(concurring).—The embarrassment in the proper disposition of the important questions arising in this case, is greatly increased by want of unanimity of opinion in all the members of the court.
I concur in the decision that the statute under consideration is constitutional, at least to the extent of the principal object intended by the Legislature—the creation of a commission of arbitration and award.
The question whether, under our Constitution, a new court could be created having coordinate powers with the Supreme Court, does not arise in this case, and no opinion is intended to be indicated on this question, though under a Constitution not very dissimilar to ours, the Supreme Court of Appeals of Virginia held that the Legislature had the constitutional power to create such a court. (Sharpe v. Robertson, 5 Grat., 518.)
In our opinion, the commission provided by the statute, though having many of the attributes, is not technically a court, as it lacks at least two essential ingredients—a certain fixed.jurisdiction, none being given except by the express consent of both parties, and the power to enter up or enforce its awards as judgments. It is more properly, what it purports to be, a commission of arbitration and award.
Independently of the implied power of the Legislature to pass laws for this mode of settlement of controversies, our Constitution gives it in express terms.
Although at common law arbitrators were unofficial persons selected by the parties, we think it in the power of the Legislature to provide for statutory arbitrators, to be selected from a class learned in the law, and that, in their proceedings, *37they shall be governed by certain rules and regulations; and it certainly should be no objection that such as usually obtain in the practice of the courts, and which have been found by experience to promote the ends of justice and the dispatch of business, have been provided.
The commission under consideration is not an arbitrary one, to which litigants are forced to submit their matters of difference, but one which can act only by the express consent of the parties. This express consent gives validity and vitality to the statute.
We cannot perceive any substantial difference between such a judgment and that of other agreed judgments, which it is a common practice to enter in this court; neither can we perceive why, on principle, even after appeal, a question of law or of mixed law and fact cannot, by express consent, be submitted to arbitration, as well as a simple question of fact.
That questions of both law and fact may be submitted to arbitration, is the practical effect, at least, of the arbitration and awards provided by statute for inferior courts and at common lawr; and such aw'ards, under the statute and at common law, when made under a rule of court, are, as is provided by the statute in question, enforced by the judgment of the court having jurisdiction of the case.
The provision in the statute, that the award shall be made the judgment of this court, without the further provision that it shall be subject to its approval, may give occasion to embarrassment should the commission return an award which might be either without the jurisdiction of the court or the issues as made by the record. Should such a contingency arise, it will have to be met and disposed of as will best comport with the just rights of the citizen and the duty and dignity of the court. But the bare possibility of such a conflict is not, in our opinion, sufficient to defeat the principal object sought by the statute—the speedy administration of justice by the submission of matters of difference to arbitration, and particularly as the aw’ard, if not authorized by the law or the case as made *38by the parties, might, under well-established principles, be held not binding.
That provision of the law which prohibits the publication of the opinions of the commission, and declares that they shall have no force or eifeci as authority or precedent, but shall be the law of the particular case only, will prevent conflict in the decisions of the court of last resort. And should there be error in the award, it is but the judgment of that case as agreed upon by the parties themselves.
Statutes nearly similar in the State of Tennessee have received the implied sanction of the Supreme Court of that State by having been acted upon by it.
It has ever been the policy of Texas to settle matters of difference by conciliation and award, as shown by provisions in her several Constitutions, by an act of her very first Legislature, and by repeated decisions of this court.
The statute was passed to remove a great and growing evil, and although it should not be upheld on the plea of necessity, if unconstitutional, yet this should demand for it a careful and anxious consideration.
It was said by Chief Justice Marshall, in Fletcher v. Peck, G Crunch, 128, that, to authorize a court to declare a law unconstitutional, “ the opposition between the Constitution and the law should be such that the judge feels a clear and strong conviction of their incompatibility with each other.”
Although the statute under consideration is very far from what we would have'asked or expected, yet I have not such a clear and strong conviction of its invalidity as to declare it unconstitutional, and feel it my duty to give my doubts in favor of the action of the Legislature, and which has received the sanction and approval of the Executive.