TEXAS ANTIQUITIES COMMITTEE et al., Appellants, v. DALLAS COUNTY COMMUNITY COLLEGE DISTRICT, Appellee, 554 S.W.2d 924

POPE, Justice. Dallas County Community College District filed this suit for injunction against the Texas Antiquities Committee and its members to set aside an order of the Committee denying a permit to demolish three buildings owned by the College District. The trial court rendered judgment for the College District, stating that in its judgment

section 6 of the Antiquities Code is both unconstitutional and unconstitutionally applied. This court has jurisdiction by direct appeal. Tex.Rev.Civ.Stat.Ann. art. 1738a (1962); Tex.R.Civ.P. 499a. Dallas County Community College District came into existence in 1965 as authorized by

section 130.005 of the Texas Education Code. Its Board of .Trustees “constitutes a body corporate” which may “acquire and hold real and personal property, sue and be sued,” and has “the exclusive power to manage” the College District’s affairs. Tex.Educ.Code Ann. § 23.26. Acting under its legislative authorization, the College District in 1966 purchased land in downtown Dallas on which there were four buildings; the cost of the purchase was 2,150,000 dollars. The City of Dallas permitted temporary limited use of the three older buildings upon assurance that they would be demolished within three to five years.

Plans for the demolition of the three older buildings were announced to the public as early as 1969. The Board of Trustees of the College met in 1972 and voted to restore the one building that was structurally sound and to demolish the three older buildings so the space could be used for new college facilities. The Board met on April 1,1975, to consider demolition bids, but a group of citizens requested a ten-day delay during which time the group hoped to find funds for rebuilding the three buildings which were set for demolition.

The group was unsuccessful in finding any funds, but it reported to the Board that on April 8 the buildings had been placed on the National Register of Historical Buildings. No prior notification was given the College District that an expedited application was being made for inclusion of the buildings in the National Register. After the College District purchased the land and buildings in 1969 and made its plans for the College’s efficient use of the land, the legislature enacted the Antiquities Code. Tex.Rev.Civ.Stat.Ann. art. 6145-9 (1969).

The Antiquities Code provided for an Antiquities Committee consisting of seven members. Tex.Rev.Civ.Stat.Ann. art. 6145-9, § 3 (1969).

Section 4 of the Code gives the Antiquities Committee the authority “to determine the site of, and to designate, State Archeological Landmarks . .”

Section 10 proscribes any construction on any State Archeological Landmark without first obtaining a permit from the Antiquities Committee.

Section 10 is the only provision of the Code which in any way entitles the Committee to grant or deny a permit for the demolition of the buildings. The Antiquities Committee has not designated any of the three buildings at issue as State Archeological Landmarks, but the Committee has denied the College District’s request to demolish the buildings based upon the buildings’ expedited inclusion in the National Register of Historic Sites and Buildings.

The Antiquities Code does not give the Antiquities Committee authority over buildings in the National Register; instead, the Code only gives the Committee authority over buildings which the Committee has designated as a State Archeological Landmark. Since the Committee has not designated the buildings as State Archeological Landmarks, the College District does not need the Committee’s permission before demolishing the buildings. The trial court grounded its judgment upon two separately stated and separately numbered adjudications:

Section 6,

Article 6145 — 9, V.T.C.S., reading as follows: Sec. 6.

All other sites, objects, buildings, artifacts, implements, and locations of historical, archeological, scientific, or educational interest, including but expressly not limited to, those pertaining to prehistoric and historical American Indian or aboriginal campsites, dwellings, and habitation sites, their artifacts and implements of culture, as well as archeological sites of every character that are located in, on or under the surface of any lands belonging to the State of Texas or by any county, city or political subdivision of the state are hereby declared to be State Archeological Landmarks and are the sole property of the State of Texas and all such sites or items located on private lands within the State of Texas in areas that have been designated as a “State Archeological Landmark” as hereinafter provided, may not be taken, altered, damaged, destroyed, salvaged, or excavated without a permit from, or in violation of the terms of such permit of, the Antiquities Committee, is unconstitutional and void, and the orders of the Defendants based thereon are unconstitutional and invalid. 2.

Plaintiff need not obtain a permit from the Defendants before demolishing the three buildings in question situated on Plaintiff’s El Centro Campus in the City of Dallas, Dallas County, Texas, and bounded by Elm, Austin, Main and Lamar Streets in said city; and the application of the Texas Antiquities Act,

Article 6145-9, to these buildings is unconstitutional as applied. We affirm the trial court judgment and will now examine each of its separate adjudications. UNCONSTITUTIONALLY VAGUE STATUTE The first basis of the trial court’s judgment was that

section 6 of the Antiquities Code, stated above, was unconstitutionally vague. There has been no contention that the three buildings in question possess archeological, scientific, or educational interest. The Antiquities Committee only contends that the buildings are of “historical interest.” The sole basis for the exercise of the Antiquities Committee’s power over the three buildings is found, if it can be found, in these words of the statute: Sec. 6. All . . . buildings . and locations of historical ... interest. The Antiquities Committee, although it has the power, by

article 6145-9,

section 11, has adopted no rules or standards which state criteria for “buildings . . . and locations of historical . . . interest.” The Antiquities Committee does not contend that

section 6 gives any predictable standard or safeguard. Its position is that the law which strikes down statutes because they are vague, overbroad, and uncertain should be overruled. It argues that the power of the legislature to delegate its powers to state boards and commissions should be unlimited so long as there are experts who constitute the membership of the Committee. There has been called to our attention no case in Texas or elsewhere in which the powers of a state board are more vaguely expressed or less predictable than those permitted by the phrase in question.

The word “buildings” comprehends all structures; “historical” includes all of the past; “interest” ranges broadly from public to private concerns and embraces fads and ephemeral fascinations. All unrestorable structures ordinarily hold some nostalgic tug upon someone and may all qualify as “buildings . . . of historical . . . interest.” Upon the basis of the statute now before us, we are unconvinced that we should renounce the settled law of Texas that the legislature may not delegate its powers without providing some criteria or safeguards.

Depending upon the nature of the power, the agency, and the subject matter, varying degrees of specific standards have been required in testing the reasonable breadth of statutes. 1 Sutherland, Statutory Construction, § 4.05 (4th ed. 1975); Jordan v. State Board of Insurance, 160 Tex. 506, 334 S.W.2d 278 (1960). Sound reasons support the rule that some reasonable standard is essential to the constitutionality of statutory delegations of powers to state boards and commissions. Vague laws offend several important values.

First, because we assume that man is free to steer between lawful and unlawful conduct, we insist that laws give the person of ordinary intelligence a reasonable opportunity to know what is prohibited, so that he may act accordingly. Vague laws may trap the innocent by not providing fair warning. [Footnote omitted.] Second, if arbitrary or discriminatory enforcement is to be prevented, laws must provide explicit standards to those who apply them.

A vague law impermis-sibly delegates basic policy matters to policemen, judges, and juries for resolution on ad hoc and subjective basis, with the attended dangers of arbitrary and discriminatory applications. Grayned v. City of Rockford, 408 U.S. 104, 108-109, 92 S.Ct. 2294, 2298-2299, 33 L.Ed.2d 222 (1972). We adhere to the settled principle that statutory delegations of power may not be accomplished by language so broad and vague that persons “of common intelligence must necessarily guess at its meaning and differ as to its application.” Connally v.

General Construction Co., 269 U.S. 385, 46 S.Ct. 126, 70 L.Ed. 322 (1926). We are not persuaded that we should overrule or disapprove such cases as Key Western Life Ins. Co. v. State Board of Insurance, 163 Tex. 11, 350 S.W.2d 839 (1961); Lone Star Gas Co. v. Kelly, 140 Tex. 15, 165 S.W.2d 446 (1942); Housing Authority of City of Dallas v. Higginbotham, 135 Tex. 158, 143 S.W.2d 79 (1940); Martinez v. Texas State Board of Medical Examiners, 476 S.W.2d 400 (Tex.Civ.App.1972, writ ref’d n.r.e.), appeal dism., 409 U.S. 1020, 93 S.Ct. 463, 34 L.Ed.2d 312; Commissioners Court of Lubbock County v.

Martin, 471 S.W.2d 100, 105 (Tex.Civ.App.1971, writ ref’d n.r.e.); E.S.G. v. State, 447 S.W.2d 225 (Tex.Civ.App.1969, writ ref’d n.r.e.). Professor Davis concludes that the non-delegation doctrine in federal courts has been less than successful, but he would not abolish all standards. Davis, Administrative Law. Treatise, § 2.16 (1st ed. 1970). Instead, he would substitute administrative standards in the form of published rules and regulations for statutory standards. See Trapp v. Shell Oil Co., 145 Tex. 323, 198 S.W.2d 424 (1947).

We have, in this case, no standard or criteria either by statute or rule which affords safeguards for the affected parties. Unconstitutional Application The second basis for the trial court’s judgment is that “the application of the Texas Antiquities Act,

Article 6145-9, to these buildings is unconstitutional as applied.” We agree with this conclusion. Since the Antiquities Committee is a state agency, the Antiquities Committee’s application of

section 6 of the Antiquities Code must be judged by the substantial evidence rule. Railroad Commission v. Shupee, 57 S.W.2d 295 (Tex.Civ.App.1933), aff’d, 123 Tex. 521, 73 S.W.2d 505 (1934). The substantial evidence rule demands that we hold

section 6 unconstitutional as applied if the evidence is such that reasonable minds could not have reached the conclusion that the Antiquities Committee must have reached in order to justify its actions. Trapp v. Shell Oil Co., supra; [Railroad Comm.] TremCarr v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942). We hold that there is no substantial evidence in support of the action of the Antiquities Committee. There are two reasons for this conclusion.

This first one is. that a program to restore the buildings would compel the misuse of public funds that were obtained by approving a bond issue for educational purposes. The college delayed its contract for demolition so that those seeking to save the buildings might come forward with funds necessary to do so. If those funds had been available, the public school money would not have been needed. No source of funds for salvage and restoration is suggested by any of the witnesses, other than the school funds. The school funds were already dedicated and allocated to the College District’s educational purposes.

The testimony shows that the large sums of money required to restore the buildings would exhaust the College funds essential to its authorized educational purposes. Restoration of the buildings would also require the reconstruction of five times more space than is needed for educational purposes. The Antiquities Committee recognized this fact. A witness for the Committee stated that funds might be granted by the National Park Service provided the buildings are usable, but not if they are simply restored to be exhibited as old buildings.

An architect testifying for the Committee expressed the opinion that “the only source I know of for the money would be . the Community College . .” The President of the College said that the public would be considerably upset if it thought there was a possibility of diverting school funds to the restoration for non-educational purposes.

Upon the basis of this kind of evidence from both those who favored and opposed the restoration of the buildings, the trial court quite properly concluded that the Act was unconstitutionally applied to a situation in which property and funds committed to a public trust for the benefit of the people in the school district would be arbitrarily diverted to a wholly different purpose. The second reason for our decision is that the buildings are incapable of restoration except upon an unreasonable expenditure of money.

The inferior materials used in the original construction of the buildings requires complete reconstruction from the foundation up and at a cost greater than original new construction. The engineering and architectural evidence is that the only way to bring the buildings up to code standards or to save them is to rebuild them. Even the foundations would have to be rebuilt. The cost of rebuilding all three buildings would be in excess of 10,500,000 dollars. There is danger of collapse of the outside walls if reconstruction is undertaken.

Estimates for the cost of reconstruction range from thirty-five dollars to eighty-one dollars per square foot. One witness for the Antiquities Committee said that anything can be built if you construct a building out of money, but the reconstruction would cost more than new construction. He stated that the diversion of the College District’s funds from education to-the preservation of the three buildings presented an unsolvable conflict.

Another witness for the Antiquities Committee suggested that the solution to the construction problem was to gut the buildings, use the facades as curtain walls, and put a new structural frame inside. Sandstone and brick have been falling from the buildings since 1967. Both the sandstone and the windowsills have now been purposely chiseled away from the outside of the buildings to avoid their falling on people in the streets below. Of three hundred core samples taken from the building, all came out as dust, chips, or loose bricks.

The buildings have already outlasted by more than forty years the time for which they were designed. The exterior walls support the floor load. One building, eight stories high, uses wood columns. All three buildings are at least nine times below the code requirements. The only use for the buildings suggested by the Antiquities Committee, even after the costly rebuilding would be as commercial office space. The buildings cannot be made usable for educational purposes. Classrooms with many occupants, books, and furniture would impose weight loads that the buildings could not bear even if restored.

If usable as commercial rented space, there would be a continuing financial burden to the College District. For example, one building could be restored at a cost of 6,000,000 dollars and then rented for commercial purposes with a maximum return of no more than 2.98 percent. But leasing for business purposes would be difficult because the commercial offices would be in the midst of an inappropriate academic community. That part of downtown Dallas already has an eighteen to twenty percent vacancy rate for its buildings.

From this record, there is no substantial evidence that the buildings, even after reconstruction and renovation could be usable for educational purposes. The Antiquities Committee confronts the trial court’s judgment with the contention that the College District, as a political subdivision of the state is subordinate to the powers of the Antiquities Committee; has no contract or property rights which are protectable against the Committee’s superi- or powers. We need not in this case, decide which of two state agencies is charged with the “higher” trust.

In this case that question would cast the educational needs of the state’s citizens against the preservation of the 1910 buildings described above. The Committee, relying upon the language of Hunter v. Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907), argues that “the State is supreme, and its legislative body . may do as it will, unrestrained by any provision of the Constitution of the United States.” That expression of statism satisfies neither the protections of the United States Constitution or the Texas Constitution.

The United States Supreme Court has closely restricted Hunter’s broad and loose language in Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960). Justice Frankfurter, writing for the court in Gomillion, circumscribed its dicta by an analysis of the matters before the court in Hunter and wrote: In short, the cases that have come before this Court regarding legislation by States dealing with their political subdivisions fall into two classes: (1) those in which it is claimed that the State, by virtue of the prohibition against impairment of the obligation of contract (Art.

I, § 10) and of the Due Process Clause of the Fourteenth Amendment, is without power to extinguish, or alter the boundaries of, an existing municipality; and (2) in which it is claimed that the State has no power to change the identity of a municipality whereby citizens of a pre-ex-isting municipality suffer serious economic disadvantage. 364 U.S. 342-343, 81 S.Ct. 128.

In a society when so many rights are subject to the regulation of administrative agencies, Gomillion brought the “plenary power” doctrine of Hunter under appropriate limitations, stating: a correct reading of the seemingly unconfined dicta of Hunter and kindred cases is not that the State has plenary power to manipulate in every conceivable way, for every conceivable purpose, the affairs of its municipal corporations, but rather that the State’s authority is unrestrained by the particular prohibitions of the Constitution considered in those cases. The Texas law has developed in a similar fashion.

One agency of the state does not possess powers to divest vested property and contract rights of another state agency “unrestrained by the particular prohibitions of the Constitütion.” In Milam County v. Bateman, 54 Tex. 163 (1880), the legislature granted land to the county for public school purposes. Subsequently, the legislature took this land from the county and transferred it to private individuals. This court held that the legislature could not do this.

The legislature’s extensive control over its subdivisions’ political rights was recognized, but it was held that a subdivision’s property rights, “are protected by the same constitutional guarantees which shield the property of individuals.” 54 Tex. at 166. Milam County went on to state that, “the purpose for which the property was originally acquired shall, as far as circumstances will admit, be kept in view; and that it shall not arbitrarily be diverted as in the case before us, to private parties and to a wholly different purpose.” 54 Tex. at 166. Love v.

City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931) faced the issue whether the legislature had plenary power over a school district’s property and functions. The question in Love was whether a school district must, as the legislature had enacted, use its funds to educate non-residents of the local district. Writing for the court, Chief Justice Cureton rejected the idea that the legislature has plenary powers over its creature when the school district holds its property as trustee for the public. This court held, instead, that the school district’s property must be used for the purposes for which it was acquired.

This court stated that the school district: has no contract right to exist as a corporation, but the public that it represents has a vested right in the municipal property acquired for its benefit, and is entitled to demand that such property be applied to its uses. 40 S.W.2d at 27.

Love cited with approval the principle enunciated in 24 Ruling Case Law, Schools §§ 45-47 (1919), that school funds and property are trust funds for educational purposes; consequently, they should not: be diverted to other even though closely kindred uses, no matter how meritorious the project may appear to be either in its practical or ethical or sentimental aspects. Even the legislature, itself, the fountain head of matters educational, cannot divert school funds to other uses. 40 S.W.2d at 27. Since the Antiquities Committee’s application of

section 6 diverts the buildings to uses other than educational purposes, Love demands that we hold

section 6 unconstitutional as applied. On the basis of the trial court’s findings that

section 6 of the Antiquities Code is both unconstitutional and unconstitutionally applied, we affirm the trial court judgment. GREENHILL, C. J., concurs with an opinion. DENTON, J., dissents in an opinion in which DANIEL, JOHNSON and YAR-BROUGH, JJ., join. . Sec. 10.

The Antiquities Committee shall be authorized to issue permits to other state agencies or institutions and to qualified private institutions, companies, or individuals for the taking, salvaging, excavating, restoring, or the conducting of scientific or educational studies at, in, or on State Archeological Landmarks as in the opinion of the Antiquities Committee would be in the best interest of the State of Texas. Such permits may provide for the retaining by the permittee of a portion of any recovery as set out for contracting parties under

Section 9 hereof. Such permit shall provide for the termination of any rights in the permittee thereunder upon the violation of any of the terms thereof and to be drafted in compliance with forms approved by the Attorney General. All such permits shall specifically provide for the location, nature of the activity, and time period covered thereby. No person, firm, or corporation shall conduct any such operations on any State Archeological Landmark herein described without first obtaining and having in his or its possession such permit at the site of such operation, or conduct such operations in violation of the provisions of such permit.