dissenting.
I respectfully dissent. Four of my brothers hold that section six of the Antiquities Code is too vague, so it violates the Due Process Clause of both the State and Federal Constitutions. I disagree; the College District does not have standing to assert deprivation of property without due process, and under what I perceive as the proper scope of review in this case there exists no justiciable controversy.
My first disagreement with the plurality is in the application of. the Fourteenth Amendment and Art. I, § 19 of the Texas Constitution:
nor shall any State deprive any person of life, liberty, or property, without due process of law . ...
U.S.Const. Amend. XIV, § 1.
No citizen of this State shall be deprived of . . . property . . . except by due course of law .
Tex.Const. Art. I, § 19. Essential to a holding that the College District has not been afforded due process is a holding that the District is a person, or a citizen. There exists no authority to support the holding, implicit in the plurality opinion, that the College District is a “person,” and I can think of no rationale for such a holding.
The College District is a body politic, or political subdivision of the State of Texas, created pursuant to the legislative authority of article 2815h of the civil statutes. The College District is authorized to levy taxes, acquire title in its own name to real and personal property, and generally to administer such property for educational purposes. It is not given the right to vote, the freedoms of speech, press, and religion, the right to counsel, or any other right enjoyed by people under the Constitution. This is because a political subdivision is not now and never has been a “person” in any sense of the term. It was early established by this Court that a public political subdivision is merely an agent of the State in the *932administration of its power. In Bass v. Fontelroy, 11 Tex. 698 (1854) the Legislature had repealed the charter of the City of Brownsville; the repeal was challenged as an unlawful taking of vested property rights without just compensation. Justice Lipscomb, denying the City’s claim, stated that:
The establishment of counties, their boundaries, courthouses, jails, bridges, ferries, are all matters of public policy, dependent on the legislative will for their creation; and . . . are equally dependent upon the same for their continued existence.
11 Tex. at 705. And in Guadalupe County v. Wilson County, 58 Tex. 228 (1882), the Legislature in creating Guadalupe County had taken portions of Wilson County without compensation. The ensuing boundary dispute was held a political question, resolved beyond judicial interference by the Act creating Guadalupe County and defining its boundaries to the exclusion of Wilson County. The agency concept of municipal corporation law was specifically relied upon in City of Victoria v. Victoria County, 100 Tex. 438, 101 S.W. 190 (1907), where this Court, in upholding a legislative transfer of title from the county to the city stated:
The principle is that insofar as a corporation strictly municipal or quasi-municipal holds property for the purposes of government, it holds merely as a governmental agency, and it is within the power of the Legislature of the State to confer that agency upon some other proper governmental instrumentality.
100 Tex. at 451, 101 S.W. at 196. See also, Herget, The Missing Power of Local Government, 62 Va.L.Rev. 999 (1976).
Decisions of the United States Supreme Court establish that political subdivisions, as agencies of the State in the exercise of governmental powers, have no rights assertible under the Federal Constitution against the State. The famous case of Trustees of Dartmouth College v. Woodward, 17 U.S. (4 Wheat.) 518, 4 L.Ed. 629 (1819), established that public corporations, as distinguished from private business corporations, enjoy no protection assertible under the contract clause of the Federal Constitution against legislative alteration of organic charters. See Campbell, John Marshall, The Virginia Political Economy, and the Dartmouth College Decision, 19 Am.J.Legal Hist. 40 (1975). Cases following Dartmouth College have reiterated that the charter of a political subdivision, being a mere delegation of State authority, is subject to alteration or revocation at the will of the Legislature. Hunter v. City of Pittsburgh, 207 U.S. 161, 28 S.Ct. 40, 52 L.Ed. 151 (1907); Covington v. Kentucky, 173 U.S. 231, 19 S.Ct. 383, 43 L.Ed. 679 (1899); Meriwether v. Garrett, 102 U.S. 472, 26 L.Ed. 197 (1880); East Hartford v. Hartford Bridge Co., 51 U.S. (10 How.) 511, 13 L.Ed. 518 (1850). A municipality thus was denied the power to assert denial of due process of law in City of Trenton v. New Jersey, 262 U.S. 182, 43 S.Ct. 534, 67 L.Ed. 937 (1923). And Mr. Justice Cardozo in Williams v. Mayor of Baltimore, 289 U.S. 36, 53 S.Ct. 431, 77 L.Ed. 1015 (1933) made it clear that no protection is offered a political subdivision by the Fourteenth Amendment. To the Supreme Court, a political subdivision simply is not a person; and is not, therefore, entitled to due process. See Schulz, The Effect of the Contract Clause and the Fourteenth Amendment upon the Power of the States to Control Municipal Corporations, 36 Mich.L.Rev. 385 (1938).
The plurality cites Gomillion v. Lightfoot, 364 U.S. 339, 81 S.Ct. 125, 5 L.Ed.2d 110 (1960) as providing the necessary exception to the rule. In that case voters, that is People of Tuskeegee, Alabama argued that a legislative redistricting of the city deprived them of the voting rights under the Fifteenth Amendment. There were no “rights” of the city, a political subdivision, before the Court. The plurality quote the following from the Gomillion opinion:
[A] correct reading of the seemingly unconfined dicta of Hunter and kindred cases is . that the State's authority is unrestrained by the particular prohibitions of the Constitution considered in those cases.
*933364 U.S. at 344, 81 S.Ct. at 128 (emphasis mine). As stated above, City of Trenton v. New Jersey and Williams v. Mayor of Baltimore, supra, two of “those cases” referred to in Gomillion, involved claims under the Fourteenth Amendment. To reiterate, Gomillion involved the rights of private persons ; it has no application to the controversy at hand. The plurality cite no case in which a political subdivision has been held entitled to due process and there is none.
This Court has, on two occasions, enunciated the proper scope of judicial review over legislative control of political subdivisions. Far from holding that political subdivisions are entitled to due process of law, this Court has stated that the only protection is against arbitrary diversion of property held by political subdivisions in such a fashion that the public would be deprived of the use of such property. The only judicial question is arbitrariness vel non of the legislative action.
In Milam County v. Bateman, 54 Tex. 163 (1880), the Court commented:
Counties in their relation toward the state may be viewed in a two-fold aspect: one, which pertains to their political rights and privileges; the other, to their rights of property.
54 Tex. at 165. Concerning “political rights and privileges,” including the right of organic existence, the Court noted that a county has no assertible rights against the State; the latter was said to be in complete control. Different considerations were deemed applicable as to “rights of property.”
A different principle, however, obtains as regards the rights of counties to property which they may acquire.
If given for a specific object, the state may very properly, as in the instance under consideration of our school lands granted to counties, exercise such supervision and control over the actions of the counties as to compel the proper execution of the trust, or prevent its being defeated; but it is believed that this control, unless by consent of the county, should be subject to the restriction, 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 to private parties and to a wholly different purpose.
54 Tex. at 165-66 (emphasis mine).
The quoted portions of the Milam County opinion were genesis to this Court’s consideration of legislative power in Love v. City of Dallas, 120 Tex. 351, 40 S.W.2d 20 (1931). In Love the Court was concerned with whether the Legislature could impose upon the City the obligation to employ City funds for the education of nonresident children. It was determined that such an imposition would violate Tex.Const. Art. VII, § 3, in that it would divert special school funds.* In spite of such holding the Court went on to discuss the legislative power over its subdivisions in general:
The rule is that the ownership of [local government] property is in the local district or municipality for the benefit of the public, within the boundaries of the district or municipality. The Legislature may control or dispose of the property without the consent of the local bodies, so long as it does not apply it in contravention of the trust.
120 Tex. at 367, 40 S.W.2d at 27 (emphasis mine).
The limitations upon legislative power in Milam County and Love are founded upon sound reason. Local government property is, in principle and in fact, trust res conveniently held and managed by local officials for the benefit of the local public. Where, *934as here, such property has been acquired with governmental funds pursuant to specific approval of the local voting public, there arises special reason for enforcing the trust; justifiably, the public has a reliance interest in the disposition of property acquired for and devoted to a designated use. Milam County instructs the Legislature in its supervision of local government property to keep in view “the purpose for which the property was originally acquired,” and prohibits arbitrary diversion to a “wholly different purpose.” Love goes further to say that Legislative power over local government property is regulatory only; while the entity is subject to legislative destruction, the property held by that entity remains in the public trust. On the other hand, neither Milam County nor Love can be considered authority for the proposition that local government entities have judicial standing to challenge legislative regulation of property in the same manner or to the same degree as owners of private property. The judicial touchstone is arbitrariness. Management of property held in the public trust is a matter of legislative concern. Cf., Note, Proprietary Duties of the Federal Government Under the Public Land Trust, 75 Mich.L.Rev. 586, 592-94 (1977).
Turning now specifically to section six of the Antiquities Code, it becomes apparent to me that it effects no diversion of College District property in a manner prohibited by Milam County and Love. The mere fact that “State archeological landmarks” are declared to be the “sole property of the State” gives rise to no justiciable complaint on the part of the local government entity in which title was theretofore reposed. The interest protected by Milam County and Love is the public’s interest in use of the property, not the local entity’s interest in nominative title. Change in nominative title effects no change in use. The nominative title to public property is a patently political matter to which the words of Justice Bonner in Milam County are peculiarly applicable: “If [the State] could not exercise such power over the delegated political rights and privileges of . subdivisions of state governmental authority, we might have a system of petty discordant governments within a government, without unity of design or action.” 54 Tex. at 165. See also Chester County Institution District v. Commonwealth, 341 Pa. 49, 17 A.2d 212 (1941). And although the grant of power to the Antiquities Committee to prohibit or regulate alteration, damage or destruction of an “archeological landmark” indirectly might effectuate some change in a use, the legislative decision to vest power to make that change in a committee of seven experts cannot be considered arbitrary. It is as I have said, only arbitrary regulation of local government property which gives rise to a justiciable interest on the part of local government officials. In the instant case, the College District claims that the buildings cannot compatibly be used for both educational and cultural (historical preservation) purposes. It might indeed be a justifiable implication from the Antiquities Committee’s action that the educational function of the College District would be promoted rather than impaired by the requirement that the cultural integrity of school buildings be maintained. But making such an implication is not a judicial function. It is not the duty of the courts in a case of this nature to view structures, deemed by one State agency as culturally insignificant and by another as worthy of preservation, and decide which is in the right. This is especially true where the Legislature has granted the other the power to preserve without granting the one the right to question. Firemen’s & Policemen’s Civil Service Comm’n v. Kennedy, 514 S.W.2d 237 (Tex.1974). The Legislature, in section six of the Antiquities Code, has delegated authority to the Antiquities Committee to protect that which it deems worthy of protection. The Antiquities Committee is made a final checkpoint prior to possible effacement of property deemed by the Legislature to be of intangible value. The legislative decision that property held by its political subdivisions may not be altered when such alteration would efface the property’s historical integrity is not a decision with which the courts should interfere. If *935the plurality intends to hold, under Love v. City of Dallas that historical preservation is such a wholly incompatible use of property acquired for educational purposes so as to constitute an unlawful diversion of a public trust, it would be difficult to discern any situation in which historical preservation would not be antipathetic to the public trust. I can see no operative distinction between property acquired for educational purposes and property acquired for, say, a City Hall, a courthouse or a park. Indeed, such a holding is tantamount to a judicial declaration that no property held by a political subdivision can be protected under the legislative banner of historical preservation unless the property originally was acquired for its aesthetic characteristics, or unless the Legislature takes the property by exercise of eminent domain. I would hold that restriction of the use of College District property in order to protect that property's aesthetic integrity does not deprive the local public of the benefit of the property to the degree prohibited by Love and Milam County. In imposing a higher, general trust upon property held by political subdivisions in the public trust, the Legislature acted within its authority. When such is the case, the remedy lies in the legislative process, not in the courts. See Henkin, Is There a “Political Question” Doctrine ? 85 Yale L.J. 597 (1976). This is a dispute between different departments of the same branch of government. The “boss” of that branch, the Legislature, has decided that one department’s power exceeds the other’s. As long as no specific constitutional provision is violated, and absent arbitrary legislative action, the courts cannot and should not interfere with the manner in which the Legislature conducts its affairs.
I would not in this case reach the questions of vagueness discussed by four members of the Court. Such questions should, and will be raised at such time as this Court is faced with governmental interference with private property under the banner of historical preservation. But in reply I do point out that this Court very recently stated that the protection of cultural property may indeed be a duty of the Legislature. San Antonio Conservation Soc’y, Inc. v. City of San Antonio, 455 S.W.2d 743, 748 (1970). Not every historical structure worthy of protection can be an Alamo; vagueness in describing cultural property may to a degree be an inherent difficulty.
I would reverse the district court’s judgment and dissolve the injunction.
DANIEL, JOHNSON and YAR-BROUGH, JJ., join in this dissent.The Court stated:
Since the Constitution, art. 7, sec. 3, contemplates that districts shall be organized and taxes levied for the education of scholas-tics within the districts, it is obvious that the education of nonresident scholastics is not within their ordinary functions as quasi-municipal corporations; and under the authorities cited the Legislature is without power to impose such an obligation on them, without just compensation.
120 Tex. at 367, 40 S.W.2d at 27.