or a commission, has no right to find facts affecting the private rights of individuals. Dupree v. State, 102 Texas 455 , 119 S. W. 301 , par. 11.

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As said by the Court in Henderson v. Miller (Civ. App.), 286 S. W. 501, 506 (writ refused), “It is manifest that neither the board of county school trustees, nor the state superintendent, nor the state board of education, is vested with any jurishdiction to determine the constitutionality of any statute, or the question whether or not any action by any board of school trustees is violative of constitutional rights. Authority to determine such questions is exclusively the function of the judiciary, and therefore the court did not err in overruling the exception to the jurisdiction of the trial court.”

The opinion also cites the case of William v. Castleman, 112 Texas, 193 , 247 S. W. 263 , relating to commissioners’ courts, as authority for the proposition that an administrative agency may find the facts and that its findings are not subject to review. It will be noted however, that the very case cited holds that a commissioners’ court, when acting within the powers conferred upon it, is a

“court

of general jurisdiction.” Morevor, the Supreme Court was there considering a collateral attack upon an order issued by the commisioners’ court in dividing the county into justice precincts, a matter which had been clearly committed to the discretion of the commissioners’ court — one of purely public interest in nowise involving the private property rights or other constitutional rights of an individual. If the case had been one in which the commissioners’ court was attempting to appropriate the land of an individual for use in building a public road it would be more nearly in point. But certainly under such circumstances no one would contend that a finding made by the commissioners’ court that the land belonged to the county would be binding upon the individual who was seeking to recover his land.

If the holding announced in the majority opinion is applicable to the rulings of every other board, bureau, and commission in this State. The effect will be to deprive the individual of the right to a trial by jury in all cases in which a board, bureau, or commission is involved, even though it affects his constitutional rights. I cannot subscribe to such a holding.

Opinion delivered November 27, 1946.