author: CLAY, Commissioner.

text:
    Paul Edward ROSE, Appellant, v. COMMONWEALTH of Kentucky, Appellee.
    Court of Appeals of Kentucky.
    Sept. 29, 1967.
    Rehearing Denied Jan. 19, 1968.

      Ronald G. Polly, Combs & Polly, Whites-burg, for appellant.
    Robert Matthews, Atty. Gen., Howard E. Trent, Asst. Atty. Gen., Frankfort, for ap-pellee.
   CLAY, Commissioner.

Defendant was convicted of voluntary manslaughter and sentenced to 21 years in the penitentiary. Several grounds for reversal are urged.

Defendant was tried on October 6, 1966. The day before, in the presence of the entire jury panel, in calling the criminal docket the trial judge called Indictment No. 7990-F, which was a criminal charge against appellant for selling mortgaged property. Defendant was in the back of the courtroom and he stood when his name was read. The nature of the charge against him was not read and defendant made no response. The Commonwealth’s attorney advised the court of the pendency of the present action, and with leave of court dismissed the witnesses who had been called on the other charge.

Defendant contends the calling of the other indictment the day before in the presence of the jury panel was prejudicial and reversible error, relying principally upon Turpin v. Commonwealth, Ky., 352 S.W.2d 66. In that case we recognized that conduct of the trial judge or the Commonwealth’s attorney which, within hearing of the jury, reveals such matter as would be condemned if disclosed by testimony would constitute sufficient reason for reversing the judgment. However in that case the opinion states that the calling of another indictment and the comments of the Commonwealth’s attorney with respect to the nature of the other charge and the defendant’s potentially dangerous character made it “impossible to believe they (the jury) might not have been influenced to the detriment of appellant when they rendered their verdict” (page 67 of 352 S.W.2d).

We do not find the conduct here to be of the prejudicial character considered in the Turpin case. The nature of the charge was not made known to the jury and there is no indication that the jury panel was in any way cognizant of this incident. Particularly in view of the nature of this case, the evidence presented, and the verdict, we have no reason to believe that the routine calling of another indictment against defendant the day before could have had any prejudicial influence on the jury. The trial court did not err in denying defendant a continuance on this ground.

This is a case of an admitted killing. Defendant claimed self-defense. He and the deceased, who was staggering drunk, engaged in an altercation. Defendant left, went home, procured a loaded pistol and returned to the scene. A scuffle ensued and defendant retreated. As the deceased approached in pursuit, defendant pulled out his gun and fired two shots at the deceased from a distance of about nine feet. The second shot was the fatal one. Defendant contends he was entitled to a directed verdict because the deceased was the aggressor and he was justified in killing him in self-defense. However, since the deceased was not armed, the significant question was presented as to whether defendant had reason to believe his life was in danger or that he would suffer serious bodily harm. No one has the right to kill another for a threatened simple assault. Sikes v. Commonwealth, 304 Ky. 429, 200 S.W.2d 956. Defendant must have a reasonable belief of imminent danger and there must be a necessity or reasonable judgment of necessity to kill in order to avert that danger. See Martin v. Commonwealth, Ky., 406 S.W.2d 843. A jury could properly conclude that defendant had no reason to believe himself in serious danger or there was no apparent necessity for the killing. Certainly this was not a clear case of self-defense justifying a directed verdict.

It is next contended the court permitted improper cross-examination and required defendant to incriminate himself. Defendant took the stand. He admitted he had gone home and procured a pistol and “put it under my belt”. On cross-examination he was asked if he pulled his shirt down over it; to which he replied, “I put it under my shirt”. Defendant contends that this required him to incriminate himself, contrary to his constitutional rights, because it was evidence of another unrelated criminal offense, i. e., carrying a concealed deadly weapon. Obviously defendant’s conduct just prior to the killing was so closely related to it that it was a pertinent part of the res gestae. See Kemp v. Commonwealth, 314 Ky. 57, 234 S.W.2d 144. Where such evidence is relevant, even though it shows another offense, the defendant who testifies in his own behalf cannot claim the privilege against self-incrimination. Wharton’s Criminal Evidence (12th Ed.) section 731 (page 40).

In addition, if the admission of this evidence was error, it was not prejudicial. It is doubtful it occurred to anyone in the courtroom that defendant’s statement that he pulled his shirt over his pistol (because it was raining) was an admission of a criminal offense. It would be stretching things entirely too far to assume the jury convicted defendant of voluntary manslaughter in a rather clear case because of what he did with his shirttail.

It is further contended that a murder instruction should not have been given. The fact that defendant returned to the scene of an altercation with a loaded pistol was sufficient to present the issue of whether he came back with a specific intent to kill the deceased. In addition this instruction was not prejudicial even if improperly given since defendant was convicted of voluntary manslaughter. Jennings v. Commonwealth, Ky., 349 S.W.2d 828.

Defendant finally contends the court in its instructions improperly failed to define “sudden affray”. This is not required. Wooten v. Commonwealth, 299 Ky. 598, 186 S.W.2d 652.

The judgment is affirmed.

All concur.


source: Caselaw Access Project

author: CULLEN, Commissioner.

license: Public Domain

text:
    BULLITT COUNTY, Kentucky, Appellant, v. J. M. STOUT et al., Appellees.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    Thomas B. Givhan, J. Chester Porter, Shepherdsville, for appellant.
    Athol Lee Taylor, Shepherdsville, for ap-pellees.
   CULLEN, Commissioner.

The county attorney of Bullitt County undertook to appeal to the circuit court from an order of the fiscal court of the county allowing a claim of the appellees herein for building a bridge. He filed in the circuit court a pleading (designated simply “Appeal”) setting forth the grounds of alleged invalidity of the order, and attached to it a photographically reproduced copy of a certified copy of the order. The circuit court entered judgment dismissing the appeal on the ground that CR 72.01 is applicable to such an appeal; it requires the filing of a certified copy of the judgment of the court appealed from; and the filing in this instance of a photographic reproduction was not a compliance.

The county attorney has appealed to this court from the order of dismissal, contending, first, that CR 72.01 does not apply to appeals from fiscal courts, and, second, even if it does, the filing of a photographic reproduction of a certified copy is a substantial compliance with the requirement of the filing of a certified copy.

Section 724 of the former Civil Code, which was the forerunner of CR 72.01, did not in terms apply to appeals from the fiscal court to the circuit court, but as early as 1905, in Jefferson County v. Young, 120 Ky. 456, 86 S.W. 985, and as late as 1939, in Leslie County v. Hensley, 276 Ky. 679, 125 S.W.2d 255, it was held that' the section did apply to such appeals. It appears to us that the same reasons which impelled such holding dictate a similar holding as to CR 72.01. In fact, if the provisions of CR 72.01 to 72.07 were held not to apply to appeals from fiscal courts there simply would be no available form of procedure to effectuate the right of appeal from such courts that is granted by KRS 23.030(1). Accordingly, we hold that CR 72.01 is applicable to appeals from fiscal courts.

As concerns the question of the filing of a photographically reproduced copy of a certified copy, we see no reason in the instant case for acceptance of this as a substantial compliance. No reason is shown why the filing of a certified copy in its original form would have been even inconvenient, much less burdensome or impossible. As far as this record shows the filing of the photographic reproduction was by casual choice rather than by any necessity.

In Oertel v. Louisville and Jefferson County Planning and Zoning Commission, Ky., 251 S.W.2d 275, this court held that the provision of an appeal statute requiring the filing of a certified copy of the decision appealed from was mandatory and jurisdictional. That ruling seems fully applicable to the facts of this case.

The judgment is affirmed.

All concur.


author: STEINFELD, Judge.

text:
    Ed REA, Gallatin County Judge, et al., Appellants, v. The GALLATIN COUNTY FISCAL COURT, Dave McGill, State Local Finance Officer of the Department of Finance, and Felix Joyner, Commissioner of the Department of Finance, Appellees.
    Court of Appeals of Kentucky.
    Dec. 8, 1967.

      John G. Wright, Warsaw, for appellants.
    Robert Matthews, Atty. Gen., Henri L. Mangeot, Deputy Atty. Gen., William S. Riley, Asst. Atty. Gen., Hunter B. White-sell, Charles D. Wickliffe, Attys., Dept, of Finance, Frankfort, for appellees.
   STEINFELD, Judge.

Appellants, Ed Rea as the County Judge, John G. Wright as County Attorney and J. B. Kinney as Citizen Member comprise the County Budget Commission of Gallatin County. KRS 68.230. To obtain a declaration of rights they sued the Gallatin County Fiscal Court, the State Local Finance Officer of the Department of Finance and the Commissioner, Department of Finance of the Commonwealth of Kentucky, who are the appellees. CR 57. Appellants contended that KRS 68.245 enacted as a part of House Bill No. 1 of the 1965 Extraordinary Session of the General Assembly violates Section 157 of the Constitution óf Kentucky and that if it is not unconstitutional it did not restrict the Fiscal Court. From a judgment adverse to those claims this appeal is prosecuted. We affirm.

The pleadings raised only the issue “That Section 157 of the Kentucky Constitution of 1891, provides the limit of ad valorem taxes which a county may levy, and this limitation is one addressed to the General Assembly as well as the Fiscal Court; * * * That * * * House Bill No. 1 violates the said Section 157 * * * ”.

Section 157 reads in part:

“The tax rate of cities, towns, counties, taxing districts and other municipalities, for other than school purposes, shall not, at any time, exceed the following rates upon the value of the taxable property therein, viz.: * * *; and for counties and taxing districts, fifty cents (5(⅝) on the hundred dollars ($100.00) * * *

In Russman v. Luckett, Ky., 391 S.W.2d 694 (1965) and companion cases, we held that Section 172 of the Constitution required that property be assessed for tax purposes at its fair cash value. The 1965 Extraordinary Session of the General Assembly enacted House Bill No. 1 (Chapter 2, Acts of the First Extraordinary Session of 1965). KRS 68.245. A purpose was to adjust property tax revenue of local governments to avoid inequities which might have resulted from the full assessments of property.

We quote the parts of KRS 68.245 about which this controversy arises:

“(1) Notwithstanding any statutory provisions to the contrary, no county budget commission shall submit a budget which would require more revenue from local ad valorem taxes than would be produced by application of the preceding year’s rate to the preceding year’s assessment, exclusive of voted levies and net assessment growth, except as provided in subsection (3) of this section.
“(3) Notwithstanding the limitations contained in subsection (1) of this section any county budget commission which, in preparing the proposed budget, deems that it will require an amount of revenue from ad valorem taxes greater than that permitted in subsection (1) may submit to the levying authority for the tax years 1966 and 1967 a budget which could require an increase in such revenue of not more than ten percent after compliance with the following:”

Then follow provisions concerning notice through newspaper and other advertising and a hearing to be conducted by the budget commission.

The appellants, budget commission, take the position that this act attempts to fix a tax rate below the maximum provided for in Section 157 of the Constitution, therefore, it is invalid. They say that “There has never been a House Bill No. 1 before” and that the maximum rates fixed in Section 157 “ * * * are limitations; * * * they are limitations upon the Legislature, as well as upon the local taxing districts, and the constitutional, rather than the legislative limitations, must prevail.” City of Winchester v. Nelson, et al., 175 Ky. 63, 193 S.W. 1040 (1917). They also cite Fiscal Court of Estill County v. Debt Commission of Kentucky, et al., 286 Ky. 114, 149 S.W.2d 735 (1941) and Fox v. Boyle County, et al., 245 Ky. 27, 53 S.W.2d 192 (1932).

Appellees respond that while these cases “do contain some unfortunate and highly inaccurate dicta”, they do not support appellants’ argument. They say that in the Winchester and Estill cases the court was discussing indebtedness and not tax rates, and that in Boyle the issue was the validity of an act which required that cities, counties and taxing districts make provisions in bond issues for the payment of a portion of the bonds on an annual basis. They assert that no case cited by appellants involved the right of the General Assembly to fix a maximum tax rate below that stated in Section 157.

The appellees argue that disposition of the question before us also involves Section 181 of the Kentucky Constitution, which in part reads:

“The General Assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may, by general laws, confer on the proper authorities thereof, respectively, the power to assess and collect such taxes.”

They also rely on Sections 158 and 159. Their argument is that Section 157 sets an absolute maximum on tax rates (except such levy that may be necessary to pay an indebtedness voted by the people), that Section 158 places an absolute maximum limitation on the amount of indebtedness a local government unit may incur, and Section 159 requires that provision be made for the levy of an annual tax sufficient to retire an incurred indebtedness.

Appellees say that whatever authority a county, city or other municipal authority may be given to levy and collect a tax arises from Section 181. They cite City of Louisville v. Sebree, 308 Ky. 420, 214 S.W.2d 248 (1948), in which we said that a municipality’s power to tax is only that which the legislature has granted it. They rely on George Wiedemann Brewing Co. v. City of Newport, Ky., 321 S.W.2d 404 (1959), in which we wrote that Section 181 “does not of itself grant any taxing power to cities, but only authorizes the General Assembly to delegate taxing power ‘by general laws’.” They cite Dyche v. City of London, Ky., 288 S.W.2d 648 (1956). “This court has more than once held that the limit of tax rate as fixed by section 157 of the Constitution is mandatory and absolute, and to no extent modified by the provisions of sections 158 or 159 of that instrument.” Tipton v. City of Shelbyville, 139 Ky. 541, 107 S.W. 810 (1908).

In Fox, et al. v. Board for Louisville & Jefferson County Children’s Home, 244 Ky. 1, 50 S.W.2d 67 (1932), we said:

“The power of the county to levy and collect taxes for both municipal and purely governmental purposes must come from the state. The state may at its pleasure withhold from the county or grant to it the authority to levy taxes for such governmental purposes, or exercise such power itself. The county derives all of its powers and assumes all of its burdens by virtue of legislative enactment, except those conferred or imposed by the Constitution.”

Section 181 states that the General Assembly “may * * * confer” on the local authorities the power to tax. We consider it significant that almost contemporaneously with the adoption of the present Constitution the General Assembly authorized cities and fiscal courts to levy taxes and impose restrictions. KRS 68.090. Paducah Automotive Trades Assn., et al. v. City of Paducah, 307 Ky. 524, 211 S.W.2d 660 (1948). McInerney, Sheriff v. Huelefeld, 116 Ky. 28, 75 S.W. 237 (1903). In Mayfield Woolen Mills, et al. v. City of Mayfield, et al., 111 Ky. 172, 61 S.W. 43 (1901) we said: “The legislature, which gives and recalls, at pleasure, the power to tax, may do so, but not the courts.” We find nothing to convince us that a limitation may not be imposed when the authority to tax is granted. Barrow, et al. v. Bradley, Mayor, et al., 190 Ky. 480, 227 S.W. 1016 (1921); Henry, et al. v. Parrish, et al., 307 Ky. 559, 211 S.W.2d 418 (1948); Parsons v. Arnold, 235 Ky. 600, 31 S.W.2d 928 (1930).

While the rule that legislative power may not be delegated has been relaxed in favor of political subdivisions created for the purpose of local government, the “strict construction” concept applies and such delegation is to he construed to be no greater than clearly appears. Russell County v. Hill, 164 Ky. 360, 175 S.W. 988 (1915). In Commonwealth v. Citizens’ Nat’l Bank, 117 Ky. 946, 80 S.W. 158, 25 Ky.Law Rep. 2100 (1904) we said:

“Taxes levied by counties, cities, towns, and taxing districts are imposed by authority of the state. Counties are but subdivisions of the state, created for governmental purposes. They derive their authority from the state, and can levy no taxes except such as the state authorizes them to levy. They levy taxes by authority of the state, and the levies they make are as fully the act of the state as those made by the Legislature itself. The only difference is that the Legislature, under the power vested in it, instead of levying these taxes itself, authorizes local legislative bodies better adapted to understand the local necessities to make the levies as the local exigencies require. This power of the Legislature, which is universally exercised, is recognized in sections 157, 158, 159, and 180 of the Constitution, and is in words conferred on the Legislature by section 181: ‘The General Assembly shall not impose taxes for the purposes of any county, city, town or other municipal corporation, but may by general laws confer on the proper authorities thereof respectively the power to assess and collect such taxes.’ Unquestionably, the state, in the distribution of the powers of the government, may commit to one body the power to levy certain taxes, and to another the power to levy others; but when it does this all the taxes so levied are levied by the authority of the state.”

Also see Brown, et al. v. Holland, et al., 97 Ky. 249, 30 S.W. 629, 17 Ky.Law Rep. 149 (1895). Construing Section 157 and Section 181 together, as they must be, we hold that KRS 68.245 does not violate these sections.

Another contention of appellants is that “if House Bill No. 1 limits the budget commission” it did not limit the fiscal court. They rely on the provisions of KRS 68.090 and 68.260, but admit that at the time they filed the complaint they had overlooked these provisions. They say they called these statutes to the attention of the trial court but there is nothing in the record to so indicate. The complaint raised the one point — the restriction allegedly imposed by Section 157. The general rule that matters not raised below may not originally be raised in this court does not apply here. In a declaratory judgment action we are not “confined to errors alleged or apparent in the record.” KRS 418.065. We hold that the intent of the act in question is clear. House Bill No. 1, above referred to, in Part III Section 8 (7)(c) [KRS 68.245(2) (c)] provided:

“(c) The sum of the amounts computed under subsections (a) and (b) of this subsection shall be the maximum permissible local ad valorem tax revenue for purposes of subsection (1) of this section, except as otherwise therein prescribed.”

The meaning is clear that it limited the power to tax, therefore, it is unnecessary to consider further this additional contention or the argument that the Budget Commission and not the Fiscal Court determines the amount of tax needed for county purposes. We do not pass upon any constitutional questions not directly raised in this case.

The judgment is affirmed.

WILLIAMS, C. J., and MILLIKEN, OSBORNE, and MONTGOMERY, JJ., concur.

      . Mr. Kinney died while this appeal was pending. By agreement of all parties this matter has been concluded without substitution of his successor, not yet appointed.

      . No unit of government except a county is involved in this litigation.


text:
    TAYLOR COUNTY PUBLIC LIBRARY BOARD et al., etc., Respondents, v. J. Millard SHREVE, County Judge, etc., et al., Movants.
    Court of Appeals of Kentucky.
    Dec. 15, 1967.
    See also, Ky., 419 S.W.2d 779.

      Thomas F. Marshall, Frankfort, Clyde Williams, Jr., Campbellsville, Robert L. Dowell, Greensburg, Joseph J. Leary, Frankfort, for movants.
    Barry Bertram, Fred Faulkner, Jr., Charles Summers, Campbellsville, for respondents.
   CULLEN, Commissioner.

The movants herein are defendants in an action in the Taylor Circuit Court in which there is in issue the validity of a petition for establishment of a public library district for the county. A judgment in that action was reversed by this court on appeal, with directions that the trial court proceed to determine on the merits the sufficiency of the petition. See Shreve et al. v. Taylor County Public Library Board et al., Ky., 419 S.W.2d 779.

The reversing decision above mentioned was handed down on October 17, 1967, but the mandate was not issued until November 17, 1967. One day prior to the issuance of the mandate the circuit court entered an order, on its own motion, without notice or hearing, directing the county clerk of Taylor County to enter on the 1967 tax bills the amount of 3½ cents per hundred dollars of assessed valuation for library tax, and to deliver the tax bills to the sheriff. The order further directed the sheriff to proceed to collect the tax bills, but to hold in his possession the library tax collections pending determination of the validity of the petition for establishment of the library district. The reason stated in the order for such directions was that the holding up of the tax bills pending determination of the library tax questions was placing the county government and the schools “in dire need.”

The motion before us is that the above-mentioned order be set aside because, first, it was entered without jurisdiction since the mandate of this court remanding jurisdiction to the circuit court had not yet been issued when the order was entered; second, the order was entered without notice or hearing; and, third, there was no compliance with the prerequisites of an injunction, such as a showing of irreparable injury, the making of findings of fact and conclusions of law, and the execution of an injunction bond.

In the response to the motion it is pointed out that after the mandate was issued on the appeal, the circuit court entered a new order, upon adequate notice and hearing, reaffirming the directions that were in the original order. It is our opinion that the issuance of. this new order renders moot the first two grounds of motion above stated. And as concerns the third ground it is our opinion that no showing of material injury has been made such as would justify interference by this court with the order (assuming, as movants contend, that the order falls in the category of an injunction).

The motion is denied.

All concur.


author: HAMILTON, Justice. POPE, Justice.

text:
    CITY OF SAN ANTONIO et al., Petitioners, v. Bill POULOS, Respondent.
    No. A-11543.
    Supreme Court of Texas.
    Nov. 22, 1967.
    Rehearing Denied Jan. 17, 1968.

      Sam S. Wolf, City Atty., J. Bruce Aycock and William R. Ward, Asst. City Attys., San Antonio, for petitioners.
    Jack Paul Leon, San Antonio, for respondent.
   HAMILTON, Justice.

This is a statutory appeal under Article 1269m of a civil service commission proceeding discharging a police detective. The trial court set aside the permanent dismissal by the commission; the Court of Civil Appeals affirmed. 403 S.W.2d 168. Petitioners here are the City of San Antonio, its Firemen’s and Policemen’s Civil Service Commission and Chief of Police. Respondent is Detective Investigator Bill Poulos.

The Chief of Police indefinitely suspended Poulos effective March 6, 1965. He timely filed the following statement with the Commission and furnished a copy thereof to Poulos:

«⅜ * *
“There is probable cause to believe that Detective-Investigator Bill Poulos has violated certain provisions of Rule XX, Section 120, Personnel Rules of the City of San Antonio, said rules having been adopted on July 17, 1952, by the Firemen’s and Policemen’s Civil Service Commission as the Civil Service Rules for the Fire and Police Departments of the City of San Antonio and violation of which are grounds for dismissal from the said Police Department.
“Section 120 of the aforesaid Personnel Rules of the City of San Antonio provides that the following shall be grounds for removal:
“Neglect of duty;
“Failure or refusal to carry out instructions ;
“Violation of any of the rules and regulations of the department.
“Instructions to members of the Police Department of the City of San Antonio are found in the Rules and Regulations of the Police Department and the ones that Detective-Investigator Bill Poulos violated are as follows:
“1. That portion of Rule 16 which provides:
“ ‘Officers shall report promptly * * * all information they may receive about any violation or suspected violation.’
“2. That portion of Rule 17 which provides:
“ ‘Officers having information regarding any felony * * *, and immediate action is not required, shall give all details to his Superior Officer and submit a written report as specified in the Reporting Regulations.’
“3. That portion of Rule 29 which provides:
“ ‘No member of the Department shall wilfully misrepresent any matter, sign any false official statement or report * * *.’
“The specific acts allegedly committed by Detective-Investigator Bill Poulos which are in violation of the aforesaid Civil Service Rules were:
“About six weeks or two months ago Detective-Investigator Bill Poulos showed Detective C. M. Gomez two pistols and a Model 21 Winchester, 12 gauge side by side shotgun with an extra set of barrels having ‘147’ for the first three digits of the serial number of the gun, and offered to sell Detective-Gomez the gun. At that time there was a piece of adhesive tape covering a part of the breech of the gun which Detective Poulos told Detective Gomez not to remove since there was something there which he did not want Detective Gomez to see. Detective Poulos told Detective Gomez that he had a friend who could re-engrave over anything that had been engraved on a gun and you wouldn’t be able to tell what was on the gun in the first engraving. Detective Gomez was willing to buy the gun but would not do so unless he was given a receipt for it. Detective Poulos told Detective Gomez that he was not going to give anyone a receipt so Detective Gomez refused to buy the shotgun and the pistols.
“Subsequently Detective Gomez checked the police records and discovered that a Model 21 Winchester 12 gauge shotgun with extra barrels with the serial number ‘14767’ had been reported stolen in a burglary and the stolen gun had the name ‘A. C. Cowles’ engraved upon the breech at the location of the adhesive tape upon the shotgun Detective Poulos had shown him. A few days thereafter Detective Gomez told Detective Poulos that burglary detail had a case in which a shotgun of the same model and type including an extra set of barrels had been taken. Detective Poulos said he did not believe it was the same gun. Detective Poulos filed no report on the shotgun in question.
“When subsequently question (sic) concerning the guns he claimed he had been given them by Norman Spears to be sold if possible. When Norman Spears was asked about the gun he, in the presence of Detective Poulos, said he had never had a Model 21 Winchester and he had not given Detective Poulos the two pistols to sell for him. Subsequently Detective Poulos stated he had obtained the shotgun and the two pistols from Earl M. Brooks to whom he returned the guns after he had shown them to Detective Gomez. Mr. Brooks states he had been asked to sell the guns by a customer whose name is Charlie Powers of Austin, Texas, and that he asked Detective Poulos to try to sell the guns for him. Mr. Brooks further states that upon request of Mr. Powers, he secured the guns from Detective Poulos and returned them to Mr. Powers.
a * * * »

The above statement filed by the Chief of Police with the Civil Service Commission charges the Respondent Poulos with violating portions of three of the Rules and Regulations of the Police Department; Rules 16, 17 and 29 as set out above.

Respondent Poulos filed exceptions to the statement saying that the specific acts of Respondent alleged by the Chief do not constitute a violation of either of the above rules. Respondent, further, excepted on the grounds that the statement does not point out which specific acts of Respondent violate a particular rule.

The Commission overruled these exceptions, and after the hearing found that Respondent had violated two of the three rules he was charged with violating; i. e., Rules 16 and 29.

The District Court on appeal found that the charges on their face failed to allege any specific violation of any Civil Service Rule (and for that reason the failure of the Commission to sustain Poulos’ special exceptions was arbitrary, capricious and unreasonable), and that the order of permanent dismissal was not supported by substantial evidence.

The Court of Civil Appeals in affirming the judgment of the trial court held that the statement by the Chief was not sufficient to charge Poulos with the violation of Rule 29, but was sufficient to charge Poulos with the violation of Rule 16. However, it further held that, there was not substantial evidence produced at the trial to support the charge.

We agree with the Court of Civil Appeals that the statement was not sufficient to charge Poulos with a violation of Rule 29, but for a different reason than given by that court.

Petitioners argue that Poulos violated Rule 29 of the Police Department regulations when he made a false representation to Captain Benfer. The entire rule is as follows:

“No member of the department shall willfully misrepresent any matter, sign any false statement or report, perjure himself, or give false testimony before any court, grand jury, board, hearing or commission.” (Emphasis added.)

That portion of the rule italicized above was omitted from the Chief’s charges. The Court of Civil Appeals held that “willfully misrepresent any matter” only applied to statements made “before any court, grand jury, board, hearing or commission,” We disagree with the construction given this rule by the Court of Civil Appeals. Such a construction is redundant and inconsistent, for “willfully misrepresent” includes perjury and giving false testimony, while the application of the phrase in question to “sign any false statement or report” would be meaningless.

It is contended by Petitioner that the construction of the rule as given by the Court of Civil Appeals would greatly restrict its intended scope. Four distinct types of misconduct relating to the performance of the duties of a member of the San Antonio Police Department are comprehended in Rule 29: willful misrepresentation, whether oral or written; the signing of any false statements or reports; the commission of perjury; and the giving of false testimony before a court or grand jury, or in an administrative hearing of a board or commission.

It is clear from its terms that the final clause of Rule 29 “before any court, grand jury, board, hearing or commission” was not intended to qualify and limit all the preceding proscribed acts. A police officer does not ordinarily sign official statements or • reports in connection with court, grand jury, or administratrive proceedings. Perjury is not limited in statutory definition to such proceedings but is committed by a deliberate and willful false statement under the sanction of an oath or affirmation required or authorized by law. See Art. 302 of the Vernon’s Ann.Penal Code. False testimony, on the other hand, may be given under circumstances where perjury has not been committed, e. g., in an administrative hearing in which the law does not require an oath or affirmation but where, nevertheless, a person assumes an oath before testifying. Compare the definition of false swearing, Art. 310 of the Penal Code.

Respondent argues that the construction we have given Rule 29 would render the phrase “willfully misrepresent any matter” applicable to statements made to all persons under all circumstances. The whole answer is that the rules and regulations of the San Antonio Police Department necessarily are, and must be, referable to the performance of the duties of a member of the department, and to the accomplishment of the statutory purpose of securing and maintaining an efficient police department composed of trusted and competent personnel. See Art. 1269m, §§ 5 and 16a. In our view a proper application of this rule requires the holding that a willful misrepresentation by a police officer of a matter arising in the course of official duties constitutes a violation of the rule.

Having held that the Court of Civil Appeals was in error in holding that the Chief’s allegation of a violation of Rule 29 was insufficient because it did not allege that the purported misrepresentation was made before some court, grand jury, board, commission, or at a hearing, we must determine whether the trial court’s action in sustaining Respondent’s exception to this part of the charge must be sustained on some other ground. Respondent contends that the alleged specific acts contained in the statement are insufficient to charge a violation of Rule 29. He correctly assumes that the last paragraph set out in the above charge manifests those specific acts which are deemed to constitute a violation of Rule 29. He points out that Poulos is charged with making a statement to someone, sometime, and later making another statement inconsistent therewith to someone without stating to whom the first statement was made, or to whom the second statement was made; or under what circumstance either statement was made, or which statement was the misrepresentation.

It follows from this interpretation of Rule 29, that for a charge of “willful misrepresentation” to be valid in this situation it must at least allege to whom such misrepresentation was made, and the official capacity in which it was made. Under the charges as made the misrepresentation could have been made to anybody, under any circumstance and about any matter, whether in the line of duty or not. Such misrepresentation could have been made to Gomez, a newspaper reporter, or some prospective purchaser of the guns in question, without being a violation of Rule 29 as we have construed it. We therefore, hold that the statement of the Chief of Police is insufficient to charge a violation of Rule 29.

We do not agree with the Court of Civil Appeals holding that the alleged acts of Poulos contained in said statement are sufficient to charge a violation of that part of Rule 16, reading as follows:

“Officers shall report promptly * * * all information they may receive about any violation or suspected violation.”

To allege a violation of this part of Rule 16, there must be an allegation of at least three facts. First, there must be an allegation of an actual or suspected violation of the Penal Code. Second, there must be an allegation that the suspended officer had received information about such violation or suspected violation. Third, there must be an allegation that this information was not promptly reported by the officer.

There is no question but that in the charge the Chief stated a violation wherein a shotgun of a certain model and type had been taken in a reported burglary.

The information which Poulos is charged with having received is that he had in his possession a shotgun of the same model and type which had been taken in the burglary. I/i our opinion this allegation falls short of charging Poulos with having received information about the alleged burglary. The statement charges that Poulos said he did not believe the gun he had was the same one taken in the burglary, and it does not allege that the gun he had was the same gun taken in the burglary. Neither does the statement anywhere allege that the Chief believed the gun which Poulos had was the one that was taken in the burglary. If it was not the same gun, then the possession of the gun that Poulos had shown to Detective Gomez does not constitute information about the burglary.

Furthermore, whatever information about the burglary Poulos is charged with receiving, there is no charge that Poulos failed to promptly report it. There is a charge, however, in the statement: “Detective Poulos filed no report on the shotgun in question.” It will be noted that Rule 16 does not require 'that a report be filed. For a report to be filed, such report must necessarily be in writing. Rule 17 required that a written report be submitted, but as we have noted above, the Commission did not find that Poulos had violated Rule 17. We, therefore, hold that the statement failed to specifically point out the act, or acts, by Poulos which constituted a violation of Rule 16.

The written statement required to be filed with the Commission by the Department Head, when he suspends an officer, need not be highly technical, but Section 16, Article 1269m does contain a simple requirement which in our opinion should be strictly followed. Said Section provides that the statement:

“* * * [S]hall not only point out the civil service rule alleged to have been violated by the suspended employee, but shall contain the alleged acts of the employee which the department head contends are in violation of the civil service rules. It shall not be sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated and in case the department head does not specifically point out the act or acts complained of on the part of such employee, it shall be the duty of the Commission promptly to reinstate him.”

If the Department Head is going to fire an officer for having in his possession a stolen gun which he failed to report, then the Department Head ought to be able to allege those facts and make proof thereof. From six weeks to two months had transpired after the alleged transaction occurred before the officer was suspended and before charges were filed. In that length of time the Chief should have been able to learn sufficient facts to charge this officer with a rule violation, if there had been one. Having held that the statement filed by the Chief of Police was insufficient to charge a violation of Rule 16, we do not reach the question of whether or not there is substantial evidence to support such charge.

We think one reason the Chief of Police fell into error in making his charges against the officer is that he alleged that the officer violated three different rules, and then to support these violations he alleged a group of facts without pointing out the facts which applied to a particular rule violation. The better procedure for a Department Head in such a situation would be to consider separately each rule which was alleged to have been violated and then state the precise factual basis for the violation.

The judgments of the trial court and the Court of Civil Appeals are affirmed.

GRIFFIN, WALKER, NORVELL and POPE, JJ., dissenting.

Dissenting Opinion

POPE, Justice.

I respectfully dissent. The Commission ruled that the charges lodged against officer Poulos were sufficient and that he had violated these rules set out in the charges:

“RULE XX, Section 120. Neglect of duty;
Failure or refusal to carry out instructions;
Violation of any of the rules and regulations of the department.
1. That portion of Rule 16 which provides :
‘Officers shall report promptly * * * all information they may receive about any violation or suspected violation.’
2. That portion of Rule 29 which provides :
‘No member of the Department shall willfully misrepresent any matter, sign any false official statement or report * * ”

The district court on appeal held that the charges did not assert any specific rule violation and also that there was no substantial evidence to support any of the charges. The court of civil appeals ruled that the charges were sufficient, but there was not substantial evidence which supported either a violation of rule 16 or Rule 29. The opinion is silent about the Commission’s conclusion that Poulos was guilty of neglect of duty. The majority therefore, does not reach the question of substantial evidence. In my opinion, the majority has imposed requirements for the assertion of civil service violations more suitable to an indictment for violation of the penal code, a thing with which we are not concerned.

Section 5, art. 1269m, Tex.Rev.Civ.Stat. Ann., authorizes the adoption of rules and regulations for the government of policemen. It lists a number of reasons for the removal or suspension of an officer. Neglect of duty is one of those listed. Violation of the rules of the Police Department is another. The original charges against Poulos first stated three general charges: (1) Neglect of duty, which is not discussed by the majority, (2) failure or refusal to carry out instructions, and (3) violation of the rules and regulations of the department. The charges then specify Rules 16 and 29 as those which were violated. The majority regards and treats the two rules as relevant only to the third general charge. The violation of those rules is equally relevant to the charge of neglect of duty. Throughout all of these appellate proceedings, the neglect of duty charge has been ignored by the courts, but it has been insistently urged by the Commission as a sound independent basis for upholding the Commission order.

The first charge made by the Chief of Police, Bichsel, was that Poulos was guilty of neglect of duty in that he violated Rule 16. This Court has committed the same error as the court of civil appeals in requiring proof of elements not embraced within the charged offenses. This is illustrated by that court’s holding that “ * * the crux of the allegations against Poulos was that he was fencing stolen property in attempting to sell this expensive shotgun, the appellants wholly failed to prove that the shotgun Poulos was attempting to sell was stolen from Cowles or from any other person.” The majority opinion makes the same mistake by holding that the charges are insufficient, because “the statement nowhere alleges that the gun he (Poulos) had was the same gun taken in the burglary.” These holdings add elements not found in nor required by a charge of neglect of duty or the charge of failure to report a suspected offense. Such holdings require proof of a crime in addition to proof of a rule violation. The holdings mean that, if the criminal defendant goes free, the carelessness and neglect of officers who broke the departmental rules would also be free of charges. The holdings add to a rule, which requires reports for “suspected violations,” the words, “if a crime is later proved.” Stated conversely, an officer need report no suspected violations which are later proved to be unfounded.

Two charges, one that Poulos was guilty of neglect of duty in failing to report promptly a suspected violation, as well as the independent charge of violating Rule 16 based upon the facts specified in the charges were stated with the certainty required by law. Section 16 of art. 1269m embodies the required standards:

“The written statement above provided to be filed by the department head with the Commission, shall not only point out the civil service rule alleged to have been violated by the suspended employee, but shall contain the alleged acts of the employee which the department head contends are in violation of the civil service rules. It shall not be sufficient for the department head merely to refer to the provisions of the rules alleged to have been violated and in case the department head does not specifically point out the act or acts complained of on the part of such employee, it shall be the duty of the Commission promptly to reinstate him. * *

In Bolieu v. Firemen’s & Policemen’s Civil Service Commission, 330 S.W.2d 234 (Tex.Civ.App.1959, writ ref. n. r. e.) it was held that civil service hearings are not subject to “the stringency of the criminal law * * * and that § 5 of art. 1269m recognizes that a general charge, supported by an assertion of specific acts, is a suitable procedure “for a profession which demands a state of readiness, strict discipline, and a measure of obedience and valor not expected of ordinary callings.” This is a civil action administered by laymen in which courts have not required charges that meet the precision of an indictment. City of Evansville v. Nelson, 245 Ind. 430, 199 N.E.2d 703 (1964); Sudduth v. Board of Fire and Police Commissioners, 48 Ill.App.2d 194, 198 N.E.2d 705 (1964); Marchiafava v. Baton Rouge Fire and Police Civil Service Board, 233 La. 17, 96 So.2d 26 (1957); Sullivan v. Municipal Court of Roxbury Dist., 322 Mass. 566, 78 N.E.2d 618 (1948); Hogan v. Fausz, 243 Ky. 514, 49 S.W.2d 333 (1932). In Marchiafova, supra, the policeman was charged with “engaged in handing out campaign literature and wearing a badge advocating the election of a candidate in the Mayor-President race on election day.” He complained that the notice was too uncertain. The Louisiana Supreme Court reasoned that the notice informed the officer with sufficient particularity because there was only one Mayor-President election and it occurred on July 31, 1956. The court said that the charge was not an indictment by the grand jury and the Chief of Police who preferred the charges was not an attorney. The very nature of the charge, neglect of duty, is that it consists often of non-action. It has been held that in such charges, even time and place may not be necessary to the validity of the charge. Evansville v. Nelson, supra.

Contrary to the view taken by the majority, it is my opinion that the charges were rather carefully drawn so as to give Poulos notice of the event for which he was charged. They follow the format suggested in two earlier cases in which the City of San Antonio was involved. Bolieu v. Firemen’s and Policemen’s Civil Service Commission, supra; Harless v. Bichsel, 327 S.W.2d 791 (Tex.Civ.App.1959, no writ). After stating the general charge and the rules, they specifically state that about six weeks or two months before the charges were filed, which would be between the fifth and nineteenth of January, 1965, Poulos had in his possession a model 21 Winchester, 12 gauge, side by side, shotgun with an extra set of barrels bearing a serial number, the first three digits of which were 147. He offered that.gun for sale to Detective Gomez; Poulos said he would not give the buyer a receipt for a sale, and he told Gomez not to remove an adhesive covering on the breech of the gun “since there was something there which he did not want Detective Gomez to see.” The charges stated that Gomez saw the first three digits of the serial number on the gun and they were 147. The charges further stated that Gomez discovered from the police records that a gun of the same model, make, gauge, and with the same first three serial numbers had been reported stolen in the burglary detail. The charges assert that Gomez told Poulos that the burglary detail had reported such a gun as stolen. The charges then state, “Detective Poulos filed no report on the shotgun in question.”

We come then, to the question which the majority has not reached, was there substantial evidence to support the order of the Commission in suspending Poulos ? The trial court’s and our power in an appeal from an order of an administrative agency is stated in Fire Department v. City of Fort Worth, 147 Tex. 505, 217 S.W.2d 664 (1962). “The extent of such a review has been rather generally held to be limited to an ascertainment of whether there was substantial evidence reasonably sufficient to support the challenged order.” The question is not whether a court agrees with the decision upon the basis of weighing the conflicting evidence. Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183, 27 A.L.R.2d 965 (1951).

Poulos, himself, made a number of admissions. He admitted trying to sell the gun to Detective Gomez on January 16, 1965 and that he was asking $550.00 for it. He admitted he had never seen such a handmade gun in his life, though he had sold a number of guns. He admitted telling his superior, Captain Benfer, who questioned him in late January about his sale of guns, that he had obtained this gun from Norman Spears. He admitted that Captain Benfer during that same conference called in Norman Spears, a local businessman, who denied Poulos’ statement to his face. In the trial court, he admitted that he had not obtained the gun from Spears. He admitted he made no report about the gun. He admitted he was evasive in answering Captain Benfer’s questions about the gun. He said it was possible that there was on file a burglary report of a gun that had the same first three serial numbers as the gun he showed Gomez and that he did not check the burglary reports. He denied telling Gomez he would give no receipt, that the gun had an adhesive covering over the breech or suggesting to Gomez that the gun could be reengraved.

Detective Gomez testified. He said that he remembered the first three digits of the serial number as 147, the gun had a tape across the breech, Poulos told him “Don’t take that off * * * don’t mess with that part there.” He said the gun was a rare one, handmade, expensive, that he told Poulos it would be easy to trace that kind of a gun to its original owner by writing to the factory. He said that Poulos told him he would not give a receipt for the sale. He said that about one week after Poulos tried to sell him the gun, he told Poulos that he thought the gun was stolen, but Poulos said that he thought it was a different gun.

Captain Benfer, who began the investigation against Poulos, testified that Poulos evaded his questions, that Norman Spears denied in the presence of Poulos that he had supplied Poulos with the gun and testified that the morning after the first questioning, Poulos again refused to tell him where he obtained the gun. Lieutenant W. J. Robitzsch, Poulos’ superior, had been present while Captain Benfer questioned Poulos. He said that Poulos mentioned several names of persons from whom he had obtained guns — Spears, Meyers, Snyder, Neal Beard estate. He never did mention the true source of the gun which other evidence showed was from a man named Brooks in Austin, to whom Poulos returned the gun.

Poulos justified his admitted concealment of the true facts on the grounds that Captain Benfer did not like him and he thought that Captain Benfer was trying to involve him in a burglary. He attributed other discrepancies in his statements to the fact that he had dealt with a number of guns for a number of people and did not recall all the facts. He made no effort to prove that there was no suspected violation by reason of facts he knew or any investigation he made. Instead of disclosing such facts, if he had them, he refused to tell his superior officers the true source of the gun.

By way of summary, the majority states three elements which the charges should include to constitute a valid charge for violation of Rule 16, failure to report suspected violations. The first is an allegation of an actual or suspected violation of the penal code. The charges are that Detective Gomez told Poulos “that burglary detail had a case in which a shotgun of the same model and type including an extra set of barrels had been taken.” The proof of that element was that this statement was made to Gomez one week after January 16, but Poulos did nothing. The second requirement stated by the majority, is that the charges must assert the officer received information about such a suspected violation. The charges state that Gomez actually told Poulos a gun like the one he was trying to sell was included in a burglary report at the police station. The proof is that the police records included a description of such a gun which was stolen from the home of Dr. A. Cowles in San Antonio on December 9,1964. These records were easily accessible to Poulos, a member of the theft detail. The third requirement stated by the majority is that there must be an allegation that this information was not promptly reported by the officer. The charges allege, “Detective Poulos filed no report on the shotgun in question.” The proof is that Poulos never did file a report on the gun as a suspected violation.

In my opinion the charges were adequate to assert neglect of duty and also a violation of Rule 16 of the police regulations. We cannot say that the Commission acted arbitrarily in suspending Poulos from the service. I would reverse and render the judgments of the courts below and uphold the order of the Commission. .

GRIFFIN, WALKER and NORVELL, JJ., join in this dissent.

      . All references to articles herein are to Vernon’s Texas Revised Civil Statutes Annotated.


author: POPE, Justice.

text:
    Henry BUTTERY et al., Relators, v. Hon. Charles O. BETTS, District Judge, Respondent.
    No. B-364.
    Supreme Court of Texas.
    Nov. 22, 1967.
    Rehearing Denied Jan. 17, 1968.

      Carlos Ashley, Jr., Llano, John W. Stay-ton, Fred B. Werkenthin, Austin, for rela-tors.
    Crawford Martin, Atty. Gen., Sam Kelley and Robert Flowers, Asst. Attys. Gen., Jacobsen & Long, Jake Jacobsen and Joe Long, Austin, Moursund & Ferguson, Tom Ferguson, Johnson City, for respondents.
   POPE, Justice.

H. L. Buttery and others as relators, filed this original proceeding for a writ of mandamus directing Charles O. Betts, Judge of the 98th District Court of Travis County to vacate an order granting a new trial in a cause filed by relator. In our opinion the order granting the new trial is void because the court lost jurisdiction thirty days after rendition of judgment. Relators are entitled to a writ of mandamus. Article 5, § 3 of Tex.Const., Vernon’s Ann.St.; art. 1733, Vernon’s Ann. Civ.Stat.

Relators made application to the Savings and Loan Commission for a charter for a new savings and loan association in Llano to be known as the Peoples Savings & Loan Association. Community Savings & Loan Association, one of the respondents in this mandamus action, already was authorized to transact business in Texas with its principal place of business in Fredericksburg. It had previously made application for authorization to establish a branch office in Llano. The Savings and Loan Commissioner held separate hearings on Peoples’ and Community’s applications and by separate orders denied both of them.

Relators, on behalf of Peoples, and Community separately appealed to the 98th District Court of Travis County. Relators’ appeal was docketed under number 154,-091 and was styled Henry Buttery et al. v. James O. Gerst, Savings and Loan Commissioner. Community’s appeal was docketed under number 154,082 and was styled Community Savings & Loan Association v. James O. Gerst, Savings and Loan Commissioner. Each association intervened in the other case to protest the grant of the requested authorization.

Relators, joined by the Commissioner, filed a motion to consolidate their case with the Community case for all purposes pursuant to Rule 174(a), Texas Rules of Civil Procedure. Community resisted the motion, and after a hearing, the trial judge entered separate but similar orders in each case. The order in the Buttery or Peoples case provides:

“ * * * [t]hat the motion should be denied insofar as it requests a full and complete consolidation of this cause with cause number 154,082 styled Community Savings & Loan Association, Plaintiff, v. James O. Gerst, Savings & Loan Commissioner of Texas, Defendant, but that said motion should be granted to the extent that said cases be consolidated for the purposes of trial only.
« sfc * *
“It is further ORDERED that the motion, insofar as it requests consolidation of the instant cause with said cause number 154,082 other than for trial only is denied, to which latter action of the court the Plaintiffs herein and the Defendant, James O. Gerst, in open court duly excepted.”

At the trial, two separate hearings were conducted. Separate statements of facts and separate docket notations were made in each cause. On May 9, 1967 the trial court rendered two separate judgments, each of which granted the respective applications. The problem in this case arises out of the steps taken after judgment.

Relators, on behalf of Peoples, filed a timely motion for new trial and notice of appeal in cause number 154,082, the Community case in which they had intervened. The motion complained of the trial court’s failure to consolidate the two cases for all purposes instead of “for the purposes of trial only.” Community, joined by the Commissioner, then filed a document in the same case entitled “Motion to Set Hearing on Motion for New Trial.” The movants, by this motion, joined in relators’ prayer for a new trial in the Community case, but they also asked for a new trial in the Peoples case. Community filed no motion for new trial in cause number 154,091, the Peoples case. The trial court on June 19, 1967, after hearing the motion for new trial, granted a new trial in both the Community case and the Peoples case. Rela-tors, for Peoples, now seek a writ of mandamus to require the respondent judge to vacate the order granting a new trial in the Peoples case, because the judgment in that case became final thirty days after its entry on May 9, 1967.

The trial court’s order for consolidation was “for the purposes of trial only.” It was not a merger of the two proceedings. This is borne out by the order itself, the separate transcripts of the record and testimony, the separate judgments, and even by Community’s motion to set a hearing on Peoples’ motion for new trial, wherein Community referred to and adopted Peoples’ complaint that the court erred in failing to consolidate the cases for all purposes. 3 McDonald, Texas Civil Practice, §§ 10.23, 910, 913, 917 (1950).

Relators urge that the two causes were not merged, the judgment in the Buttery or Peoples case was rendered on May 9, 1967, no motion for new trial was ever filed in that case, and the judgment became final at the expiration of thirty days. Ex parte Godeke, 163 Tex. 387, 355 S.W.2d 701 (1962). Relators’ contentions are sound under the provisions of Rule 329b (5). The rule states:

“5. Judgments shall become final after the expiration of thirty (30) days after the date of rendition of judgment or order overruling an original or amended motion for new trial. After the expiration of thirty (30) days from the date the judgment is rendered or motion for new trial overruled, the judgment cannot be set aside except by bill of review for sufficient cause, filed within the time allowed by law. * *

The motion for new trial filed in the Community case was unavailing as a motion for new trial in the separate Peoples case. See Neuhoff Brothers, Packers v. Acosta, 160 Tex. 124, 327 S.W.2d 434 (1959); Peurifoy v. Wiebusch, 125 Tex. 207, 82 S.W.2d 624 (1935). The order in the Community case insofar as it purported to set aside the judgment in the Peoples case is void, Fulton v. Finch, 162 Tex. 351, 346 S.W.2d 823 (1961), and this court may issue a writ of mandamus ordering the trial court to set it aside. State Board of Insurance v. Betts, 158 Tex. 83, 308 S.W.2d 846 (1959); State v. Ferguson, 133 Tex. 60, 125 S.W.2d 272 (1939); Pierce Co. v. Watkins, 114 Tex. 153, 263 S.W. 905 (1924).

Community argues that even if the order granting the new trial is void, the relators have an adequate remedy at law by way of appeal after a retrial on the merits. Relators are entitled to their final judgment in the Buttery case without establishing that right after a needless retrial and an appeal. Fulton v. Finch, supra; Ridley v. McCallum, 139 Tex. 540, 163 S.W.2d 833 (1942); Highland Farms Corp. v. Fidelity Trust Co. of Houston, 125 Tex. 474, 82 S.W.2d 627 (1935); Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, 1068 (1926); Gulf, C. & S. F. Ry. Co. v. Muse, 109 Tex. 352, 207 S.W. 897, 4 A.L.R. 613 (1919).

We assume that the trial judge will set aside the order purporting to grant a new trial in the cause numbered 154,091, Buttery v. James O. Gerst, Commissioner. A writ of mandamus will issue only if he does not do so.


author: SMITH, Justice.

text:
    Joseph L. PELEJ, Petitioner, v. Kathryn Anne WINANS, Respondent.
    No. B-255.
    Supreme Court of Texas.
    Dec. 6, 1967.
    Rehearing Denied Jan. 17, 1968.
    James L. Mitchell, Dallas, for petitioner.
    McCulloch, Ray, Trotti & Hemphill, Donald J. Hahn, Jr., Dallas, for respondent.
   SMITH, Justice.

Petitioner’s application for writ of error was granted to review the ruling of the Court of Civil Appeals, 413 S.W.2d 772, on a point of error challenging the jurisdiction of the Juvenile Court of Dallas County, Texas, to modify a child support order or to enter an order increasing child support payments theretofore entered by judgment of a court of the State of New Jersey. The judgment of the trial court and the judgment of the Court of Civil Appeals are both reversed and the cause is dismissed.

Respondent brought this suit as an independent action for increased child support alleging that there had been a change of conditions since the divorce was granted. Petitioner filed a motion to dismiss the suit for lack of jurisdiction. The trial court overruled the motion and proceeded to judgment, ordering Petitioner to pay to the Respondent “through the Child Support Division of the Dallas County Juvenile Department, the sum of Two Hundred ($200.00) per month for the support and maintenance” of the two children of the marriage of Petitioner and Respondent. The action of the trial court overruling the motion was assigned as error in the Court of Civil Appeals. The Court of Civil Appeals overruled the point. In this, we think the Court of Civil Appeals erred.

It is undisputed that Respondent filed a suit for divorce against Petitioner in the Superior Court, Chancery Division, Union County, New Jersey; on June 13, 1S61, the Respondent was granted a divorce from the Petitioner and the custody of their two minor children was awarded to Respondent; the Petitioner was ordered to contribute the sum of $166.66 per month for the support and maintenance of said children; the Petitioner and Respondent were resident citizens of the State of New Jersey at the time 'the judgment ordering child support payments was entered; Respondent, prior to the filing of this suit on February 22, 1966, remarried and her name is now Kathryn Anne Winans; at the time this suit was filed, Respondent and the children resided in the State of California; they have never resided in Texas; Petitioner, although a citizen of New Jersey, was temporarily residing in the State of Texas at the time of the filing of this suit; and, Petitioner has at all times complied with the judgment of the Court of New Jersey.

The Respondent argues and the Court of Civil Appeals has held that the Juvenile Court of Dallas County is a special court created by the Legislature, and that the powers delegated to it are to be found in Section 3 of Article 2338-9, Vernon’s Annotated Civil Statutes; that since this action involves only child support, and is not one involving the question of the custody of children, it is an in personam action to determine the Petitioner’s duty to support his children. Respondent contends that the Legislature has afforded alternative courses to pursue in matters of child support where proceedings are enacted, such as we have here, to modify a foreign judgment ordering child support, the contention being that Article 2338-9, supra, was enacted so that litigants seeking child support payments after the effective date of the Act would not be forestalled by the holding of this Court in Ex Parte Roberts, 139 Tex. 644, 165 S.W.2d 83 (1942). In that case, we held that under the law as it existed at that time a district court is “without authority to compel the payment of allowances for the support and maintenance of the child or children of divorced parents in a new and independent suit” not involving the divorce or custody of the child or children. See Article 4639b and Article 4639c, Vernon’s Annotated Civil Statutes.

Respondent suggests that the Legislature has provided an alternative method of procedure in cases of this character by the enactment of Article 2328b-4, designated at the “Uniform Reciprocal Enforcement of Support Act.” We are concerned only with the narrow question of whether or not the provisions of Article 2338-9, supra, vested the Juvenile Court of Dallas County, Texas, with power and jurisdiction to entertain this independent action for support of the children of the marriage of Petitioner and Respondent. We hold that it does not. Our construction of Article 2338-9, supra, leads us to conclude that when the statute was enacted it was the intention of the Legislature to provide a court for the disposition of juvenile and domestic relations matters. It was the intention of the Legislature to vest in the Juvenile Court of Dallas County jurisdiction over the type of cases indicated in the Act. We cannot subscribe to the theory advanced by the Respondent that in passing this legislation the Legislature intended to create a new cause of action and to vest in the Juvenile Court of Dallas County exclusive jurisdiction over the cause of action created by the Act. The position taken by Respondent when followed to its logical conclusion would lead to the incongruous situation where only those courts created by the Legislature by an Act providing for independent actions for child support would have jurisdiction over such subject matter. The Legislature did not set up alternative methods of procedure as claimed by the Respondent. It is our view that Respondent’s right to invoke the jurisdiction of a Texas court, if she has such right, is to be found in Article 2328b-4, supra, and not under the provisions of Article 2338-9, supra. To hold that Respondent may proceed under either statute would attribute to the Legislature an intention to establish the anomalous procedure of limiting on the one hand the institution of suits of this character to those courts created by Special Acts of the Legislature similar to the Act creating the Juvenile Court of Dallas County, Texas, and on the other hand, authorizing the same cause of action, if brought under the Uniform Reciprocal Enforcement of Support Act, to be filed in any district court in Texas.

The judgments of the trial court and the Court of Civil Appeals are reversed and the cause is dismissed.

      . “Sec. 3. The Juvenile Court for Dallas County shall have the jurisdiction concurrent, with the District Courts in Dallas County of all cases involving adoptions, removal of disability of minority and coverture, wife and child desertion, delinquent, neglected or dependent child proceedings, Reciprocal Support Act and all jurisdiction, powers and authority now or hereafter placed in the district or County Courts under the juvenile and child welfare laws of this State; and of all divorce and marriage annulment cases, including the adjustment of property rights and custody and support of minor children involved therein, alimony pending final hearing, and any and every other matter incident to divorce or annulment proceedings as well as independent actions involving child ■custody or support of minors, change of name of persons; and all other cases involving justiciable controversies and differences between spouses, or between parents, or between them, or one of them, and their minor children, or between any of these and third persons, corporations, trustees or other legal entities, which are now, or may thereafter be, within the jurisdiction of the District or County Courts; all cases in which children are alleged or charged to be dependent and neglected children or delinquent children as provided by law, of all suits for trial of title to land and for the enforcement of liens thereon, of all suits for trial of the right of property, and said Court and the Judges thereof shall have power to issue writs of ha-beas corpus, mandamus, injunction, and all writs necessary to enforce their jurisdiction.” (Emphasis added.)

      . The Respondent argues that all courts created under Articles 2338-3, 2338-5, 2338-6, 2338-7, 2338-9a, 2338-10, 2338-11, 2338-12, 2338-13, 2338-14, 2338-15, 2338-16, 2338-17, would have jurisdiction of the subject matter of this suit.


author: WALKER, Justice. NORVELL, Justice.

text:
    Carmen JACAMAN, Co-Executrix of the Estate of M. S. Jacaman, Petitioner, v. FIDELITY AND GUARANTY INSURANCE UNDERWRITERS, INC., et al., Respondents.
    No. B-88.
    Supreme Court of Texas.
    June 28, 1967.
    Dissenting Opinion Oct. 4, 1967.
    Rehearing Denied Oct. 4, 1967.

      Mann, Castillon, Freed & Kazen, George P. Kazen and R. J. Goodman, Laredo, for petitioner.
    Jacob G. Hornberger, Laredo, Beckmann, Stanard, Wood & Vance, Richard C. Keene, Groce, Hebdon, Fahey & Smith, Damon Ball, San Antonio, for respondents.
   WALKER, Justice.

This is an action on two fire insurance policies, one for $10,000.00 and the other for $5,000.00, issued by respondents to M. S. Jacaman. Petitioner is the personal representative of the insured, who died after the suit was filed. Each policy by its terms covered the “contents” of La Popular Store at 415-417 Convent Avenue, Laredo, Texas, and stipulated that “unless otherwise provided, insurance on personal property shall cover only while in the described building.” About three months before the fire, La Popular was closed and all contents of the building described in the policies were moved to the Frontier Shop. The latter store, which was also owned and operated by the Jacaman family, was located some three or four blocks from La Popular.

There was a fire at the Frontier Shop on September 11, 1963, and the evidence shows that the loss amounted to about 70% of the value of the merchandise and fixtures located there. This suit was instituted when respondents denied liability on their policies. The trial court instructed a verdict for respondents, and petitioner appealed to the Court of Civil Appeals. It was her contention there, as in the trial court, that the change in location of the insured property was waived by respondents’ agent, R. E. Laurel. The Court of Civil Appeals concluded that there is no evidence to show that Laurel was the agent of respondents at the time of the alleged waiver, and the judgment of the trial court was accordingly affirmed. 410 S.W.2d 189. It is unnecessary for us to consider the agency question, because it is our opinion that petitioner failed to establish the amount of the loss for which respondents would be liable under her theory of the case.

At the time of the fire, the Frontier Shop contained: (1) the merchandise and fixtures moved there from La Popular; (2) merchandise subsequently moved there from the Frontier Shop Annex, another establishment which was operated by the Jacaman family for a short time; and (3) merchandise and fixtures originally purchased for and placed in the Frontier Shop. The Frontier Shop continued to operate as a retail store after La Popular was closed. Merchandise was sold there, and the stock was replenished by “a lot” of purchases. New merchandise that had been ordered for La Popular was delivered by the carrier directly to the Frontier Shop.

The total value of all merchandise located in the Frontier Shop at the time of the fire was $90,000.00, and the value of the furniture and fixtures was about $5,000.00. Petitioner established these facts and sought to recover the aggregate of the two figures less the salvage from the fire and also less the amounts paid under three other insurance policies covering the Frontier Shop. This computation showed a net loss of $31,862.50 for which petitioner has not been reimbursed. The value of the merchandise transferred from La Popular was approximately $26,000.00, but no attempt was made to show how much of this was on hand at the time of the fire.

About two months before the fire, Laurel learned that La Popular was closed and that the contents of the building had been moved to the Frontier Shop. He had the following conversation with petitioner at that time:

Q. And he told you at that time that Freddie had told him that you had closed La Popular?
A. He told me this, that he went first to the Popular and saw it was closed, so he went to Freddie and asked him and Freddie told him that we had to close.
Q. Was that the extent of his conversation with you about the La Popular Store ?
A. He also talked about the balance that was owing, and then I asked him about the policies on the contents.
Q. Of the Popular Store?
A. Of the Popular Store, that we had moved them and he said that does not affect anything as they are under your father’s name, as long .as they are under your father’s name.

It also appears that the two insurance policies were not cancelled and the unearned premiums were not refunded. Petitioner says that when respondents’ agent learned that the provisions of the policies had been breached, but nevertheless assured her that the coverage was not impaired and took no action to cancel the policies or return the unearned premiums which had already been paid, respondents waived the breach of the policies. In support of this contention, she cites United States Fidelity & Guaranty Co. v. Taylor, Tex.Civ.App., 11 S.W.2d 340 (wr.ref.); Girard Fire and Marine Ins. Co. v. Mallard, Tex.Civ.App., 13 S.W.2d 895 (wr.dis.); and Camden Fire Ins. Ass’n v. Bond, Tex.Civ.App., 202 S.W. 220 (no writ).

While the cited cases support the proposition urged by petitioner, they avail her nothing here. In each of them the suit involved the property described in the insurance policy, and it was held that the policy continued to cover such property after the same was moved to a different location. When viewed in the light most favorable to petitioner, the evidence in the present case indicates, at most, a willingness to insure the contents of La Popular after their removal to the Frontier Shop. There is nothing in the record to warrant the conclusion that Laurel agreed to extend the coverage to all merchandise and fixtures located in the Frontier Shop.

Even if petitioner is correct in her analysis of the evidence and the law applicable thereto, we have the insured merchandise and fixtures placed in a building with other similar property. The total loss resulting from damage to and destruction of the entire stock of merchandise and all the fixtures located in the building is shown, but petitioner has supplied no information that would enable the trier of fact to determine the extent of respondents’ liability. The merchandise from La Popular was placed on the main floor at the Frontier Shop, and all of the merchandise on that floor was totally destroyed. The record does not disclose, however, the amount of sales made from the Frontier Shop during the period between the closing of La Popular and the fire. None of the witnesses undertook to estimate the value of the La Popular merchandise and fixtures that were in the building when the fire occurred, and we have no facts from which such an estimate could be made. The loss sustained as a result of damage to the property insured by respondents is thus a matter of pure speculation. This was urged in the motion for instructed verdict, and in our opinion the trial court properly granted the same on that ground.

The judgment of the Court of Civil Appeals is affirmed.

Dissenting Opinion

NORVELL, Justice.

Both of the insurance polices upon which petitioner sued were issued by R. E. Laurel, doing business as Laurel Insurance Agency, in his capacity as recording agent for the respondent insurance companies. As to the authority of a statutory recording agent, see Shaller v. Commercial Standard Insurance Company, 158 Tex. 143, 309 S.W. 2d 59 (1958). The policies were issued in 1958. The loss by fire occurred in 1963 within the five year term prescribed in the policies. The crucial conversation between R. E. Laurel and petitioner took place about two months before the fire. At that time, Laurel purported to act on behalf of the respondents and as it was shown that the relationship of principal and agent existed between respondents and Laurel in 1958, it will be presumed or inferred, in the absence of rebuttal testimony, that such legal relationship continued and was in existence at the time of petitioner’s conversation with Laurel in 1963. McCormick and Ray, Texas Law of Evidence (2d Ed.) § 81.

My difference with the court lies in the interpretation of the conversation between petitioner and Laurel. The court holds that the effect of this conversation was to modify the terms of the policies as originally written so as to provide for coverage of only that portion of the “contents” remaining on hand at the time of the fire which had been removed from La Popular Store to the Frontier Shop. To me, this view is highly unrealistic and in effect creates a most unusual type of insurance which is wholly unsuited to the business of retail merchandising. We are here dealing with a “contents” policy covering a stock of goods. In Appleman, Insurance Law and Practice, § 2296, it is said:

“A fire policy on a stock of goods which, in the nature of the business, will be continuously changed is insurance of stock in general, and not of the specific items on hand at the time of the issuance of the contract; it will, accordingly, cover new goods as acquired. Nor is this result changed by a moving permit endorsement. And a policy upon stock in trade may cover the aggregate stock of a vendor and vendee, when assembled together for carrying on the same business.”

We have a merger of stocks of merchandise, so to speak. Had the stock of merchandise in the Frontier Shop been moved to La Popular store, there could be little doubt that the policies as originally written would have covered the goods brought in from the Frontier Shop just as if they had been purchased from a wholesaler. I see no difference between this stated situation and the one now before us where with the knowledge and consent of the recording agent, the stock of La Popular was merged with that of the Frontier Shop at the location of the latter establishment. The obvious result of the conversation and agreement between petitioner and the agent Laurel (by whichever theory that may be selected — waiver, estoppel or change in policy provision) was to provide coverage up to $15,000.00 upon a changing stock of merchandise then located at the Frontier Shop just as the original policies provided for coverage of a changing stock of merchandise of approximately $15,000.00 in value located at La Popular. The change was one of location of the insured “contents” and not one which wholly changed the nature of the contract to cover only a stock of merchandise that was constantly being diminished by sales therefrom.

I cannot accept the thesis that after the Popular store merchandise was moved to the Frontier Shop, the parties intended that for insurance purposes the merchandise then in the Frontier Shop should be considered as two stocks of merchandise, one stock being covered by one group of policies and the other stock covered by an entirely' separate group of policies. Certainly, merchants do not procure such a type of insurance upon stocks of merchandise owned by a single individual, located in a single store and handled as a single merchandising unit.

Both policies were written upon the Texas standard form designed to cover stocks of goods of mercantile establishments and provided coverage “On Contents — in the two-story, metal roof, brick building, location, 415-417 Convent Avenue, Lardeo, Texas.” In both policies the occupancy was stated as “dry goods store and hotel above.” The policies contained the following provisions:

“Insurance on stock shall include all stocks of merchandise (finished, in process, or unfinished) including packaging materials, * * *.”
“Contents — Insurance on ‘Contents’ shall include all property included above in ‘Stock/ * *

Some time before the fire, M. S. Jacaman (petitioner’s father) moved the contents of La Popular store located at 415-417 Convent Avenue to the Frontier Shop which was also owned by Jacaman. This was done to remove any question of homestead claim to La Popular premises so that Jacaman could mortgage the same in order to secure funds to purchase a vacant bank building.

Some time before the fire and after Laurel knew that the contents of La Popular had been moved to the Frontier Shop, he had a conversation with petitioner and mentioned the circumstance that the La Popular was now vacant. There was also some discussion concerning a balance which Laurel claimed was due him on the Jaca-man insurance account. The question then arose as to policies covering the “contents” of La Popular which had been moved to the Frontier Shop. Laurel, according to Miss Jacaman, said “that does not affect anything as they are under your father’s name, as long as they are under your father’s name.” At that time, nor thereafter, were the policies cancelled nor were any unearned premiums returned or tendered to petitioner. In view of the peremptory instruction, we should view the testimony in the light most favorable to petitioner. When this is done, the conclusion seems inescapable that a change in the location of the insured “contents” or stock of merchandise was effected by oral agreement or by means of waiver or estoppel. Such change may be validly made orally by a recording agent.

Change of location is the important element in this case. I agree with petitioner’s argument that, “Agent Laurel impliedly gave his consent to this change of location, or at least waived any objection to same by his conduct. The effect of that consent was exactly as if he would have written an endorsement to the policy granting consent to a change of location. The end result was simply that an insurance policy on the ‘contents’ of a retail store at one location became an insurance policy on the ‘contents’ of a retail store at the changed location. It is as simple as that.”

I respectfully dissent from the order affirming the judgment of the courts below.

SMITH and STEAKLEY JJ., join in this dissent.

      . The value of the stock of merchandise and goods destroyed by the Are was in excess of the insurance carried thereon, considering the policies originally issued to cover “contents” at the Frontier Shop location, plus the two policies involved in this litigation. If liable at all, respondents are liable for the full amount of the policies issued by them.


author: PER CURIAM.

text:
    HOUSTON NATURAL GAS CORPORATION et al., Petitioners, v. Victor J. JANAK et al., Respondents.
    No. B-424.
    Supreme Court of Texas.
    Oct. 25, 1967.
    Rehearing Denied Dee. 20, 1967.
    Fulbright, Crooker, Freeman, Bates & Jaworski, St. John Garwood, Jr., Joe H. Foy, Houston, for petitioners.
    Baggett, Kirk, Van Keuren & Baggett, Russell T. Van Keuren, Houston, for respondents.
   ON APPLICATION FOR WRIT OF ERROR

PER CURIAM.

This action to recover damages for fraud was instituted by Victor J. Janak and Janak Construction Company, plaintiffs, against Houston Natural Gas Corporation, Active Heating & Air Conditioning Company, Inc., Ready Power Company, Jack H. Burk-halter, Tom Stinnett and Wayne Lippert, defendants. Ready Power Company failed to answer. After a jury trial judgment was rendered: (1) that plaintiffs recover from Houston Natural Gas Corporation and Ready Power Company, jointly, the sum of $7,500.00, and (2) that plaintiffs take nothing against the remaining defendants.

The Court of Civil Appeals held that the jury findings on certain liability issues are supported by the record, that there is no competent evidence as to the cost of the duct system, power unit and controls, and that the trial court erred in granting Lip-pert’s motion for instructed verdict. It reversed the judgment of the trial court and remanded the cause for a trial of the damage issues alone. 416 S.W.2d 484.

The holding of the Court of Civil Appeals that a partial remand may properly be ordered in a case of this character to enable the trial court to determine only the amount of damage is in conflict with our opinion in Waples-Platter Co. v. Commercial Standard Ins. Co., 156 Tex. 234, 294 S.W.2d 375, but we have concluded that there is no merit in the other points of error brought here for review. In accordance with the provisions of Rule 483, Texas Rules of Civil Procedure, and without granting the application for writ of error, the judgment of the Court of Civil Appeals is modified so as to order a remand for the trial of all issues between plaintiffs on the one hand and Houston Natural Gas Corporation and Wayne Lippert on the other. As so modified the judgment of the Court of Civil Appeals is affirmed.