# Board of Water Engineers v. Colorado River Municipal Water District

> Texas Supreme Court · January 21, 1953 · 152 Tex. 77

URL: https://www.frixlaw.com/law-library/cases/9642428

## Case

- **Full name:** Board of Water Engineers of Texas Et Al v. Colorado River Municipal Water District Et Al.
- **Court:** Texas Supreme Court
- **Decided:** January 21, 1953
- **Citations:** 152 Tex. 77; 254 S.W.2d 369; 1953 Tex. LEXIS 429
- **Precedential status:** Published
- **Opinion:** Dissent by Smedley
- **Judges:** Hickman, Smedley
- **Cited by:** 32 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9642428

## How later opinions describe it (automated extraction)

- holding that seven-month delay in appealing administrative order creating water district was unreasonable

## Opinion text

Mr. Justice Smedley,
dissenting.
I cannot agree with the decision of the majority that this Court has jurisdiction of the case on direct appeal from the district court. In my opinion all of three reasons presented in support of appellee’s motion to dismiss the appeal are sound, although the third is foreclosed by the decision of the majority in Railroad Commission of Texas v. Sterling Oil & Refining Co., 147 Texas 547 , 218 S. W. 2d 415 , unless that decision on the question of jurisdiction is, as I think it should be, overruled.
The first ground of the motion to dismiss, briefly stated, is that the appeal is not from a judgment or order of the district court granting or denying an' injunction relating-to the validity or invalidity of an administrative order issued by a state board *85 or commission. This suit involves the validity of the order of the Board of Water Engineers of the State, which defined the boundaries of the Martin County Underground Water Conservation District No. 1, and it was that order of a state board that the trial court held to be invalid. No injunction was either granted or denied on the ground of the validity or invalidity of that order. The injunction sought and granted by the trial court’s judgment was against the enforcement of rules and regulations adopted by the Martin County Underground Water Conservation District No. 1, which is not a state board, commission or agency.
The language used in the amendment to the Constitution which authorizes direct appeals to this Court is that the Legislature may provide for such an appeal “from an order of any trial court granting or denying an interlocutory or permanent injunction * * * on the validity or invalidity of any administrative order issued by any state agency under any statute of this state.” Section 3b, Article V.
The injunction in this case was not granted on the invalidity of the order of the Board of Water Engineers. It was on the invalidity of the rules and regulations of the Martin County District.
The statute enacted pursuant to the amendment of the Constitution uses the same language as that contained in the amendment, adding a provision that the Supreme Court shall prescribe the necessary rules of procedure to be followed in perfecting such an appeal. Article 1738a, Vernon’s Annotated Civil Statutes.
Pursuant to the statute, the Court adopted Rule 499a, which contains as its Subsection (b) the following:
“An appeal to the Supreme Court directly from such a trial court may present only the constitutionality or unconstitutionality of a statute of this State, or the validity or invalidity of an administrative order issued by a state board or commission under a statute of this' State, when the same shall have arisen by reason of the order of a trial court granting or denying an interlocutory or permanent injunction.”
There is no substantial difference between the meaning of the constitutional amendment and the statute and that of the rule. The injunction must have been granted or denied on the ground of the validity or invalidity of the order of the state board or *86 agency, or the validity or the invalidity of the order of the state board must have arisen by reason of or must have been involved in the order granting or denying the injunction.
It was the purpose of the people in adopting the amendment to the Constitution and of the Legislature and this Court in enacting the statute and adopting the rule, both consistent with the amendment, to permit direct appeal to the Supreme Court, by-passing the courts of civil appeals, in order to give the parties quick relief when the district court has enjoined or refused to enjoin an order of a state board or commission on the ground of its validity or invalidity. The question of validity or invalidity of the order and the quick relief from the granting or denying of an injunction affecting the order were regarded by the people in adopting the amendment and by the Legislature in the enactment of the statute as being of sufficient importance to justify this radical departure from the established process of appeal. As expressed in appellees’ motion to dismiss the appeal: “Obviously, it is the injunctive relief coupled with, and bearing upon, the administrative order under attack which gives rise to the reasons for a direct appeal.”
There is no occasion for undertaking to harmonize the rule with the Constitution and the statute, or for suggesting that the rule adopted by the Court may be void. As has been said, they mean the same thing with respect to the validity or inavlidity of the order of the state board or agency and the order granting or denying the injunction. One of the briefs filed for the appellants admits that there is no substantial difference between the meaning of the wording of the Constitution and statute and that of the rule.
The opinion of the majority on this question will lead to the further enlargement of the jurisdiction of the Court by direct appeal. It will permit direct appeals provided only the validity or invalidity of the order of the state board or agency is involved, and provided only there has been granted or denied by the district court an injunction, whether relating to the validity or invalidity of the order or not. The right of direct appeal is narrowly defined in the Constitution and statute and in the rule, and it ought to be kept within narrow bounds. The Supreme Court is a court of limited jurisdiction, and it should remain so.
My conviction is even stronger that the opinion of the majority is erroneous in its decision that this case is governed by *87 the substantial evidence rule. Subdivision F of Section Be, Chapter 306, Acts Regular Session, 51st Legislature (1949) p. 563, which authorizes the filing of this suit attacking the order of the Board, provides:
“In all such trials the burden of proof shall be upon the party complaining of such law, rules, regulations or orders or act of the Board, and such law, rules, regulations or orders or act of the Board so complained of shall be deemed prima-facie valid but the trial shall be de novo, and the court shall determine independently all issues of fact and of lato with respect to the validity and reasonableness of the law, rules, regulations or1 orders or acts of the Board complained of.” (Emphasis added.)
The opinion of the majority, to sustain its holding that the substantial evidence rule applies here, cites Fire Department of the City of Fort Worth v. City of Fort Worth, 147 Texas 505 , 217 S. W. 2d 664 , and Jones v. Marsh, 148 Texas 362 , 224 S. W. 2d 198 . The Court, in holding in those two cases that the correctness of the order of the commission or the county judge should be tested by the application of the substantial evidence rule notwithstanding the fact that the statutes involved provided for trial de novo, was dangerously near engaging in judicial legislation. The opinion of the majority in this case goes beyond those decisions and enters well into the forbidden realm of judicial legislation.
The statute here under construction is different from the statutes construed in those cases. The statute involved in the City of Fort Worth case provided merely that “such case shall be tried de novo”, while the provision of the statute construed in Jones v. Marsh was “the trial shall be de novo under the same rules as in ordinary civil suits.” Neither of the statutes involved in those cases provided, as does the statute before us in this case, that “the trial shall be de novo and the court shall determine independently all issues of fact and of law with respect to the validity and reasonableness of the law * * * or orders * * * of the Board complained of.”
“De novo” alone strongly suggests that there shall be a trial anew, and when it is coupled with the other words above quoted to the effect that the court shall determine all issues of fact and of law independently, a construction that such language means and intends that there shall be a limited trial under the substantial evidence rule is a strained construction, and in my opinion unreasonable.
*88 A trial under the substantial evidence rule is in a sense a new trial, but it is a limited trial, not an unlimited, independent trial as is ordinarily conducted in district court. The substantial evidence rule is that the finding of the administrative body or agency will be sustained by the court if it is reasonably supported by substantial evidence, meaning evidence introduced in the court, it being for the court, not to determine the issues of fact independently and as if there had been no finding of fact by the administrative body or agency, but to determine merely whether the finding of the board or agency is reasonably supported by substantial evidence. Thus under the substantial evidence rule the facts are not tried independently of the finding made by the board or agency. In effect the order of the board is tried, and that not according to a preponderance of the evidence, but under the substantial evidence rule, which requires that the order be sustained if it is reasonably supported by evidence.
The opinion of the majority gives no effect to the words “determine independently”. Independently of what? Obviously, independently of what the board or agency found, as if there had been no finding- by the board or agency, save only that as a rule of evidence the order of the board or agency is to be deemed prima facie valid. The provision that the order of the board or agency shall be deemed prima facie valid does not mean that there shall not be an independent trial. This, because the words “deemed prima facie valid” are immediately followed by “but the trial shall be de novo and the court shall determine independently all issues of fact and of law.” The plain meaning of the statute is that the district court shall try the case de novo in the full sense of the term and “determine independently all issues of fact.”
The opinion of the majority is in contradiction of the intention of the Legislature as clearly manifested by the language used in the statute, with the result that trial under the substantial evidence rule is permitted and directed, and on that account the right of direct appeal to this Court is given under the majority decision in Railroad Commission of Texas v. Sterling Oil & Refining Company, 147 Texas 547 , 218 S. W. 2d 415 . In this way the jurisdiction of this Court on direct appeal is again extended by decision of the Court.
- Since, when the statute is correctly construed, the trial is not held under the substantial evidence rule, questions of fact *89 are involved, as is evidenced by the statement of facts herein, with respect to the reasonableness of the Board’s order, and this Court has no jurisdiction of questions of fact.
The third ground in the motion to dismiss the appeal suggests that the question of jurisdiction on direct appeal as decided in the Sterling Oil & Refining Company case, above cited, be again considered and that the decision there made be overruled. The dissenting opinion in that case sets out at length the reasons why the question of jurisdiction on direct appeal was erroneously decided, and they will not be repeated here. Attention is directed, however, to the first point made in the dissenting opinion, which is that the amendment to the Constitution authorized the Legislature to provide by law for direct appeals involving constitutional validity or invalidity of orders of commissions and boards, and not for direct appeals involving merely validity or invalidity in the factual basis of the orders. And attention is further directed to that part of the decision of the majority of the Court in the Sterling Oil & Refining Company case which, without assigning any reason for its action, permitted a statement of facts to be brought up and considered it in making the decision, contrary to the express provision of Rule 499a theretofore adopted by the Court.
The motion to dismiss the appeal should be granted.
Opinion delivered January 21, 1953.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9642428. Public record. Not legal advice.