Case Information

*1 L- -

Ron. John E. Taylor

Chief Supervisor

Railroad Ccnmnission of Texar;

Austin, Texas

Dear S&r: Opinion No. O-1943 _

Re: Power of Railroad kission to delegate to another the authority to sign one of its orders.

We hrrrre for aoknowladgment your letter of February 9, 1940, withdrawing the request for an opinion addressed to this office by your letter of February 6, 1940, and substituting in lieu thereof the following request:

"Cnthe 20th day of Deoember, 1939, the Railmad Com- mission of Texas duly signed and entered its ESPECIAL ORDER FIXIMGTRElLUllllBLE PRODUCTION OF.CRUDE OIIL lI8 THE VARIOUS FIFiLDS AND DISTRICTS IR TKM,' which *came effeotivp_-Jan- uary 1, 1940, md in general allocated the oil production in the State of Texas for the various fields and Districts in Texas as hereinabove set ,out. (h the 24th day of January, 1940, the Railroad Conmission duly signed and entered its -'SPECIAL ORDER FIXING THE AlL0XMI.E PRODUCTION OF CRUDE OIL XM l'R& VARIOUS FIELIxi ARD DISTRIS.'%Ili l%XAS,' whioh became bffeative February 1,,194Z, akd~in general allocated the oil produoti? in the 3tate,of Texas for the various fields and Distriots in Texas as hereinabove set out.

"The last mentioned Order has been in effeot since the first day of February, 1940, and is still ti foroe and effect. "First. In the.event the Railroad kmmission of Texas de- sirestoesoind its order o,f January 24, 1940, fixing the allolable ,produotion in the various fields of Texas for the month of February, 1940, oan 8mne be legally dome by an order of the Commission signed by swe person,authorised bymembers of the Commission to affix their signatures thereto.

Han, John E. Taylor, Page 2 (o-1943)

"Second. Should it b&h@@ -&'yoly lkpaetint that the cmty of the Commission can be legally delegated by the tidiwidual members of the Commission to 8ome other person to sign the order hereinabove referred to, thbn please advise whether or not as a basis for the delegation of such power it will be neoesaary for the Commission to hold a formal tikaring and vote suoh authority by a majori- ty thereof.

"Third. Should it be held by your Department that the Comnission has the power to delegate tha authority herein- above referred to, then please advise whether or not suoh authority may be conferred by the Ccnnmission by a majority vote of the Conmrission at a called meeting if such action 'is taken by the Collmission beyond the territorial limits of the State of Texas+

"Fourth. Should it be held by your Department that as generalproposition the Railroad Commission can delegate the authority here,inabove'teferred to, then pleabe advise whether or not the Commission could so act Pf;'sittiti i6-a place other that the City of Austin within the fkate of P exasr* .~ The Tiailroad Qmmisaion isva public board or oommissioa author- ired by the ODnatlt;ut&on ( 1010 16, Ssotion SCI), and created by stat- uti (Arts. 6444~644'7,'R&%25). Ita member.9 am oloarly State offiaarr to whan are confided not only authority of m~ewou~ive n&xm, but also authority of a quasi-judicial, quasi-lbgislature oharaotoi, involving the exercise of judgment and disaretion,whioh authority is to bo exer- oised and performed for and on behalf of the State of Texas-

The rule is quit. gensFally reoognizsd that publio offioers may not, in the absence of express authority, delegate to another the performance of an sot involving the exercise of judment and discretion; but may delegate, in the absence of express prohibition, the psrfonnanoe of aots which are purely mechanical or ministerial in character. 46 C. J. 1033.

The adoption and raoission of proration rules and orders by the Railroad Conanission involve, in the high*& degree, the exeroiss of judgment and ditloretion, for auoh orders,when lawfklly adopted and pranulgated by the Cummission, have the force and effect of law, pre- scribing rules of conduct which oonoern, not only the persons directly affected by the rule or order, but the wlfare of the State at kg*. The power, therefore, to determina~whether a prorat%onu.,ordsr shall ba reaoinded cannot be delegated, but must bs exeroised by the Gnmuission as auohe

FIon, Johz,E.. Taylor, Page 3 (O-1943)

FWthennors, it is not oon+smpIated that the members of the Conmission shall act in respect to matters involving the exe@.oe of judgment and disoretion as individuals, but as a board. When action -by the board on a matter involving the exercise of judgment and dis- oretipn isto be had, it is contemplated that a meeting of its members shall b had, at which meeting at least a quorlrm shall be present, in order that the question to ti determined may be freely discussed and - full opportu@i+.y afforded for a free exchange of ideas among the mem- bers, that the deoisioa finally reached by the Canmission will reflect the considered judgment and opinion of the Cammission as such, and not the several and independently formed visas of the individual members canposing the commission.

Rhere a duty or powerinvolving the exercise of judgment or discretion is entrusted to a bard or commission composed of differ- ant individuals, such board o@n act officially in respect to'~ths dis- char-p of that duty only as such, in oonvonsd seasion, with the memlwrs or a quorum thereof present. State ex rel Baria v. Alexander, 130 Sm. 754, 158 Miss. 557; State ex rel Mayer v. Sohuffenhauer, 250 N. W. 767, 213 Fiis. 29; State v. Kelly (New Max.) 202 Pac. 524, 21A.L.R. 156; McClellan, Hunicpal Corporations, Sec. 695; 22 R.C.L. 456; 46 C.J. 1034; 34 Tax. Jur. 457, and Texas oases cited; Mooham, Public Offloors, p. 376.

Moreover, the board is not at liberty to hold such a meeting for the determination of a question involving the exeroise of judgment and discretion at any place of its choosing. On the contrary, &tiole 6447, R.S. 1925, provides that "the ocnnaission may hold i5.s session at any plaoe within this state when deemed necessary." By dlear implica- tion, the statutory prevision denies to the conmission the authority to hold its meetings or sessions at a place outside of the tsriitorial limits of this State. Rhan the law confers upon a person pcwersthat he, as‘s natural person, does not possess, that power cannot accompany his person beyond the boundaries of the sovereignty whioh his conferredthe power. and although the Legislature may require or authorize oertain official aots to be done beyond the State's limits, such acts are dona by express authority or permission, and the power to perfonuthsm out- side the territorial jurisdiction of the State is not to be implied. Jacksonv. Hunzphrey, 1 Johns (N. Y.) 4981 McCullough v. Scott, 182 N.C. 865, 109 S.W* 789: Meoham, Public Officers, p. 332; 46 C. J. p. 1032.

It thus appears that (1) the Commission itself, as such, must determine the question whether a proration order shall be rssoindsd (2) at a meeting of its members, (3) which meeting must be held within the territorial limits of the State of Texas, (4) at which a quorum of the Commissionars are present, and (5) that th e exercise of this power can not be. delegated, but must be exercised by the Commissionas such. *4 Hon. John E. Taylor, Pago 4 (O-1943)

Whhen the decision of tb Commissionwith nspct to the adoption or recission of a proration order has been lawfully made by it, the signing of the order itself by the individual Commission- ers becomes a mere meohanioal orministorial aot,.whioh may %a dal- egated by the Conunissionars. Bee our opinion No. O-1607, attached heroto.

The selection of the person or persons to l xeroiso this power of signing ordstr for and at the instanaa and requsst of the individual ccawnissionars would seem to involve the reposing of special oonfidenoa and trust in the person seleoted, and to that extant the determirr*tion of the question involving the exercise of jud@ent and discretion in the s&action of such person or persons8 but it is a judgment or dison- tion to be exercised by the individual ooarmissioners in selecting the parsons who shall be authorized tn affix their respsotive signatures, and therefore not an act to be performed bythe board M suoh. Henoo no meeting of the board for this purpose is required, Aud, since the authority to dolegato tc another the mechanioal orminist~rial tinotion of signing his name ia a power or privilege;poasosssd by the commis- sioner as a natural person, that authority may b l xeroised by tha wm- missiknsr at a time when he ,is beyond the territorial limits of the state.

We trust that the foregoing sufficiently an?.wers the questions presented by you.

Yours v*rgr truly BY a/R. W. Fairohila R. W. Pairchild Assistalt RWF:P%:%w _-

4PmovBD FEB 9, N&O

s/Gerald C. km MTORWEYGEXE9ALOFTEXhS This Opinion Considered

and Approved in Limited Conferen