author: LEDDY, J. OURETON, O. J.

text:
    STATE ex rel. OIL OPERATORS’ TRUST et al. v. HELLMAN, Mayor, et al.
    No. 1253-5636.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.
    Ingrum & Smith, of San Antonio, and W. O. Davis, of Gainesville, for appellants.
    Edwin M. Fulton, of Longview, for appel-lees.
   LEDDY, J.

This was a quo warranto proceeding, brought in proper form, for the purpose, of determining the validity of the’ incorporation of the town of Muenster. It was tried before the court without the intervention of a jury and judgment rendered declaring the incorporation valid.

The honorable Court of Civil Appeals for the Second Supreme Judicial District has certified for the determination of the Supreme Court the following questions of law arising in the case:

“1. Was the evidence sufficient, as a matter of law, to show that the entire tract of 640 acres was incorporated by the village of Muenster as a town for strictly town purposes?
“2. Was the evidence sufficient, as a matter of law, to prove that the resolution of the town council, adopted on July 25, 1927, to incorporate as a city, was passed at a regular meeting of the town council, as required by article 961, Rev. Statutes?
“3. Was the evidence sufficient, as a matter of law, to prove that there were as many as 600 inhabitants of the town of Muenster at the time the resolution was adopted by its council to incorporate as a city, as provided in article 961?”

It is not necessary to set forth in full the certificate of the Court of Civil Appeals, as in our discussion of the questions submitted we will quote therefrom such facts as we deem pertinent to support the conclusions reached by us.

L The first question presents the issue as to whether there is any evidence in the record tending to show that all the territory included within the corporate limits of the town of Muenster was intended, at the time of incorporation, to be used strictly for town purposes.

There was testimony from some of the proposed incorporators to the effect that all of the 640 acres included within the corporate limits was suitable for town purposes and intended at the time of the incorporation to be used as such. It was further shown that an oil field had been brought in adjacent to the city limits and that two or three producing wells were located within the proposed limits of the city. As a result of the discovery of this oil field, the population began to increase, and it reasonably appeared that the proposed city would have a very rapid growth. The court, in determining whether the amount of land included within the city limits was reasonably necessary to take care of the future growth of the city, could properly consider as a matter of judicial knowledge the fact that the development of an oil field adjacent to a town is reasonably calculated to bring about a large increase in population as well ,as in industrial enterprises. Because of such fact it was permissible to include more unused land within the corporate limits than under ordinary circumstances would be considered sufficient to take care of the future growth of a city of this class.

In the case of State v. Hoard, 94 Tex. 527, 62 S. W. 1054, it was held by.our Supreme Court that the inclusion of 205 acres of cultivated land within the territorial limits of the town of Celeste did not render the incorporation invalid, even though the land included was cultivated land, containing no houses thereon, and was not subdivided into lots or blocks.

In Thompson v. State, 23 Tex. Civ. App. 370, 56 S. W. 603, it was shown that a town having a population of less than 2,000 included within its boundaries 400 acres of agricultural land which was suitable for town purposes. The incorporation was upheld upon the trial court’s finding that the land was suitable for and intended to be used strictly for town purposes.

Our conclusion is that there was some evidence to sustain the finding of the trial court that all the land included within the corporate limits of the town of Muenster was intended, at the time of the incorporation, to be used strictly for town purposes. We therefore answer the first question in the affirmative.

Article 961, R. S. 1925, authorizes the acceptance by certain cities or towns of the provisions of title 28 of the Revised Statutes by the adoption' of a resolution at a regular meeting of the city council.

Appellant contends that this statute was not complied with, because the meeting at which the resolution was passed adopting the provisions of title 28 was not a regular one.

The record discloses that, at' a preliminary meeting of the council on April 19, 1927, it was provided by motion, duly passed, that the council should meet on the first Monday in each month at 8 p. m., without specifying any particular place of meeting. It is also disclosed that by resolution passed on June 27, 1927, the time of the meeting of the city council was changed from 8 p. m. on the first Monday of each month to 8 p. m. every Monday.

It is claimed that the meeting of June 27, 1927, at which the resolution was adopted attempting to change the regular meeting time of the council, was unauthorized, but that, if. such meeting was a valid one, the attempted change, of meeting time was void because the resolution attempting to accomplish such purpose failed to specify the place of meeting, and in addition thereto the city council did not meet on July 27, at 8 p. m., the designated hour, but at 9 p. m.

The trial court found that the meeting of June 27, 1927, was a valid called meeting and that at such time, by resolution duly adopted, the meeting time was legally changed from the first Monday in each month to every Monday.

We think the above finding of the trial court is sustained by the evidence. It is shown that the mayor notified in person every member of the city council that a special meeting would be held on the night of June 27, 1927, and also gave them the information as to the nature of the business to be transacted at such meeting.

Appellant argues that under the statute a valid called meeting could only be held by serving written notice upon each member of the council or leaving the same at their usual place of abode. The statute requiring notice for special meetings of this character is article 1008, which provides: “The mayor, of his own motion, or on the application of three aldermen, may call special meetings, by notice to each member of said council, tlie secretary and city attorney, served personally or left at tlieir usual place of abode.”

We think this statute is directory, and that a substantial compliance with its provisions for notice to the members is sufficient.

The Supreme Court of Massachusetts, in construing a statute similar to the one under consideration, held that the provision for leaving notice at the place of residence of the members did not exclude service of notice on the members personally, as such form of service was most effective to accomplish the object and purpose of the statute. Russell v. Wellington, 157 Mass. 100, 31 N. E. 630. See, also, Dillon on Municipal Corporations, §§ 262-264.

It is also insisted that the resolution adopted at the special meeting on June 27, 1927, attempting to change the time of meeting of the city council is ineffective because not in compliance with article 1008, which reads as follows: “The city council shall hold stated meetings at such times and places as they shall by resolution direct.”

We do not think the failure of the resolution to fix a stated place for the meeting rendered the session in question illegal. It was shown to be the custom for the council to . meet in the rear of a bank building in the : town of Muenster, and it is undisputed that .its meeting place was known to all 'the members of the council and to the general public; ' that frequently citizens interested in matters to be acted upon by the council appeared before them at their meetings. The council having met in its usual and customary place within the corporate limits, the meeting was a lawful one.

In Wells v. Mt. Olivet, 126 Ky. 131, 102 S. W. 1182, 11 L. R. A. (N. S.) 1080, it appeared that the charter of a city provided its trustees might meet at a place within the corporate limits, to be fixed by ordinance. No place having been fixed by ordinance, it was decided that the council might lawfully meet at some convenient and acceptable place within the corporate limits of the town.

Similarly, it was determined by the Supreme Court of Arkansas, in Harrison v. Campbell, 160 Ark. 88, 254 S. W. 438, that, where no regular meeting place had been provided, the custom of the city council to meet in the mayor’s office, where all the members of -the council were present, authorized the passage of a valid ordinance.

Nor does the fact that the meeting did not start at 8 o’clock, the hour designated therefor, invalidate the proceedings had at such meeting. The minutes of the June 27 meeting recite that the council met at 9 o’clock, instead of 8 o’clock, the hour fixed for such meeting. The failure of the council to ¡meet at the appointed time, as explained by the secretary, was due to the fact that some members of the council were late in arriving at the meeting place, and it was customary to delay the meeting until 9 o’clock in order that all members who desired to attend might be present. It is not shown that there was any sinister purpose or motive in holding the meeting at 9 o’clock, or that any one interested was misled thereby. It would be the adop-* tion of too strict a rule to hold that a meeting of a city council is illegal if it does not start exactly at the minute specified.

The holding of the meeting, under the circumstances, was a substantial compliance with the time designated in the resolution for the hour of meeting. Of course if the meeting of the council had -been held before the' appointed hour or at such a length of time thereafter as to operate as a surprise to those interested therein, so as to prevent their attendance at the meeting, then a different question would be presented.

We conclude that the resolution by the council on July 25, 1927, was adopted at a regular meeting of the town council. We therefore answer the second question in the affirmative.

Under the provisions of article 961, R. S. 1925, the town of Muenster was entitled to accept the provisions of title 28, R. S. 1925, if it contained 600 inhabitants or had one or more manufacturing establishments within the corporate limits.

The undisputed evidence shows that there were three manufacturing establishments within the corporate limits at the time of the adoption of -the resolution accepting the provisions of title 28, to wit, a milling company engaged in making flour, an oil refinery niaking gasoline and other products from crude oil, and an institution engaged in manufacturing storage batteries. Since the town had the requisite number of manufacturing institutions, it was brought within the class entitled to accept the provisions of title 28, even though its population was less than 600 inhabitants at the time the council passed its resolution accepting the provisions of said title. It is therefore not necessary that we answer the third question certified, as it affirmatively appears an answer thereto is not material to a decision of the case.

We recommend that the questions submitted be answered as indicated herein.

OURETON, O. J.

The opinion of the Commission of Appeals answering the certified questions is adopted, and ordered certified.


source: Caselaw Access Project

author: SHORT, P. J. CURETON, C. J.

license: Public Domain

text:
    ORMSBY et al. v. RATCLIFFE et al.
    No. 1251-5632.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.
    Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, and Chas. L. Black, of Austin, for plaintiffs in error.
    Davis & Hatchell and John Davis, all of Dallas, for defendants in error.
   SHORT, P. J.

This case arose out of differences between the parties growing out of a contract executed December 31, 1919, which was terminated on December 31, 1920. It has reached the Supreme Court the second time, and in the meanwhile the record has become voluminous. The first opinion of the Court of Civil Appeals was reported in 298 S. W. 930. An opinion of the Supreme Court on one phase of the case is reported in 117 Tex. 242, 1 S.W.(2d) 1084. The second opinion of the Court of Civil Appeals, from which a writ of error has been successfully prosecuted, is reported in 22 S.W.(2d) 604. In the interest of brevity we ask that this opinion be read in the light of former opinions, and especially in the light of the facts found by the Court of Civil Appeals in its last opinion.

On December 31, 1919, the Republic Rubber Company of Texas, a domestic private corporation, was engaged in the distribution of automobile tires and accessories, on which date that corporation entered into a written contract with L. D. Ormsby and William P. Bell, who are the plaintiffs in error here, whereby the latter were given the right to handle, sell, and distr.ibute this merchandise in certain specified territory, including the city of San Antonio. On December 31, 1920, when the written contract was terminated, the defendant in error, to whom had been assigned this cause of action by the corporation, claimed that the plaintiffs in error were due the corporation, and himself as assignee, the sum of $2,556.22, after allowing all legal offsets. Suit was instituted for this amount.

In addition to some special exceptions, the plaintiffs in error interposed a general denial, specially answered that the written contract was in fact a sales contract, and also alleged that the transaction in fact amounted tó a -violation of the anti-trust laws of the state. However, in the view wé'have tatei of this' case, it will not be necessary to discuss the’ question whether the transaction amounted to a violation of the anti-trust laws of the state.

There was a trial to a jury on special issues, which, with the answers thereto, are as follows:

“(1) From a preponderance of the evidence, what amount of money, if any, do you find and believe is due by the defendants to the plaintiffs herein; answer in dollars and cents.” Answer: “$2,556.22.”
“(2) Do you find from a preponderance of the evidence that the consideration for the account sued on wholly failed by .reason of defective tires furnished by the Republic Rubber Company of Texas to the defendants?” Answer: “No.”
“(3) Do you find from a preponderance of the evidence that the consideration for the account sued on has failed in part by reason of defective tires furnished by the Republic Rubber Company of Texas?” Answer: “No.”

The court .rendered a judgment on the verdict in favor of the defendants in error against ■the plaintiffs in error, jointly and severally, for the sum so found by the jury bo be due, with legal interest thereon from January 1, 1922, 'and upon appeal to the Court of Civil Appeals at Waco the judgment of the trial court was affirmed. It is from this judgment that the writ of error has been prosecuted.

While there are nineteen assignments <5f error presented in the application, supported by numerous propositions, we do not think it necessary to discuss them in detail, since we have reached the conclusion that all of them should be overruled.

The Court of Civil Appeals correctly held that in determining whether the issues submitted, and whether the judgment rendered are supported by the pleadings, the trial court was authorized to supply omissions in the pleadings of one party by allegations in the pleadings of the other. The Court of Civil Appeals held that the pleadings of the defendants in error were sufficient, when aided by the pleadings of the plaintiffs in error, to authorize the submission of the issues, which were submitted, and to support the judgment rendered in the case, citing Ray v. Barrington (Tex. Civ. App.) 297 S. W. 781, and the authorities there cited.

After this Instrument, dated December 31, 1919, had been executed, about October 22, 1920, the domestic corporation shipped to the plaintiffs in error a lot of tires and accessories marked N. E. C., meaning “not first class,” apparently, but, in fact, the goods were first class, though they were represented to .be otherwise, with the view of accelerating their purchase by consumers at reduced prices. The domestic corporation claimed that these N. E. C. tires and accessories were not delivered to the plaintiffs in error under the terms of the written contract, but that they were sold outright to them. The plaintiffs in error claimed that the goods which were delivered under the written contract, which guaranteed that the goods delivered should be free from substantial defects, were defective, and that, on account of alleged defects, the plaintiff in error had been damaged in an aggregate amount exceeding the debt claimed by the plaintiff in error. The testimony introduced by the plaintiffs in error, in support of their contention, was held by the Court of Civil Appeals to be too general to form a basis for a finding by a jury of any specific amount of damages suffered by the plaintiffs in error on this account. We have examined the statement of facts, and have reached the same conclusion which the Court of Civil Appeals did. The burden of proof rested upon the plaintiffs in error to establish the alleged fact they had suffered damages by reason of the failure of the corporation to comply with the contract, and the amount of such damages. In the absence of such testimony, they were not entitled to have this issue submitted to the jury.

The testimony is without any substantial conflict that the N. F. O. merchandise was not considered ,by either of the parties as being within the terms of the written contract, but that the merchandise was sold by the corporation and purchased by the plaintiffs in error. Speaking of the date of the termination of the written contract, Ormsby, one of the plaintiffs in error, testified: “I had no tires on hand there and kept no tires on hand there other than those I had bought outright on this N. F. C. deal.” Again, this witness testified: “Up until the time they started this N. F. C. basis, I carried on my business as provided by the contract, whereby I reported the goods as I sold them. I then made trade acceptances on the first of the month previous. That arrangement was changed when they put on the N. F. O. basis or arrangement; thereby and thereafter I just took so many tires and they charged them to me and I held them in stock and sold them myself. * * * When I took and purchased this 'Stuff I have been describing, I took it out of the stock which I had oh consignment. * * * I took the stuff I bought on the N. F. C. basis out of the consigned stock '; I also bought some I did not take out of consigned stock; they shipped me stuff from several other places; I bought on that basis; they shipped some from Dallas I bought on that .basis, and I believe I got some from New Orleans that was bought on that basis. * * * ⅝ got some from other branches. These shipments I got from Dallas and other places were not shipped under consignment contract; I know they were not because they were bought outright.” Since the N. F. 0. goods were bought under an oral agreement made after the expiration of the written contract, they were not within the terms of the written contract, which provided that the corporation should reimburse the plaintiffs in error for any expense incurred in making adjustments by reason of defects in the goods claimed to have been consigned.

There was no issue requested to be submitted to the jury determining what part of the account sued on was for merchandise sold under the N. F. 0. deal, and what part, if any, was due under the written contract of December 31, 1919. The testimony is amply sufficient to have justified the court in concluding that no part of the amount sued for arose from any transaction under the written agreement of December 31,1919, and this question the court had the authority to determine in harmony with the other facts found by the jury and with the judgment rendered thereon, in the absence of a request that tbe issue be submitted to tbe jury.

There is also testimony in tbe record tending to show that tbe amount claimed by tbe defendants in error is the amount upon which the corporation’s agent, Ratcliffé, and tbe plaintiffs in error agreed as a final settlement of their affairs on December 31,1920, including tbe goods delivered under tbe written contract and tbe goods delivered under tbe N. IT.- O. arrangement, and, if that testimony is true, then tbe judgment rendered could be upheld upon that theory, since no issue was requested with reference to this testimony. If tbe amount for 'which tbe judgment was rendered was due solely by reason of tbe N. F. O. .deal, then tbe question whether the transaction evidenced by tbe contract of December 31, 1919, and tbe question whether tbe contract .thus evidenced was in violation of tbe antitrust laws, became immaterial. If there was .another and different contract, outside of the contract, evidenced by tbe written instrument of December 31, 1919, which all of tbe parties .agree was a sales contract, unhampered by any contention other than absolute delivery for a .stated consideration, and an agreement to pay for tbe goods at certain prices, on certain -dates, then there could be no violation of the .anti-trust laws.

In view of the exhaustive opinion of Chief ■Justice Gallagher, which clearly disposes of all the questions presented by the application for the writ of error, we do not deem a further discussion of them to be necessary by us. The testimony which we have quoted in this opinion, given by Ormsby, one of the plaintiffs in error, which is not contradicted by any other testimony in the case, demonstrates, beyond cavil, that the amount for which júdgment was rendered against the plaintiffs in error, in favor of the defendants in error, was for merchandise purchased outright by the plaintiffs in error from the defendant in error R. E. Rat-cliffe, under and by virtue of the terms of an oral contract, as, for instance, in speaking of the termination of the written contract, this witness testified: “I had no tires on hand there and kept no tires on hand there other .than those I had bought outright on this N. F. O. deal.” Furthermore, the state of the record justified the trial judge in concluding there was a final settlement between the plaintiffs in error and R. E. Ratcliffé, the defendant in error, of all matters relating to the transactions had under the written contract, and that this sum, for which judgment was rendered, was the amount due by the .plaintiffs in error, .arising out of the transactions based on the •oral contract, in connection with the agreed final settlement between the parties of all ■transactions had under the written contract.

We therefore recommend that the judgments of the Court of Civil Appeals and of the .district court be affirmed.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: LEDDY, J. CURETON, C. J.

text:
    RYAN v. KENT.
    No. 1226-5594.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.

      C. C. Gumm, of Fort Worth, for plaintiff in error.
    Lawrence Treadwell, of Corsicana, and W. A. Tarver, of Austin, for defendant in error.
   LEDDY, J.

We adopt the following statement of the case as made by the Court of Civil Appeals, 20 S.W.(2d) 1099:

“This suit was instituted by appellant, G. C. Kent, against appellee George R. Ryan, to cancel an oil and gas lease held by appellee on 106.5 acres of land, and to remove the cloud cast thereby on appellant’s title to said land. Appellant further prayed that he be quieted in his title and possession of said land and the minerals therein and thereunder. Certain remote grantors in the chain of title under which appellee claimed said lease were also made parties defendant.

“J. C. Harper and wife, on May 14, 1919, executed and delivered to Paulsen-Highnote Oil & Gas Company an oil and gas lease on the tract of land involved in this suit. Said oil and gas company held at that time a prior oil and gas lease on said tract of land, and said Harper held the same subject thereto. Seven or eight shallow wells had theretofore been drilled on said land and oil discovered therein. Several or all of said wells were being operated at that time by said oil and gas company, and royalties on the oil produced therefrom were being paid to said Harper as they accrued. The average daily production of oil from said wells at that time is not shown, but at a later date the average production from each well operated is shown to have been 1 or 2 barrels per day. On said 14th day of May, 1919, a representative of said oil and gas company presented to said Harper and wife the mineral lease under which ap-pellee now claims, and stated that said company needed a new lease to ‘straighten their business out.’ Harper testified that his attorney was out of town, and that he did not have an opportunity to advise with him about signing said lease. He further testified that nothing was said about drilling any further wells on said land; that he did not require any further wells to be drilled; and that said representative did not give any assurance or make any promise that other wells would be drilled. He did testify, however, that something was said at the time about ‘deep oil.’ There was testimony that a ‘leasing campaign’ was on in that territory at that time. Said lease, .omitting immaterial paragraphs, is as follows:
“ ‘Oil and Gas Lease — Form 88.
“ ‘Agreement, Made and entered into the 14th day of May, 1919, by and between J. C. Harper and wife Mrs. Altie Harper, hereinafter called Lessor (whether one or more), and Paulson-I-Iighnote Oil & Gas Co., hereinafter-called Lessee:
' “ ‘Witnesseth: 'That the said Lessor, for and in consideration of One Dollars, cash in hand paid, receipt of which is hereby acknowledged, and of the covenants and agreements hereinafter contained on the part of the lessee to be paid, kept and performed, have granted, demised, leased and let, and by these presents do grant, demise, lease and let unto the said Lessee for the sole and only purpose of mining and operating for oil and gas, and of laying pipe lines, and of building tanks, towers, stations and structure thereon to produce, save and take care of said products, all that certain tract of land situated in the County of Navarro, State of Texas, described as follows, to-wit: ⅜ * * (Field notes omitted.)
“ 1 It is agreed that this lease shall remain in force for a term of five years from this date, and as long thereafter as oil. or gas, or either of them, is produced from said land by1 the lessee.
“ ‘In consideration of the premises, the said lessee covenants and agrees:
“ ‘1st. To deliver to the credit of the Lessor, free of cost, in the pipe line to which he may connect - wells, the equal one-eighth part of all oil produced and saved from the leased premises.
“ ‘2nd. To pay the Lessor one-eighth royalty', each year, in advance, for the gas from each well where gas only is found, while the same is being used off the premises, and the Lessor to have gas free of- cost from any such well for-stoves and-inside light's in the principal dwelling house on said land, during the same time by making their own’ connections with the well at their own risk and expense.
“ ‘3rd. To pay Lessor for gas produced from any oil well and used off the premises at the rate of one-eighth royalty, per year, for the time during which such gas shall be used, said payments to be made each three months in advance. Also to pay Lessor one-eighth of the net proceeds derived from the sale of casing-head gas utilized in making gasoline.
“ ‘If no well be commenced on said land on or before the - day of -, 191-, this lease shall terminate as to both parties, unless the Lessee on or before that date shall pay or tender to the Lessor, or to the Lessor’s credit in the - Bank at - or its successors which shall continue as the depository regardless of all changes in the ownership of said land, the sum of-Dollars, which shall operate as a rental and cover the privileges of deferring the commencing of a well for - months from said date. In like manner and upon like payments, or tenders, the commencement of a well may be further deferred for like periods of the same number of months successively. And it is understood and agreed that the consideration first recited herein, the down payment, covers not only the privilege granted to the date when said first rental is payable, as aforesaid, but also the Lessee’s option of extending that period as aforesaid, and any and all other rights conferred.
“ ‘Should the first well drilled on the above described land be a dry hole, then, and in that event, if a second well is not commenced on said land within twelve months from the expiration of the last rental period for which rental has been paid, this lease shall terminate as to both parties unless the Lessee on or before the expiration of said twelve months shall resume the payment of rentals in the same manner as hereinbefore provided. And it is agreed that upon the resumption of the payment of rentals as above provided, that the last preceding paragraph hereof, govem-.ing the payment of rentals and (he effect 'thereof, shall continue in force just as though ¡there had been no interruption in the rental .payments.
“ ‘If said Lessor owns a less interest in the jabove described land than the entire and un-idivided fee-simple estate therein, then the ¡royalties and rentals herein provided for | shall be paid the said Lessor only in the proportion which - interest bears to the 'whole and undivided fee.
, “ ‘Lessee shall have the right to use, free of cost, oil and water produced on said land for - operations thereon, except water from wells of Lessor.
! “ ‘When requested by Lessor, Lessee shall bury-pipe line below plow depth.
“ ‘No well shall be drilled nearer than 200 feet to the house or barn now on said premises, without the written consent of Lessor.
“ ‘Lessee shall have the right of ingress and egress to said premises at all times during the life of this lease.
“ ‘Lessee shall pay for all damages caused by operations to growing crops on said land.
“ ‘Lessee shall have the right at any time to remove all machinery and fixtures placed on said premises, including the right to draw and remove casing. ⅜ * * (Assignment and warranty clauses omitted.)
“ ‘In Testimony Whereof, we sign this the 14th day of May, A. D. 1919.
“ ‘J. 0. Harper,
“ ‘Mrs. Altie Harper.’
“Appellee bases the claims asserted by him in this suit solely on said new lease. Said Paulsen-Highnote Oil & Gas Company continued to operate said shallow wells, paying the royalties accruing from such operation to the said Harper, until July 15, 1920, when it assigned said lease to another. Appellee claims under an assignment of said lease to him, dated December 13, 1924. Said assignment was the seventh successive assignment thereof. Said assignment to appellee was more than five years after the date of said lease.
“Harper and wife, on December 22,1921, executed a deed of trust on said land to secure large sums of money owed by him to the First State Bank of Hillsboro. On January 11, 1923, they conveyed all the minerals in and under said land to said bank. There is testimony tending to show that this conveyance was intended as a mortgage to better secure said indebtedness. The trustee in said deed of trust, on September 4, 1925, sold said land to satisfy said indebtedness, and said bank became the purchaser at said sale and received a deed to said land from the trustee. Appellant purchased said land from said bank on February 18, 1927. He testified that the consideration for the sale of said land to Mm was $9,000. He further testified that he bought said land in good faith, believing that said .mineral lease had expired, and that he acquired by such purchase a fee-simple title to both the surface of the land and the minerals in and under the same. He further testified that the value of the land exclusive of minerals was $1,000, and that the value of the minerals in and under the same was estimated by him at the sum of $8,000 in such purchase.
“None of the successive holders of said lease ever drilled any well or wells to further develop the same and increase the production therefrom. Neither Harper nor said bank ever requested the drilling of such additional wells. During all said years the respective holders of said lease paid the stipulated royalties arising from the operation of said old wells to Harper or to said-hank. Two such payments were made by appellee at the office of appellant after appellant purchased the land. Shortly after said lease was assigned to appellee he had a conversation with Harper with reference to the operation of said wells, and Harper stated to him that he was satisfied with the manner in which the same were being operated. Appellee testified that he told Harper' at the time that he ‘wanted to go ahead and put this lease in shape,’ and that Harper said such action would be satisfactory to him. Appellee had a similar conversation with a representative of said bank. Shortly thereafter -appellee expended about $2,700 in repairing and improving the machinery and appliances used in operating said wells. ⅝ ⅜ *
“The case was tried to the court and judgment rendered that appellant take nothing by his suit, and that appellee be quieted in his ownership, title, and possession of the mineral estate in and under said land, less a one-eighth royalty interest therein.”

The Court of Civil Appeals reached the conclusion that there was a latent ambiguity in the provision of the lease which continued it in force, after the initial or fixed period of five years, “as long thereafter as oil or gas, or either of them, is produced from said land by the lessee.” The case was reversed and remanded for a determination of the issue as to whether it was the intention of the parties to said instrument at the time of its execution that the continued operation of said old producing wells alone should constitute production of oil from the premises by lessee within the meaning of said provision, and thereby continue the rights of the lessee or his assigns therein so long as such production should be continued.

In ascertaining whether the parties to this contract intended that the lease should be continued by production from wells producing oil at the time it was executed, we may look to the surrounding circumstances when the contract was entered into, the situation of the parties, and of the subject-matter of the instrument (Dipscomb v. Fuqua, 103 Tex. 585, 131 S. W. 1061; Borden v. Patterson, 51 Tex. Civ. App. 173, 111 S. W. 182), and this regardless of whether the language used in said contract he ambiguous. Hoffer Oil Corp. v. Hughes (Tex. Civ. App.) 16 S.W.(2d) 901; Dublin v. Thompson (Tex. Civ. App.) 166 S. W. 113.

A clear statement of this rule is that made in Reed v. Insurance Co., 95 U. S. 23, 30, 24 L. Ed. 348, wherein the court said: “Although a written agreement cannot be varied (by addition or subtraction) by proof of circumstances out of which it grew and which surrounded its adoption, yet such circumstances are constantly resorted to for the purpose of ascertaining the subject-matter and the standpoint of the parties in relation thereto. Without some knowledge derived from such evidence, it would be impossible to comprehend the meaning of an instrument, or the effect to be given to the words of which it is composed. This preliminary knowledge is as indispensable as that of the language in which the instrument is written. A reference to the actual condition of things at the time,, as the3r appeared to the parties themselves, is often necessary' to prevent the court, in construing their language, from falling into mistakes and even absurdities. * * * ‘It may, and indeed it often does, happen,, that, in consequence of the surrounding circumstances being proved in evidence, the courts give to the instrument, thus relatively considered, an interpretation very different from what it would have received, had it been considered in the abstract. But this is only just and proper; since the effect of the evidence Is not to vary the language employed, but merely to explain the sense in which the writer understood it.’ ”

Construing the contract in the light of these well-established principles, we think the provision for continuing the lease after the initial or fixed period of five years “as long ⅜ * * as oil or gas or either is produced from1 said land by the lessee” is not an ambiguous one. In plain terms it gives the lessee the right to continue to explore the land for oil so long as oil is produced by him from the premises, and this regardless of whether such oil should be produced from existing wells or from those subsequently drilled under the present lease.

It must be remembered the parties knew at the time they executed this lease that this very lessee was then producing oil in paying quantities from a number of wells which had been drilled on the premises under a prior lease. If it had been the intention of the parties that the last lease should not be continued after the five-year period, except by production of oil from wells drilled subsequent to its execution, it is altogether probable they would have used such restrictive language as would have limited the right of the lessee to continue the lease in force only by producing oil from wells other than those then in operation. The lease may be searched in vain for any such restrictive language. By the use of language too clear to be misunderstood the lease expressly gives the lessee the privilege of continuing it in force as long after five years as he produces oil or gas from the leased premises. It is undisputed that the lessee is now and has continuously been complying with the literal terms of the lease by producing oil from the premises and paying the required royalty thereon. Certainly the parties to this lease knew that oil produced from wells drilled under the prior lease would comply with the terms of this lease as it unquestionably would be oil “produced from said land by the lessee.”

Even if it be conceded, however, that the provision in question is reasonably susceptible of two interpretations, the action of the trial court in refusing to decree a forfeiture of the lease was proper.

Forfeitures are not favored at law and will only be decreed where the provision therefor is clear and specific. Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W. (2d) 27, and authorities there cited. “The authority to forfeit a vested right or estate,” says Judge Stayton, in Benavides v. Hunt, 79 Tex. 392, 15 S. W. 396, 399, “should not rest in provisions whose meaning is uncertain and obscure. It should be found only in language which is plain and clear — whose unequivocal character may render its exercise fair and rightful.” Decker v. Kirlieks, 110 Tex. 94, 216 S. W. 385, 386.

This rule of construction is universally applied to oil leases. It must therefore be held that, if this contract is fairly susceptible of two interpretations, it should be so construed as to prevent a forfeiture of the rights granted thereunder. Adams v. Fidelity Lumber Co. (Tex. Civ. App.) 201 S. W. 1034; Decker v. Kirlicks, 110 Tex. 94, 216 S. W. 385, 386.

Nor will a liberal construction be given the provisions of the lease if to do so will cause a forfeiture of the rights secured thereby. South Texas Tel. Co. v. Huntington, 104 Tex. 350, 136 S. W. 1053, 138 S. W. 381.

It is manifest, we think, that the execution of the second lease was for the sole purpose of modifying the royalty provision contained therein. Under the first lease the lessee was required to pay a royalty of one-eighth of the oil produced from wells producing less than ten barrels per day, one-sixth from those producing between ten and fifteen barrels, and one-fourth on all wells producing in excess of fifteen barrels per day. The new lease merely provided for the usual one-eighth royalty on all oil produced from the premises. This view is strongly reinforced by the fact that the parties left blank the usual clauses in the form 88 lease providing for a termination of the lease by failure of the lessee to drill or pay rentals during the five-year period.

We agree with the conclusion expressed by the Court of Civil Appeals that the lease under consideration, while it does not require, in express terms, the drilling of any additional wells, clearly does so by implication. Therefore the lessee rests under an obligation to develop said land with reasonable diligence for the production of oil and gas. As long, however, as he produces oil or gas in paying quantities from the leased premises, his rights are not subject to forfeiture. If he should fail to comply with the implied covenant to develop the land, the lessor’s remedy would be an action to recover such damages as he may be able to show he has sustained by reason of the lessee’s default. Texas Pacific Coal & Oil Co. v. Barker, 117 Tex. 418, 6 S.W. (2d) 1031, 1035, 60 A. L. R. 936; Freeport Sulphur Co. v. American Royalty Co., 117 Tex. 439, 6 S.W.(2d) 1039,. 1045, 60 A. L. R. 890; Waggoner Estate v. Sigler Oil Co., supra.

We recommend the judgment of the Court of Civil Appeals be reversed and that of the trial court affirmed.

CURETON, C. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court affirmed, as recommended by the Commission of Appeals.


text:
    MODERN PLUMBING CO. et al. v. ARMSTRONG BROS.
    No. 1239-5622.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.

      J. W. Stovall and Upton & Upton, all of San Angelo, for plaintiff in error.
    C. T. Dalton, W. A. Anderson, and O. C. Fisher, all of San Angelo, for defendants in error.
    J. P. Miller, of Dallas, amicus curim.
   SHORT, P. J.

The statement of the Court of Civil Appeals, as to the nature of the original suit, and the facts of the case, is as follows:

“Appellee, Armstrong Brothers, as assignee and owner, sued J. W. Garvin and his wife and Fred J. Rohmer on a $2,500 note and to foreclose a mechanic’s line securing the note on certain lots constituting the homestead of Garvin and. wife, and on which Rohmer had constructed a house in consideration for the note; and appellant, Modem Plumbing Company, was made a party defendant upon the allegation that it was asserting some character of lien against the property involved. It answered and sought to establish and foreclose a materialman or laborer’s lien against the property for the plumbing furnished Rohmer under his building contract.
“Judgment was for appellee as prayed; biut appellant Modern Plumbing Company was denied a materialman or- laborer’s lien against the property; and it alone has appealed, complaining that the court erred in denying its lien in toto, or in the alternative prorata with appellee’s lien and claim.
“The case was tried to the court without a jury upon the following agreed facts:
“ ‘That the lots described in plaintiff's petition constitute the homestead of J. W. Gar-vin and wife, and was their homestead at the time of making the contract herein sued upon.
“ ‘That on the 16th day of January, 1928, J. W. Garvin and wife entered into a contract with Fred J. Rohmer to erect a frame residence on said lot for a consideration of twenty-five hundred, ten and no/100 Dollars ($2,510.00); Ten Dollars ($10.00) paid in cash and ⅛ note for twenty-five hundred dollars ($2,500.00), dated January 16, 1928. * * * That on the same date Fred J. Rohmer transferred and assigned said note and said lien to Armstrong Brothers and the consideration for said transfer was that Armstrong Brothers woul¡d furnish material and advance money for payroll to the said contractor to the extent of twenty-five hundred dollars ($2,500.00).
“ ‘The contract and the transfer of the contract were filed with the County Clerk on the 20th day of January, 1928, before any labor or material was furnished.
“ ‘That the house as contracted for was completed by the contractor; that Armstrong Brothers furnished material from time to •time during the erection of said house of the value of $1,255.18. That during said time Armstrong Brothers advanced money to the contractor in the total sum of $1,235.00.
•“ ‘That the Modern Plumbing Company furnished the plumbing for said house by virtue of a contract with Fred J. Rohmer which specified it was to receive Three Hundred and Two Dollars ($302.00) therefor; that on the 6th day of April, 192S, Modern Plumbing Company gave notice to J. W. Garvin and wife that said contract price had not been paid them or any part thereof, and on the same day filed a statement of its claim with ithe County Clerk of Tom Green County, Texas ; and that said notice and statement were in proper form and within the time to create a lien on said property if under the facts in this case such a lien could be fixed.
“ ‘That Armstrong Brothers had paid the amounts set forth in money and material to F. J. Rohmer without any notice of the claim ■of Modern Plumbing Company, and made all payments either in money or material to said Fred J. Rohmer or to his order.
“ ‘That the note signed by J. W. Garvin and wife is now owned by Armstrong Brothers, past due and unpaid.’ ” 20 S.W.(2d) 353, 359.

The Court of Civil Appeals affirmed the judgment of the district court, and the Modem Plumbing Company only has prosecuted a writ of error to the Supreme Court.

Under the agreed facts set out in the opinion of the Court of Civil Appeals, the situation of the parties is substantially the same as that reflected in Gollnick v. Fry, 23 'S. ⅜. (2d) 677, wherein this section of the commission, speaking through Judge Leddy, answered icertifiad questions propounded by the Court of Civil Appeals of the Second District, and wherein it was held that an assignment by a contractor to a lumber compány of a me- - chanie’s lien, note, and deed of trust given by owners of property, where the assignment provided that the transfer was for the purpose of securing the contract price of improvements to be erected, and that the contractor desired to fulfill the contract, but to assign all his evidences of debt, and where the contractor did in fact construct the building, the lumber company merely furnishing materials and paying orders' given by the contractor for labor performed, the same did not, as a matter of law, render the assignee liable to the subcontractor, employed by the contractor to do plumbing work, for the reason that there was no assignment of the entire contract.

In this case the agreement shows that, the bouse, as contracted for, was completed by the contractor; that the lumber company, the defendants in error here, furnished material from time to time during the erection of the house, of the value of $1,255.18, and advanced money to the contractor with which labor claims were paid, amounting to $1,235, totaling $2,490.18; that the plaintiff in error furnished the plumbing for the house, by virtue of a contract with the contractor, and that the defendants in error, Armstrong Bros., had paid the amounts set forth in money and material to the contractor, without any notice of the claim of the plaintiff in error, and made all payments either in money or material to the contractor, or to his order. From these agreed facts, it is apparent •that the lumber company, the defendant in error here, did not receive from the contractor any assignment of the entire contract, but merely received an assignment of the note and the lien, leaving the performance of the contract, and the obligation to perform it to the contractor.

Section 37, art. 16, of the Constitution provides that “mechanics, artisans and mate-rialmen, of every class, shall have a lien upon the buildings and articles made or repaired by them, for the value of their labor done thereon, or material furnished therefor.” The Legislature, in chapter 2, title 90 (Rev. St.), has elaborately provided for the speedy and efficient enforcement of liens, as directed by the Constitution. Articles 5460, 5463, and 5468 would be specially pertinent to the law of this case, under the facts, but for the further fact that it appears that the defendants in error had paid the amounts in money and material to the contractor without any notice of the claim of the plaintiff in error, the aggregate sum of said payments amounting to within $19.82 of the amount of the fund provided by the owners of the homestead. The contract made between Garvin and wife, as the owners of the homestead, and Fred J. Rohmer, the contractor, provided that the contractor should furnish all the material and the labor, and build a house according to certain plans and specifications for the sum of $2,510. Since the defendants in error, Armstrong Bros., furnished labor and material to the contractor, amounting to the sum of $2,490.18, without any notice of the claim of the plaintiff in error, and since Armstrong Bros, have an assignment of the fund provided by the owners, to the extent of the aggregate amount of the sums of money paid, by them to the contractor or to'his •order, and since there is no suggestion of fraud perpetrated by Armstrong Bros, and the contractor, and no suggestion that. Armstrong Bros, had any interest in any profits which the contractor might make, or was liable for any loss which he might sustain, under the holding of Gollnick v. Fty, supra, Armstrong Bros, had the legal right to appropriate so much of the fund, provided by the owners, as was .necessary to reimburse them for the payment' of the labor done, and the materials furnished, irrespective of whatever demands the plaintiff in error might have against the cointractor for the full ¿mount of its claim, and irrespective of whatever demand the plaintiff in error might have against the owners for' the balance due the. contractor, after the claim of the defendants in error, Armstrong Bros., had been satisfied.

It is true, as contended by counsel for plaintiff in error, that under tbe facts in tbis case the execution and delivery of the' note by Garvin and wife to the contractor, and the transfer of the note by the contractor to Armstrong Bros, was not, legally speaking, a payment of the fund which the owners agreed to provide, out of which mechanics, artisans, and materialmen could be paid, and upon which to secure such payment the Constitution gave a lien. The execution and delivery of the note was a mere means of fixing the liability of the owners of the homestead, when the contractor, Rohmer, had performed his part of the contract. Rohmer’s assignee could acquire no greater right to this fund than Rohmer himself had, and Rohmer acquired no right thereto until he had performed the contract made with Garvin and wife. While Rohmer was performing the contract, the Constitution secured to every one doing labor upon the building, or furnishing material therefor, a security for the payment of their several claims, and where those claims arose simultaneously, certain conditions of the statute having been complied with, each claimant had an equal right to demand and receive from the fund, either the full amount of his claim, if the fund was sufficient, or, if insufficient, to receive a pro rata share thereof. Had Rohmer paid regularly, at stated times, for the labor done and the material furnished in cash, and the whole $2,510 had been expended, and thereafter other labor had been done, and other material had been furnished, those doing the labor, or furnishing the material, could only look to the contractor for satisfaction. The homesteader could not be compelled to pay more than he had agreed to pay the contractor. This is true whether the agreement was oral, except for the lien provided by statute, or whether, in addition bo the lien, the homesteader had executed a note for the amount, and that note had been afterwards, together with the lien, transferred to another party. The homesteader, with' notice of the fact that it had been transferred, could not pay the contractor anything, but would have to pay the note to the owners thereof, provided 'that in the meantime no mechanic, artisan, or materialman had done any labor on the building or furnished any material therefor, under the circumstances and conditions which entitled him, or them, to a lien under section 37 of article 16 of the Constitution.

The record in this case shows that there would remain in- the hands of Garvin and wife the sum of $19.82, after the claim of Armstrong Bros, had been fully satisfied, and therefore we are of the opinion that the Court of Civil Appeals erred in rendering judgment in favor of Armstrong Bros, against Garvin and wife for an amount including this sum.

We recommend that the judgment of the trial court be so reformed as to reduce the judgment rendered in favor of the defendants in error, Armstrong Bros., against J. W. Gar-vin and wife, Lydia Garvin, as of date the 22d day of February, 1929, when the judgment was rendered in th-e trial court, and that a lien be fixed and foreclosed on the property described in the judgment, and an order of sale issue on said property in favor ■of the plaintiff in error to satisfy said sum of $19.82, with 6 per cent, interest thereon from said date of the judgment, which sum, when-collected, shall constitute a credit on the judgment rendered in favor of the plaintiff in error against the defendant in error, Roh-mer, and that the defendants in error, Armstrong Bros., be adjudged bo pay all costs, and that the judgment of the trial court, as so reformed, be affirmed.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both reformed, and, as reformed, affirmed, as recommended by the Commission of Appeals.


author: LEDDY, J.’ • CURETON, C. J.

text:
    SLATER et al. v. ELLIS COUNTY LEVEE IMPROVEMENT DIST. NO. 9 et al.
    No. 1252-5634.
    Commission of Appeals of Texas, Section B.
    April 1, 1931.

      J. L. Zumwalt, of Dallas, and Tom Whipple, of Waxahachie, for appellants.
    W. P. Dumas and L. S. Stemmons, both of Dallas, and Elcock & Martin, of Wichita, Kan., for appellees.
   LEDDY, J.’

Certified questions from the Court of Civil Appeals for the Tenth Supreme Judicial District. The statement and questions are as follows:

“This suit was instituted by appellee, Ellis County Levee Improvement District No. 9, on the relation of the Brown-Grummer Investment Company, a corporation, under article 8017 of the Revised Statutes', to recover delinquent taxes due on certain land embraced within said levee district for the years 1919 to 1926, inclusive.
“Appellees~airéged that the levee district was duly created under and by virtue of the Acts of the Fourth Called Session of the 35th legislature, known as the ‘Canales Act’; that bonds to the amount of $55,000.00 were duly voted by said district ¿ncTTfiaF the Brown-Orummer Investment Company had purchased and was the owner of said bonds; that the board of supervisors of said district had failed and refused to commence suit to collect the delinquent taxes in said distinct and by reason thereof this suit was instituted. /Appellees alleged that the land owned by appellants on which taxes were due consisted of 177.3 acres out of the Robert' Ray and G. B. McKinstry Surveys, and had been assessed for each of, the years from 1919 to 1926, inclusive, as 119 acres out of theTMc-Kinstry Survey, valuecTanp^SO'.OOi, and 55 acres out of the Ray Survey, valued at $449.00, a total valuation for taxation purposes of $3,190.00. Appellees alleged that for 1919 there was duly and regularly levied by the commissioners court of Ellis county a tax of and at the rate of ,$43.00 on each $100.00 valuation of taxable property located m said levee district; for 1920 at $72.00 on each $100.00 valuation; for 1921 at $55.00 on each $100.00 valuation; for 1922 at $53.00 on each $100l.09 valuation; for 1923 at $62.38 on each $100.00 valuation ; for 1924 at $60.30 on each $100.00 valuation; for 1925 at $53.96 on each $100'.00 valuation, and for 1926 at $63.00 on each $109.09 valuation; a total tax for the eight years- of $20,47R22 on land valued for taxation at |¾1^⅞07 "Ap-pellees specifically alleged that bonds aggregating $55,000;00 were duly issued and sold pursuant to a favorable vote of the qualified property taxpaying voters of said levee district, and an election duly petitioned for and ordered and held within said district for that purpose on the 14th day of June, 1919, and of which election due notice was given by the county clerk of said county, in the manner and for the length of time prescribed by law, and that the returns of Said election were duly made to and canvassed by the commissioners court of Ellis county. It also alleged that the bonds were issued and that same were signed and executed by the county judge and treasurer of Ellis county and approved by the Attorney General of Texas, and registered with the State Comptroller, and thereafter sold to appellee Brown-Orummer Investment Company.
“Appellant, 'in addition to other defenses', specially denied that any legal bonds were ever issued against the levee district, and that the ldvy-trf-the-tax-Tof"the’payment of the interest and sinking fund on said bonds was illegally and wrongfully made, because no legal election was ever held in said levee district for the issuance of bonds. They alleged that while the election was ordered to be held on the 14th of June, 1919', that the officers, judges and clerks, if there were any, who held said election fraudulently made returns with reference thereto which were untrue, and that said election was fraudulently held and returns thereof fraudulently made, and that the commissioners court ■ knew, or at least one member thereof did, that none of the parties who voted at said election were qualified voters within said levee district; that as a matter of fact none of the persons voting in said election were qualified voters within said levee district, and that none of the persons who held said election were residents of or qualified voters witMn said district, and that all of said facts were known to at least one member of the commissioners court of Ellis county at the time the election was' held and the returns canvassed and the bonds ordered issued. They alleged that by reason of the above facts said election was absolutely void and of no force and effect, and that the bonds issued thereunder were void and that the tax levy made against their lands was void.
“Appellees specially excepted to appellants’ allegations above, calling in question' the legality of the bond election in the levee district and the legality of the bonds of said district and the legality of the levy of the tax for the payment of interest and principal,/because same could be attacked only by a quo warranto proceeding brought by the State of Texas, or by someone under its authority, and because appellants could not be heard in a proceeding for the collection o⅛ delinquent taxes to contest a bond election/ since articles 3041 to 3075, inclusive, of the Revised Statutes provide an exclusive method for the contest of a bond election; and further, because appellants’ alleged defense was in the nature of a collateral attack upon the orders of the commissioners court of Ellis county in declaring the result of the bond election and authorizing the bonds issued in compliance therewith. The trial court sustained said special exception of appellee, and appellants present same as ground for reversal in this court.
“Appellants also present as ground for reversal what they term fundamental error, contending that the petition of appellees /Shows on its face that the taxes levied are ^confiscatory and amount to a taking of their property without due process of ’law, in contravention of Amendment 14 of the Federal Constitution and of sectiohs 17 and 19' of the Bill of Rights of the State Constitution, on the theory that appellees’ petition alleges the tax assessed for each year was more than fifty per cent of the value of the property, and for the eight-.years the taxes amount, ^according to said allegations, to six times the value of appellants’ property.
“There is' no statement of facts nor findings of fact with the record. We are sending with this certificate the transcript, and refer the court to the pleadings of the parties for a full statement thereof.
“There being some doubt in our minds as to the correct determination of the above questions, we1 have deemed it advisable to and we do hereby respectfully submit to the Honorable Supreme Court of this state, for its determination upon the facts hereinbe-fore set out, the following questions: •
“First Question.
“Did the trial court err in sustaining ap-pellees’ special exception to that portion of appellants’ answer which set up the fact that no legal bond election was held in said district because the true facts, of which the commissioners court had actual knowledge, were that none of the parties who voted therein were property holders or qualified voters within said district, and because the judges and clerks who held said election were not qualified voters within said district?
“Second Question.
“Since appellees’ pleadings allege that the property was valued for taxation for each of the eight years for which same is delinquent and for which taxes suit is brought, at $3190.00, and further allege that the tax rate as fixed by the commissioners court for each of said years ranged from $43.00' on the $100.00 valuation to $72.00 on the $100.00 valuation, giving the tax rate separately for each year, making a total fax for the eight years of $20,473.22 against/ ia!nd valued for taxation at $3190.00, does same present on its face a taking of appellants’ property without due process of law, in violation of the fourteenth Amendment to the Federal Constitution, or in violation, of sections 17 and 19 of the Bill of Rights of the State Constitution?
“Third Question.
“If question No. 2 is answered in the affirmative, then do said pleadings present such fundamental error apparent of record, Which would authorize this court to reverse the judgment of the trial court by reason thereof? ”

The remedy given by the statutes (articles 3041 to 3075) for contesting elections of this character for irregularities or fraud is exclusive of all others. State v. Bank of Mineral Wells (Tex. Civ. App.) 251 S. W. 1107, 1113 (writ refused); Wilmarth v. Reagan (Tex. Com. App.) 242 S. W. 726; Robertson v. Haynes (Tex. Civ. App.) 190 S. W. 735; Parker v. Harris County Drainage District (Tex. Civ. App.) 148 S. W. 351.

Appellants have frankly conceded in the argument in this court that this question was determined adversely to their contention by the Court of Civil Appeals in the case of State v. Bank of Mineral Wells, above cited, in which a writ of error was denied by the Supreme Court. They assert, however, that the court, in deciding that ease, failed to take into consideration the provisions of article 8010, R. S. 1925, which in effect provides that, after bonds' have been issued by a levee district, approved by the Attorney General, and registered with the comptroller, in every action \brought to enforce their collection, a taxpayer may urge either forgery or fraud as a defense against the validity thereof. Under this provision it is claimed that they are entitled in a suit against them to recover delinquent taxes to maintain the defense that the election for the issuance of the bonds was fraudulently conducted.

Articles 8041 to 3075, outlining the procedure for the contesting of elections, as well as' article 8010, were adopted as a part of the Code of 1925. These statutes being enacted by the same Legislature, relating to the same subject-matter, should be so interpreted as to harmonize their provisions, if such a construction be fairly justified. Southern Pac. Co. v. Sorey, 104 Tex. 476, 140 S. W. 834; Conley v. Daughters of the Republic, 106 Tex. 80, 156 S. W. 197, 157 S. W. 937.

To construe article 8010 as permitting the contesting of elections of this kind for fraud in the conducting of same in a suit to recover delinquent taxes would bring it in conflict with the provisions of the statutes establishing a method for ‘the contesting of elections, as under such statutes fraud or any other irregularity is made the basis for the contest therein provided.

Article 8010 is susceptible of a construction which will not conflict with the statutes outlining procedure for contesting bond elections, and that is the fraud, permitted as a defense in a suit by the bondholders was intended to refer to fraud occurring subsequent to the bond election in the issuance, sale, or delivery of the bonds. It is a well-known fact that there have been a number of cases where fraud has been perpetrated by officials of counties and districts in the issuance, sale, and delivery of bonds voted by the taxpayers. The Legislature, knowing this fact, doubtless intended to give interested property holders the right to defend in a suit to enforce the collection of a tax against their property where such fraud had been committed, as such a defense could not be made under the statutes providing for an election contest.

This view as to the legislative intent in enacting this article is strengthened when consideration is given to the fact that the Legislature in 1909 passed a similar statute with reference to bonds of various districts (now article 2670, R. S. 1925). The latter statute had been construed by our appellate courts prior. to the time the Legislature enacted the statute now under consideration to foreclose the right of property holders to contest an election for the issuance of bonds upon any grounds except in the manner provided for election contests. Under these circumstances it must be presumed that article 8010 was passed with the intent that its effect would be the same as that given by the courts to a previous enactment of similar import. Cooper v. Yoakum, 91 Tex. 391, 43 S. W. 871; Bonner v. Hearne, 75 Tex. 242, 12 S. W. 38.

Again, no sound reason can be advanced why the Legislature should discriminate in favor of property holders in levee districts by according them a privilege which it has denied property holders in all other districts whose rights might be similarly affected. Such an unreasonable construction should not be given- this statute in the absence of compelling language. Stone v. Hill, 72 Tex. 540, 10 S. W. 665; St. Louis S. W. R. Co. v. Tod, 94 Tex. 632, 64 S. W. 778.

The second question certified presents the proposition that the taxes levied against appellant’s land appear, from the face of their petition, to be so excessive as to show a taking of property without due process of law, in violation of the provisions' of both state and federal Constitutions.

The mere fact that taxation imposed, or authorized to be imposed, by the Legislature, is oppressive and confiscatory, presents no ground for judicial interference, where no constitutional restriction exists upon the taxing power, McCulloch v. Maryland, 4 Wheat. 316, 4 L. Ed. 579; State v. Board of Com’rs of Marion County, 170 Ind. 595, 85 N. E. 513; Judy v. Beckwith, 137 Iowa, 24, 114 N. W. 566, 15 L. R. A. (N. S.) 142, 15 Ann. Cas. 890; North Mo. R. R. Co. v. Maguire, 49 Mo. 490, 8 Am. Rep. 141.

The principle announced in these cases is well stated in Ruling Case Law, vol. 26, § 17, in this language: “One of the principles first laid down by the supreme court of the United States with respect to the power of taxation was that the power to tax involves the power to destroy. * ⅜ * Since the taxing power conferred by the constitution knows no limits except those expressly stated in that instrument, it must follow that if a tax be within the lawful power, the exertion of that power may not be judicially restrained because of the results to arise' from its exercise.”

As said in McCulloch v. Maryland, the only security against an abuse of the power of taxation, when the same is not limited by constitutional provision, is found in the structure of the government itself, in that, in imposing or authorizing the imposition of a tax, the Legislature acts upon its constituents.

Under the terms of the Conservations. Amendment (Const, art. 16, § 59a) there is no limit to- the amount of taxes which may be imposed to secure the payment of bonds authorized to be issued by a majority vote of the property taxpayers of a levee district operating thereunder. When bonds have been voluntarily voted by the taxpayers of such a district, at an election held in accord-, anee with the statutes, those purchasing the bonds are entitled to have taxes levied in sufficient amount to pay the principal and interest according to the terms thereof. If the tax necessary to be levied to mature such bonds is oppressive and. operates to confiscate property situated in such district, this unfortunate result is due to a failure of the people to place some restriction in the Constitution limiting the amount of bonded indebtedness which the Legislature might authorize thereunder and to the voluntary action of the majority of the property holders residing within the district in voting an amount of bonds which would require the levying of taxes to such an extent as to operate to deprive them of their property. The courts are without authority to fix, a limit upon the power of the people or the Legislature to levy taxes for lawful purposes where the organic law has placed no restriction thereon.

Appellants assail the Canales Act (Acts 35th Leg., 4th Called Sess. [1918] e. 25), under the authority of which the bonds were issued, as being unconstitutional and void. We are not authorized to pass upon this question, as in answering certified questions we are confined to a consideration of the questions submitted in the certificate of the Court of Civil Appeals. Berlin Iron Bridge Co. v. City of San Antonio, 92 Tex. 388, 49 S. W. 211; Snyder v. Baird Ind. School Dist., 102 Tex. 4, 111 S. W. 723, 113 S. W. 521; Clary v. Hurst, 104 Tex. 423, 138 S. W. 566.

We recommend that the first and second questions be answered in the negative, which renders unnecessary an answer to the third question.

• CURETON, C. J.

Opinion answering certified questions adopted, and ordered certified.


author: MORROW, P. X

text:
    HENLY v. STATE.
    No. 14209.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    S. F. Hill, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. X

The offense is robbery; punishment fixed at confinement in the penitentiary for a period of fifty years.

The indictment appears regular and regularly presented. No faults in the procedure (have been perceived and none are pointed out by bills of exception or otherwise. The facts heard by the trial court are not brought úp for review.

The point made in the motion for new trial that the verdict is excessive is one that is not ordinarily available upon appeal. See Shuffield v. State (Tex. Cr. App.) 18 S.W.(2d) 640; Wagner v. State, 87 Tex. Cr. R. 47, 219 S. W. 471; Allen v. State (Tex. Cr. App.; 21 S.W.(2d) 527, 528. This principle has special application in the present instance for the reason that the accused has not seen proper to bring before this court the facts upon which the verdict was rendered.

The sentence condemns the appellant to suffer confinement in the penitentiary for a period of not less than five nor more than fifty years.

The judgment is affirmed.


author: HAWKINS, J. LATTIMORE, J.

text:
    LAWRENCE v. STATE.
    No. 14012.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Rehearing Denied April 1, 1931.

      W. R. Smith, Jr., of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for the transportation of intoxicating liquor; punishment being three years in the penitentiary.

The state’s evidence, showed that appellant had made arrangements with a negro woman to let him store intoxicating liquor in her house, and that he frequently brought it there in large quantities and would take it away in smaller amounts. The evidence was ample to show that appellant transported the liquor.

It is suggested in appellant’s brief that the evidence failed to show venue; that is, that- there is no evidence showing the offense to have been committed in Travis county. It is sufficient answer to say that no such issue was made in the court below and under the terms of article 847, C. C. P., it cannot now be raised in this court.

The only bill of exception brought forward is upon a claim that a prejudiced juror sat in the case. The motion for new trial was overruled on the 16th day of July, at which time notice of appeal was given and the court entered an order granting sixty days from that date in which to file statement of facts and bills of exception.. The sixty days expired on the 14th day of September. No further extension order was made prior to the expiration of the sixty •days. On the 14th day of October and after the trial term of court had adjourned, the count entered an order extending the time bo ninety days. This court has repeatedly held that an order made after the time of the first extension has expired is unauthorized and without effect. Leago v. State, 112 Tex. Cr. R. 39, 13 S.W.(2d) 852; Ibeck v. State, 112 Tex. Cr. R. 287, 16 S.W.(2d) 232. This is no new holding of the court. Some of the •older cases will be found cited .in the opinions in the cases mentioned. The bill in the present case was not filed until the 14th day of October. Dor the reasons given, it cannot be considered.

The verdict of the jury specifically found appellant guilty under the second count of the indictment, which charged him with the transportation of intoxicating liquor. By oversight the judgment did not follow the verdict, but adjudged appellant to be guilty of possessing intoxicating liquor for the purpose of sale. The sentence is likewise faulty in that it followed the judgment. The judgment and sentence will be reformed to show that appellant was adjudged to be guilty of transporting intoxicating liquor and sentenced for'the same offense.

As thus reformed, the judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant moves for rehearing upon two grounds, viz.: That we erred in not upholding his contention that the venue was not proved in this case, and in giving effect to the statutory presumption where the question was not raised on the trial; also that we erred under the facts in this ease as developed by the record, in reforming a judgment in a case in which conviction was had upon one count and the judgment and sentence followed a different count in the indictment. We have again examined the record with a view of ascertaining if the issue of venue was raised upon the trial. We find that appellant presented a requested charge for a peremptory instruction of acquittal, but in the charge he sets out no ground or reason for such request. In his motion for new trial he does set out that the reason he presented such request for said peremptory instruction was that the venue1 was not proved. This court has often held that unless the issue óf venue was raised prior to the filing of the motion for new trial, the presumption in favor of-the proof of venue will be indulged. Tullos v. State, 99 Tex. Cr. R. 551, 279 S. W. 1021; Brown V. State, 71 Tex. Cr. R. 353, 162 S. W. 339; Thompson v. State, 72 Tex. Cr. R. 6, 160 S. W. 685.

The rule uniformly adhered to by this court for many years has been that of reforming judgments where there are two counts in the indictment and a verdict is rendered specifying that the accused is found guilty of the offense charged in one, but the judgment and sentence, or either, follows the other count. The case of Small v. State (Tex. Cr. App.) 38 S. W. 798, cited and relied upon by appellant in his motion, was overruled in Pearson v. State, 96 Tex. Cr. R. 453, 254 S. W. 953, 257 S. W. 895.

The motion for rehearing will be overruled.


author: CHRISTIAN, J.

text:
    ODNEAL v. STATE.
    No. 13977.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    See, also, 34 S.W.(2d) 595.
    Simpson, Collins & Moore and Leo Brewster, all of Fort Worth, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin; for the State.
   CHRISTIAN, J.

The offense is murder; the punishment, confinement in the penitentiary for five years.

The state relied upon circumstantial evidence to show that appellant killed A. C. Fentriss by shooting him with a pistol. Appellant, deceased, Philo Hooper, and several others were having a party at Lake Worth. It appears that’they were drinking whisky. Appellant and Ethel Martin were sitting in an automobile. Deceased approached the car. and requested Ethel Martin to leave appellant’s company. The parties had a quarrel. A difficulty ensued, in which it appears from the state’s testimony that appellant and Philo Hooper attacked deceased. Deceased ran away from the car. A shot fired by some one struck deceased, resulting in his death. No witness would testify that either appellant or Philo Hooper fired the shot. A witness for appellant testified that appellant did not fire the shot which killed deceased. Appellant did not testify in his own behalf.

Appellant and Philo Hooper were charged by separate indictments with the murder of A. C. Fentriss. The cases against each of the parties were set for trial on the same date, and a special venire of 250 men had been summoned and was present in each case on the day of appellant’s trial. The witnesses in the cases against the parties were the same, and were also present in court. Appellant timely and properly presented a ’motion for severance in statutory form, asking that his codefendant, Philo Hooper, be tried first. Philo Hooper joined appellant in the motion. ' The granting of the severance would not have operated as a continuance, as the co-defendant Hooper was ready for trial. At a previous term of the court, Philo Hooper had filed an application for severance, requesting that appellant be first placed on trial. Appellant had joined Hooper in his application. The motion being granted, the case against Hooper was continued. Both cases were then set for trial on March 24, 1930. The court appears to have overruled the application on the theory that, having severed at a former term, it was res adjudicata, and another severance could not be had. In denying the right to sever, the court fell into error. We quote from Brooks v. State, 42 Tex. Cr. R. 347, 60 S. W. 53, as follows:

“Upon the former trial severance was had at the request of the parties, there being three indicted, and appellant placed upon trial, and the case dismissed as to co-defendant Maggie Rose. When the case was called for trial, resulting in this conviction, another motion was made for severance, supported by an affidavit to the effect that it was believed there was not sufficient testimony against co-defendant A. B. Brooks to justify his conviction, and that his testimony was wanted, in case of his acquittal, for appellant on his trial. The severance was refused on the ground that, having severed at the previous trial, it was res adjudicata, and another severance could not be had; that is, by once exercising their statutory right of severance, they were thenceforth, in all subsequent trials, bound by that severance. We do not understand this to be a proper construction of the statute. The severance is granted for the trial. Upon "subsequent trials the. parties would have the right to change the order of trial, if in their judgment they thought it was to their interest. If the doctrine of res adjudicata would apply in this character of case, it would also in applications to change venue.”

The doctrine laid down in Brooks v. State, supra, was expressly approved in Wallace v. State, 48 Tex. Cr. R. 318, 87 S. W. 1041, and Young v. State, 84 Tex. Cr. R. 232, 206 S. W. 529.

The state placed on the witness stand several witnesses who had theretofore given testimony before the grand jury touching the transaction resulting in the homicide. When called upon to testify, these witnesses gave testimony at variance with that contained in the statements they had signed when before the grand jury. Before the witnesses testified, the district attorney was advised that the testimony the witnesses would give would not be in harmony with that given when they were called before the grand jury. After having given testimony at variance with their former statements, the state claimed surprise, and was permitted, over timely and proper objection by appellant, to introduce' the statements made before the grand jury for the purpose of impeaching the witnesses. In the state of the record, the state could not urge surprise. It is the rule that the state will not be permitted to put a witness on the stand, knowing that the testimony would ,be adverse, in order to get in another statement which would be beneficial to the state. Perrett v. State, 75 Tex. Cr. R. 94, 170 S. W. 316; Hollingsworth v. State, 78 Tex. Cr. R. 489, 182 S. W. 465.

The procedure followed by the state in impeaching the wife of the codefendant by statements made before the grand jury raises a serious question. As the matter is not likely to arise on another trial, we deem it unnecessary to discuss the question.

For the errors discussed, the judgment is reversed and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


text:
    OVERMAN v. STATE.
    No. 13877.
    Court of Criminal Appeals of Texas.
    March 18, 1931.
    Hiram. K. Aynesworth and Jos. H. Aynes-worth, both of Stinnett, and Black & Graves, of Austin, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for three years.

Sam Mays, a state ranger, testified that he bought some whisky from appellant at appellant’s place of business. Appellant admitted that the witness was in his place of business, but denied that he sold him any whisky.

Bill of exception No. 26 presents the following occurrence: W. M. Johnson, a witness for appellant, testified that he was present on the occasion the witness Mays was in appellant’s place of business, and that appellant made no sale of whisky to said witness. The court certifies in the bill of exception as follows: “And be it further remembered that there was no evidence in the record in this cause that the witness W. M. Johnson had ever bought any whisky from the defendant, V. E. Overman, nor was it charged or alleged in the indictment that the witness W. M. Johnson had ever, bought any whisky from the defendant V. E. Overman.”

In his closing argument, the district attorney used language as follows: “I say this, if the honest-to-God truth was known in this cause from the facts and circumstances that reflects the true situation, that Bill Johnson (meaning W. M. Johnson) has bought enough liquor from this defendant that if he was given a day for every di-ink that he has bought this defendant would be in the pen for the rest of his life.”

Appellant timely and properly objected to the foregoing remarks on the ground they were not in reply to any argument made by counsel for appellant; that there was no evidence that the witness Johnson had ever bought any whisky from appellant; that said remarks were prejudicial, outside of the record, and constituted the unsworn testimony of the district attorney. He also presented his written requested instruction wherein the jury would have been advised not to consider sucb remarks for any purpose. The court declined to give -the written charge. When the objection to the argument was made, the court used language as follows: “Judge Aynesworth (addressing appellant’s counsel), I think that is a matter of logical deduction from the argument. I will state, gentlemen, as to this objection, and to the previous objections and any -other matters that may arise during the balance of this trial that argument is not testimony and you gentlemen should be governed by the testimony, and not by statements and deductions and inferences that may be made during the argument by the counsel. That is just in line with the arguments and you will not consider that on either side save and except as argument and their views, but you will be governed by the testimony and the facts and circumstances in the case.”

In this connection, the court further stated to the jury: “As I have before instructed, gentlemen, you will not take into consideration these objections (meaning the objections of counsel). I will not limit counsel on either side for they have a right to draw inferences from the testimony, but I will ask counsel (meaning the district attorney) to confine himself to the record. Gentlemen, I again instruct you that consideration of argument of counsel of course is not testimony. You will be governed in the decision of this case by the testimony and the facts and circumstances in the evidence.”

After the testimony had been closed, the court orally instructed the jury as follows: “Gentlemen, there have been several objections on both sides about argument of counsel, objections to certain phases of it. I again refresh your mind now that you are to decide, the ease under the law and. the evidence and that argument of counsel, that represents their views and their deductions from the testimony, and you will be governed by the law and fact and testimony in the case.”

We deem the oral instruction of the court inadequate to withdraw the remarks from the jury. In stating to appellant’s counsel that the remarks of the district attorney constituted a matter of logical deduction, the trial judge, in effect, advised the jury that there were facts and circumstances in evidence warranting the argument that the witness Johnson had purchased intoxicating liquor from appellant on many occasions. There was no evidence in support of the statement of the district attorney. Hence the argument was in effect the unsworn testimony of the district attorney that the witness habitually bought whisky from appellant. The argument had the double effect of impeaching the witness and charging appellant with offenses for which he was not upon trial. If the jury had believed the testimony of the witness Johnson, they would have acquitted appellant. The opinion is expressed that the remarks' were obviously prejudicial to the rights of appellant. A penalty two years in excess of the minimum was assessed. Ayers v. State (Tex. Cr. App.) 27 S.W.(2d) 540; Thomas v. State, 109 Tex. Cr. R. 578, 6 S.W. (2d) 118.

The indictment contained two counts, one charging a sale of whisky to the witness Mays and another containing appropriate allegations charging possession of intoxicating liquor for the purpose of sale. The transaction relied upon by the state occurred on January 27th. The witness Mays testified, over appellant’s objection, that he had also purchased intoxicating liquor from appellant on January 4th. Appellant sought to have the transaction occurring on January 4th withdrawn from the consideration of the jury. It is unnecessary for us to decide whether the refusal of the court to withdraw the testimony touching such transaction was error. We call attention, however, to the rule -that, where the prosecution is for possessing intoxicating liquor for the purpose of sale, proof- of sales, not too remote, is relevant on the purpose for which the liquor is possessed. Jenkins v. State, 113 Tex. Cr. R. 628, 23 S.W.(2d) 354. If another trial be had, appellant will necessarily be tried for selling intoxicating liquor on January 27th, he having been acquitted of the count charging possession of intoxicating liquor for the purpose of sale. The sole question then will be, Did the appellant sell the whisky to Mays? If the testimony touching the transaction is the same upon another trial as disclosed by the record upon this appeal, proof of the sale of intoxicating liquor on January 4th, if properly objected to, should be rejected. In the case of Copeland v. State, 99 Tex. Cr. R. 659, 271 S. W. 91, the witness testified that he had bought intoxicating liquor from -the accused. The accused denied the transaction. The state was permitted, over objection, to prove by the witness that on a dozen or more prior occasions the accused had sold him the same kind of intoxicant. In holding that the testimony of previous sales was inadmissible, Judge Lattimore used language as follows: “The bill complaining of this matter is approved with a qualification by the learned trial judge that this was admitted for the purpose of showing system. In Long’s Case, 39 Tex. Cr. R. 537, 47 S. W. 363, appears this court’s rejection of the doctrine that the state might prove separate similar crimes against the accused, on the theory of system, unless same appeared necessary to rebut a claim of good faith, lack of evil intent, etc. The books are full of similar holdings. The matter was erroneous.” See, also, Todd v. State, 101 Tex. Cr. R. 425, 275 S. W. 1013.

Because of the improper argument on the • part of the district attorney, the judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the court.


author: HAWKINS, J.

text:
    SPANGENBERG v. STATE.
    No. 14094.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for selling intoxicating liquor, punishment being one year in the penitentiary.

The indictment alleged a sale to J. M. Simpson. He was the only witness used by the state. He testified that he bought from appellant a pint of whisky. Appellant and his wife denied it.

In his motion for new trial appellant averred misconduct of the jury in receiving other evidence after their retirement. No evidence on the trial suggested any other sale of liquor by appellant than the one for which he was on trial, or that he was charged with any .other sales. Four jurors testified on a hearing of the motion for new trial (all of them being called by appellant) that, while the jury stood some for conviction and some for acquittal, some juror stated in the presence of the other jurors that appellant had been charged with other sales of liquor, and that other cases were then pending against him for violation of the liquor laws. The. state called no jurors to combat evidence of the four.

The authorities are numerous and all one way on the subject. See McDougal v. State, 81 Tex. Cr. R. 179, 194 S. W. 944, L. R. A. 1917E, 930; Briscoe v. State (Tex. Cr. App.) 27 S.W.(2d) 190; Tubb v. State (Tex. Cr. App.) 25 S.W.(2d) 339. For collation of other cases, see Branch’s Ann. Tex. P. C., § 560, page 289.

Where the evidence is undisputed on an issue of misconduct of the jury as in this case, a new trial should be promptly granted. The delay incident to an appeal which can only result in a reversal seems uncalled for.

The judgment is reversed and the cause remanded.


author: LATTIMORE, J.

text:
    MERKEL v. STATE.
    No. 14231.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Rehearing Denied April 8, 1931.
    A. G. Mueller, of Llano, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

We find in the record no bills of exception. We have carefully examined the facts. Appellant, in company with three other young people, drive quite a distance on a public .road. At some point on the journey he produced a bottle of whisky, of which each of the others partook. We have no doubt of the sufficiency of the testimony to support the judgment of conviction. It is expressly provided by our statute that a cotransporter of liquor is not an accomplice in such sense as that a conviction cannot be had upon his uncorroborated testimony. Each of the three young people in the car with appellant testified to his transportation of the liquor in question.

The judgment will be affirmed.


author: MORROW, P. J. LATTIMORE, J.

text:
    THOMPSON v. STATE.
    No. 13912.
    Court of Criminal Appeals of Texas.
    Feb. 25, 1931.
    Rehearing Denied April 8, 1931.
    John W. Hill, of Uvalde, and T. B. Ridgell, of Breckenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   MORROW, P. J.

The unlawful sale of intoxicating liquor is the offense; penalty, confinement in the penitentiary for one year.

Lloyd Ellingwood is named as the purchaser. He testified that he purchased a pint of whisky from the appellant and paid him for it; that the transaction took place on the 5th day of April, 1930. Another witness testified to substantially the same effect.

By witnesses introduced, the appellant set up the defense of alibi.

We find no bills of exception; nor does the record present for review any matter other than the sufficiency of the evidence. The conflict in the evidence was settled by the verdict of the jury.

The judgment is affirmed.

On Motion for Rehearing.

LATTIMORE, J.

Appellant insists that the testimony in his behalf so far overcame the criminating testimony of the state as to make it appear that the verdict was the result of passion or prejudice, and that his motion for rehearing should be granted. The testimony has been again considered. A young man testified positively to the fact that in the early part of April, on Sunday, he bought whisky from appellant, paying him therefor. Another young man testified that he accompanied the alleged purchaser to a point near appellant’s place, and knew that, when said purchaser went to the house, he did' not have any whisky, but that, when he came back, he did have a bottle. This was substantially the state’s testimony. Appellant introduced several witnesses, among them his daughter and son-in-law, and these parties testified that appellant was not at his home on the first Sunday in April. The fixing of dates as to past events, in the absence of some memoranda or written testimony fixing same, is a very difficult matter, and one in ordinary cases about which the courts are not much concerned. The state’s testimony shows positively a sale by appellant in early April. Whether this was the first Sunday in April or another Sunday would be of little moment. The jury heard the witnesses and passed upon their credibility. We are not inclined to think the original' opinion erroneous.

The motion for rehearing will be overruled.


text:
    WARD v. STATE.
    No. 14199.
    Court of Criminal Appeals of Texas.
    March 25, 1931.
    Baker & Baker, of Coleman, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for two years.

Sam C. Mays, a state ranger, testified that he went to appellant’s place of business in Coleman and bought from appellant a pint of whisky, paying him therefor $3. Testifying in his own behalf, appellant denied that he sold whisky to the witness. Appellant’s wife gave testimony tending to corroborate appellant.

Prior to his trial in the present case, appellant had been convicted in the district court of Coleman county in another case of the offense of selling intoxicating liquor. The case was then on appeal to this court, and judgment of conviction therein had not been made final. Over appellant’s proper objection, lie was required to testify on cross-examination by the state that he had been convicted in the district court of Ooleman county of selling whisky. The court and the district attorney were aware that the judgment of conviction had been appealed from and had not been made final. This testimony was left with the jury until the general charge of the court was delivered, at which time the jury were advised by the court in said charge that the testimony touching the previous conviction could not be considered for any purpose. Appellant’s objection to the testimony should have been sustained. We quote the language of Judge Ramsey in Jennings v. State, 55 Tex. Cr. R. 147, 115 S. W. 587, 588, as follows: “In this ease it appears, and is shown by the record as a fact, that the conviction of the appellant had been appealed from, and that the matter was then pending in this court.. It is settled that such appeal suspended the judgment, and that it was in no sense final. Whatever might be the rule, if the judgment of conviction had been final, it would seem necessarily to follow that, in case of conviction, where an appeal had been taken, this fact of conviction in another case should not be used against an appellant. If it were not the rule, then if tte state in any manner had once secured a conviction, right or wrong, whether subject to reversal or not, and whether ultimately reversed or not, until such action had been taken, the illegal conviction could be used before the jury, not only for the purpose of discrediting the defendant, but as well as original evidence of his guilt. This . is not the law.” See, also, Cox v. State, 81 Tex. Cr. R. 90, 194 S. W. 188. The withdrawal of the testimony did not cure the error. Mr. Branch, in his Annotated Texas Penal Code, § 383, says: “If the illegal testimony admitted over the objection of the defendant was of a material character and was calculated to influence or affect the jury adversely to defendant, the withdrawal of same will not cure the error in admitting it.” Many authorities are collated under this proposition. See Williford v. State, 36 Tex. Cr. R. 414, 37 S. W. 761; Wade v. State, 88 Tex: Cr. R. 372, 227 S. W. 489. See, also, Edmondson v. State, 106 Tex. Cr. R. 321, 292 S. W. 231; Jordan v. State, 111 Tex. Cr. R. 83, 11 S.W.(2d) 323. It may be added that the penalty assessed against appellant was one year in excess of the minimum.

. The judgment is reversed, and the cause remanded.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of ✓ the Court of Criminal Appeals and approved by the court.