author: COLEMAN, Justice.

text:
    G. R. HATTEN et al., Appellants, v. The CITY OF HOUSTON, Appellee.
    No. 14255.
    Court of Civil Appeals of Texas. Houston.
    Oct. 17, 1963.
    Rehearing Denied Dec. 19,1963.

      Lloyd M. Lunsford, South Houston, and Louis W. Graves, Jr., James T. Russell, and Graves, Cottingham & Russell, Houston, for appellants G. R. Hatten, James K. Freeman, Russell Kiehn and W. Joe Norris.
    David Crews, Conroe, and Sam Freas, Livingston, for appellants M. L. & Lamar Walker.
    R. H. Burks, City Atty., and G. Gordon Whitman, Senior Asst., Vinson, Elkins, Weems & Searls, Victor W. Bouldin, Houston, for appellee.
   COLEMAN, Justice.

This is a special statutory proceeding instituted by the City of Houston, Texas, under the provisions of Article 717m, Vernon’s Ann.Tex.St., seeking a declaratory judgment establishing the validity of $14,000,000.00 in Water System Revenue Bonds and the proceedings had in connection with the issuance thereof. The proceeding is one in rem and citation is by publication.

By order of the trial court an earlier suit seeking to enjoin the issuance of the bonds and a water rate ordinance of the City was consolidated with this cause, the order reciting: “(c) that all issues in Cause No. 607,354-A which are litigable in Cause No. 610,652, shall be consolidated and jointly tried in said Cause No. 610,-652, it being expressly provided that this order shall not be deemed to limit or affect the determination by the respective judges trying said Cause No. 610,652 or 607,354-A of the question of the proper issues which may be litigated in said causes.” Cause No. 607,354 was instituted by a group of citizens, who subsequently filed an answer in this cause and who will be referred to herein as the “Hatten defendants.”

Subsequently M. L. and Lamar Walker filed an answer in this cause, in which they alleged that they are land owners in Polk County, Texas, and that their real estate “would be affected by the securities described * * * and that said Defendants * * * would be affected in other ways by said securities, and by the issuance and sale of same. That said Defendants fall within the class of persons to whom the order and notice of this suit was addressed.”

As an answer to a motion for summary judgment, the Walkers filed an affidavit in which they stated that they owned an interest in a business in the City of Houston and an interest in real estate in the City of Houston. In answer to requests for admissions of fact they refused to admit that they owned no real estate in the City of Houston and were not water customers of said City, and in a sworn answer to the motion for summary judgment stated affirmatively that they were owners of real estate in the City of Houston and owned an interest in a business which is a water customer of the City. All of these pleadings were filed by David Crews, an attorney for the Walkers.

Prior to the trial of this case the Walkers filed proper affidavits to support a motion for continuance on the ground that their attorney of record, David Crews, was a member of the Legislature of the State of Texas, and that said Legislature was in session. The motion was denied and the matter proceeded to trial in the absence of' the said David Crews. In his findings and. conclusions the trial court said: “M. L„. Walker and Lamar Walker alleged no. litigable interest in the subject matter of' this proceeding and are not proper parties to this proceeding.”

Section 3 of Article 717m, V.A.T.S., provides in part:

“The judge of the District Court wherein the petition is filed, shall, upon the filing and presentation thereof, make and issue an order in general terms in the form of a notice directed to ‘all property owners, taxpayers, citizens and others having or claiming any right, title or interest in any property or funds to be affected by the issuance of the Securities or affected in any way thereby,’ requiring in general terms and without naming them, all such persons and the Attorney General of Texas to appear at or before 10 o’clock A.M. on the first Monday after the expiration of forty-two (42) days from the date of issue of said order, and show cause why the prayers of the petition should not he granted and the proceedings and the Securities validated and confirmed as therein prayed. * * * ”
Section 5 provides in part:
“By the publication of said order, all property owners, taxpayers, citizens or others having or claiming any right, title or interest in or against the petitioner or property subject to taxation thereby or otherwise affected by or interested in the issuance of the Securities described in the petition, shall be considered as and are made parties defendant to said proceedings, and the court shall have jurisdiction of them to the same extent as if individually named as defendants in said petition and personally served with process in the cause.”
Section 6 provides:
“Any property owner, taxpayer, citizen or person affected by or interested in the issuance of the Securities may become a named party to said proceedings by pleading to the petition on or before the time set for hearing as provided in Section 3, or thereafter by intervention upon leave of court. At or after the time, and at place designated in the order for hearing, the judge shall proceed to hear and determine all questions of law and fact in said proceedings and may make such orders as to the proceedings and such adjournments as will enable him properly to try and determine the same and to render a final decree therein with the least possible delay.”

From a literal interpretation of these sections it would appear that any person, who owns any property in the City or who claims to be affected in any manner by the issuance of the securities, is given a statutory right to make himself a named party to the proceeding. By the provisions of Sec. 8 of the statute a judgment rendered in this cause will constitute a permanent injunction against the institution of any sort of legal proceeding contesting the validity of the securities or of the provisions made for the payment of the same. It may well have been the intention of the Legislature that all who consider themselves affected by the issuance of securities would have the right to appear and answer in a proceeding under this statute, whether their claim of interest is well founded or not. However, we are not content to rest our decision on this basis.

Appellee forcefully urges that in passing on the Walker motion for continuance the trial court could properly determine whether one presenting such a motion is a member of the class sued so as to have standing to urge it. The. Walkers were referred to as “defendants” in many pleadings filed in this proceeding. Their bill of exceptions as approved by the trial court states that no objections to the form or contents of the motion for continuance and the affidavits filed in connection therewith were made. While the trial court in his conclusions of law found that the Walkers alleged no litigable interest in the subject matter of the proceeding and were not proper parties, their appearance was noted in the judgment and their rights, if any, are adjudicated thereby. The denial of the motion cannot be supported on the basis of a finding of “no litigable interest.”

Rule 45, Texas Rules of Civil Procedure, provides that the pleading of a legal conclusion shall not be a ground for objection when fair notice is given by the allegation as a whole. Rule 90, T.R.C.P. provides that every defect, omission, or fault in a pleading, either of form or of substance, which is not specifically pointed out by motion or exception in writing shall be deemed to have been waived by the party seeking reversal on such account.

The Walker defendants pled the conclusion that they would be affected in ways other than by reason of their ownership of Polk County property by the issuance and sale of these securities. They also alleged generally that they were within the class of persons to whom the notice of suit was addressed. Since the City did not contest these allegations by special exceptions, motion to strike, or otherwise, the conclusions so alleged are sufficient if evidence would be admissible under such allegations to prove that the Walkers are proper named defendants under the terms of Article 717m. Broussard v. Tian, Tex. Civ.App., 290 S.W.2d 372, reversed on other grounds 156 Tex. 371, 295 S.W.2d 405; Mizell Const. Co. & Truck Line, Inc. v. Mack Trucks, Inc., Tex.Civ.App., 345 S.W.2d 835; Tolson v. Carroll, Tex.Civ.App., 313 S.W.2d 131. The pleadings were sufficient when tested by this rule.

The statement of facts shows that the trial court held as a matter of law that this proceeding is not a civil suit and that Article 2168a has no application to a special statutory proceeding. In this we think the court erred. In National Life Co. v. Rice, 140 Tex. 315, 167 S.W.2d 1021, the court defined a “suit” as follows: “A ‘suit’ is ‘any proceeding in a court of justice by which an individual pursues that remedy in a court of justice which the law a ords him.’ Watson Co. v. Cobb Grain Co., Tex. Com.App., 292 S.W. 174, 176, quoting the language of Chief Justice Marshall in Weston v. City Council of Charleston, 2 Pet. 449, 7 L.Ed. 481. It is the prosecution of some demand in a court of justice. Ex Parte Towles et al., 48 Tex. 413, 433.” Here the City pursues in a court of justice a remedy afforded it by law, its object being to finally determine a pending suit attacking the validity of bonds it proposes to sell and to enjoin the institution of future suits of a similar nature. The fact that by statute a special method of procedure is available to the City seeking relief of this nature does not change the nature of the action. It remains a civil suit subject to the terms of Art. 2168a. Ramsey v. Gardner, 154 Tex. 457, 279 S.W.2d 584.

The trial court erred in failing to sustain the motion for continuance and in proceeding with the trial thereafter. Art. 2168a, Rev.Civ.Stat.; Mora v. Ferguson, 145 Tex. 498, 199 S.W.2d 759; Government Services Ins. Underwriters et al. v. Hon. Herman Jones, District Judge, 6 Tex. S.Ct. J. 487. Since this is a proceeding in rem, reversal of this judgment as to the Walker defendants requires that it be reversed as to the Hatten defendants as well. Since, however, questions raised in their briefs by the Hatten defendants will probably recur in another trial, we deem it necessary to discuss them.

The Hatten defendants’ request for a jury trial was denied because Article 717m provides that all questions of law and fact arising in .the proceeding shall be determined by the judge trying the case. It is generally considered that the provisions of Art. I, Sec. 15 and Art. V, Sec. 10, of the Texas Constitution, Vernon’s Ann.St. providing that the right of trial by jury shall remain inviolate, apply only to those issues and causes which, either by the common law or by statute existing prior to the adoption of the Constitution, were tried to a jury. However, the Supreme Court of Texas, in White v. White, 108 Tex. 570, 196 S.W. 508, said: “ ‘In cases where the right existed prior to the Constitution, it (trial by jury) cannot be denied, and this applies to cases of a similar character arising under statutes enacted subsequently to the adoption of the Constitution.’ 24 Cyc. pp. 101, 102, and cases cited.”

Art. V, Sec. 10, provides: “In the trial of all causes in the District Courts, the plaintiff or defendant shall, upon application made in open court, have the right of trial by jury * * * ” If, therefore, a proceeding under Art. 717m is a “cause”, that portion of Art. 717m providing that all issues of fact be determined by the judge is unconstitutional. In Walsh v. Spencer, Tex.Civ.App., 275 S.W.2d 220, the court said:

“However, the provisions of Art. 5, § 10, of our Constitution are much broader than those óf Art. 1, § 15, insofar, as the trial of causes in the district court is concerned * * * The meaning of this section was discussed by Chief Justice Gaines in Tolle v. Tolle, 101 Tex. 33, 104 S.W. 1049, 1050. He said: ‘Language cannot be more comprehensive than this. Hence, if a probate proceeding is properly styled a “cause”, this section undoubtedly gives a right of trial by jury. Bouvier defines a “cause” as: “A suit or action; any question civil or criminal contested before a court of justice.” The questions in this case are certainly questions contested before a court.’

“There are a number of proceedings in the district courts, however, in which a trial by jury may be denied. Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W.2d 227 (Proceeding to cancel license to sell liquor); Hammond v. Ashe, 103 Tex. 503, 131 S.W. 539 (Primary election contest); McCormick v. Jester, 53 Tex.Civ.App. 306, 115 S.W. 278 (Contest of local option election); Ex parte Giannatti, Tex.Civ.App., 189 S.W.2d 191 (Committing mentally ill persons to state hospital for period of ninety days); Hickman v. Smith, Tex.Civ.App., 238 S.W.2d 838 (adoption proceedings); Burckhalter v. Conyer, Tex.Com.App., 9 S.W.2d 1029; Erwin v. Williams, Tex.Civ.App., 253 S.W.2d 303 (Habeas corpus for custody of child). However, none of the reasons or principle upon which these cases have been decided is involved here.”

We are of the opinion that trial by jury cannot be denied in this case. The principles on which the cases denying trial by jury were decided have no application here. It appears a jury trial has been denied litigants in appeals from decisions of administrative boards because such appeals do not constitute a civil suit or cause of. action. This was the holding in Texas Liquor Control Board v. Jones, Tex.Civ.App., 112 S.W. 2d 227, where the court quotes with approval from State v. Lone Star Gas Co., Tex.Civ.App., 86 S.W.2d 484, writ refused, a case appealed to the district court under a statute providing for a trial de novo, as follows:

“ ‘In such cases the Legislature does not vest in courts the administrative function of determining whether a license, permit, or certificate of convenience or necessity should issue, but merely gives the courts authority to determine whether the action of the administrative board or commission is (a) beyond the power it could constitutionally exercise, or (b) beyond its statutory power, or (c) based upon substantial evidence.’ ”

These matters are questions of law which could not properly be submitted for the determination of a jury. The court, however, based its decision, that appeals from the cancellation of a permit to sell liquor under the Liquor Control Act are not civil suits or causes of action, on the case of State v. De Silva, 105 Tex. 95, 145 S.W. 330, which held that the revocation of such a license by a county judge was a ministerial or administrative, rather than a judicial, action. In Hernandez v. State, Tex. Civ.App., 135 S.W. 170, writ dism., the county judge, after a hearing, cancelled a liquor license. The court dismissed an attempted appeal for lack of jurisdiction in that the county court lacked jurisdiction for the reason that the license revoked could not be of “such value as would form a basis for a civil case within the jurisdiction of the County Court.”

Jury trial has also been denied in suits contesting the result of an election. In Williamson v. Lane, 52 Tex. 335, the court held that such a contest was not a civil case and, therefore, the Legislature was without power to confer jurisdiction on the Supreme Court without disregarding the positive restriction imposed upon its jurisdiction by the Constitution and dismissed the appeal. The basis for the decision was that the determination of the result of an election is in the nature of a political question “to be regulated, under the Constitution, by the political authority of the State.” In Odell v. Wharton, 87 Tex. 173, 27 S.W. 123, the court held that an amendment to the Constitution conferring jurisdiction on the district courts to try “contested elections” was not self-executing, and that since a contested election is not a civil suit or cause, it could not be tried by the proceedings had in such cases.

The right to a jury trial has been denied in habeas corpus proceedings for the custody of a child. Burckhalter v. Conyer, Tex.Com.App., 9 S.W.2d 1029; Pittman v. Byars, 51 Tex.Civ.App. 83, 112 S.W. 102. The Commission of Appeals based their decision in the Burckhalter case on Pittman v. Byars, supra, in which the court said:

“When a statute or Constitution, after having been once construed by a ■court of final jurisdiction has been reenacted without material change, such ■construction becomes a part of the new law or construction (sic) * * * The Constitution preceding our present one had a similar provision to the ■one under consideration. Both before and since the adoption of the present Constitution, it has been the uniform practice in this state for habeas corpus cases to be tried before the court, and not by a jury, * * * the court below did not err in refusing to grant appellants a trial by jury.”

Habeas corpus suits are civil cases. Harbison v. McMurray, 138 Tex. 192, 158 S.W. 2d 284.

In the case of Hickman v. Smith, Tex. Civ.App., 238 S.W.2d 838, 839, writ ref., the court said that the right of trial by jury as guaranteed by the Constitution of Texas is limited to the right as it existed at Common Law or as provided by statutes in effect when our Constitution was adopted in 1876. The court then found that adoption was unknown to the Common Law and that the adoption statute effective in 1876 had no provision for a jury trial. The court then held that, since Art. 46a “validly and plainly makes it the duty of the trial court or judge, as distinguished from a jury, to grant or deny a petition for adoption as in his discretion the facts and welfare of the child require,” the trial court did not err in denying a trial by jury. Art. V, § 8 of the Constitution of Texas, provides that the district court shall have original jurisdiction and general control over minors “under such regulations as may be prescribed by law.”

We have reviewed these cases carefully for the reason that we hesitate to declare unconstitutional an act of the Legislature plainly designed to secure speedy adjudication of causes in which the public has an unusual interest. We are not unaware of the great public interest in the issues basic to this suit or of the necessity for careful planning to secure a supply of water adequate for the future needs of the City of Houston. However, we cannot sanction the denial of the right to a trial by jury in any case where it reasonably appears to be guaranteed by the provisions of our Constitution, although the public interest would be served by a speedy adjudication of the issues involved and trial by jury would necessarily involve considerable delay.

The proceeding, designated in Art. 717m as a suit for declaratory judgment, is a cause of action or a civil suit. A cause of action has been defined as: “A suit or action; any question civil or criminal contested before a court of justice.” Tolle v. Tolle, 101 Tex. 33, 104 S.W. 1049; Boothe v. Durrett, Tex.Civ.App., 343 S.W. 2d 553, ref., n. r. e.; City of Big Spring v. Garlington, Tex.Civ.App., 88 S.W.2d 1095. The remedy afforded by the general statute authorizing declaratory judgments is an “action”. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709; City of San Antonio v. United Gas Pipe Line Company, Tex.Civ.App., 354 S.W.2d 217. This definition of “cause of action” has been approved in many jurisdictions, and it is generally held that, in a legal sense, “action,” “suit,” and “cause” are convertible terms. Nylan v. Renhard, 10 Colo.App. 46, 49 P. 266; Zilz v. Wilcox, 190 Mich. 486, 157 N.W. 77; Schmalz v. Arnwine, 118 Or. 300, 246 P. 718; Cheney v. Richards, 130 Me. 288, 155 A. 642; Gibson v. Sidney, 50 Neb. 12, 69 N.W. 314; State Road Department of Florida v. Crill, 99 Fla. 1012, 128 So. 412; Blyew v. United States, 13 Wall. 581, 80 U.S. 581, 20 L.Ed. 638.

In Morrow v. Corbin, 122 Tex. 553, 62 S.W.2d 641, the Supreme Court of Texas, in an opinion declaring unconstitutional a statute authorizing a species of advisory opinions, held that the Supreme Court had appellate jurisdiction only of questions of law arising in cases of which the Courts of Civil Appeals have appellate jurisdiction (except in instances where it has original jurisdiction). The Court quoted 3 Tex. Jur., p. 65, § 22: “ ‘Appellate jurisdiction is the power and authority conferred upon a superior court to rehear and determine— that is to review — causes which have been tried in inferior courts. * * * ’ ” The Court further said:

“When the Constitution declares that our appellate courts shall have and exercise original and appellate jurisdiction, it means those types of original and appellate jurisdiction which from time immemorial the common-law courts have exercised. Beyond the limits of original and appellate power as comprehended by the common law the Legislature is without constitutional authority to confer jurisdiction, except in so far as the common law has been abrogated or modified directly or by necessary implication by the Constitution itself. Harrell v. Lynch, 65 Tex. 146, 150; Ex Parte Towles, 48 Tex. 413, 414; Ex Parte Ginnochio, 30 Tex.App. 584, 18 S.W. 82; Gibson v. Templeton, 62 Tex. 555; In re House Bill 537 of Thirty-Eighth Legislature, 113 Tex. 367, 256 S.W. 573; Ex Parte Whitlow, 59 Tex. 273; O’Brien v. Dunn, 5 Tex. 570.”

The necessary implication of this holding is that there is no power in the Legislature to require or authorize the appellate courts of this State to act, as a court, on any matters other than cases susceptible of adjudication unless authorized by the Constitution. A trial court must have finally determined issues of fact or law in a cause before this Court would have jurisdiction to review its judgment.

In any event it is apparent that the Legislature, in enacting Article 717m, intended to provide a method of adjudicating the validity of public securities which would be more efficient and quicker than the procedures theretofore available. There is no' indication that it was intended that the procedure authorized would not constitute a civil case or a cause of action. The language of the Act indicates a contrary intention. The Act authorizes the institution of proceedings to secure a declaratory judgment. The proceeding thus instituted is an “action”. City of San Antonio v. United Gas Pipe Line Co., Tex.Civ.App., 354 S.W.2d 217.

In this Act the following words and phrases appropriate to a “cause of action” or “civil suit” were used by the Legislature: “may institute suit for declaratory judgment,” “defining the parties to such suits,” “authorizing the entry of decrees and judgments in such causes,” “as a class action,” “in the litigation,” “the court shall proceed to a final determination of the cause.” It is noteworthy that Sec. 7 of this article provides : “Such appeal shall take priority over all other civil cases pending in said court except habeas corpus.” (emphasis added)

A study of the petition in Cause No. 607,-354-A and the answer filed by the same parties in this case will demonstrate that the issues of law and fact are substantially identical. This indicates that this special proceeding is a “cause of action” similar, at least, to the previously filed suit in ■equity. While in many states jury trials were denied in chancery proceedings, this has never been the rule in Texas.

That portion of Art. 717m providing that all issues of fact be determined by the trial court is unconstitutional in that it denies a litigant in the district court the right of a trial by jury, contrary to the provisions of Art. V, Sec. 10 of the Constitution t>f Texas. The remainder of the statute is not invalid since a complete and workable law remains and the apparent purpose of the Legislature will not necessarily be defeated. Southern Canal Co. v. State Board of Water Engineers, 159 Tex. 227, 318 S.W.2d 619; Kleiber v. McManus, 66 Tex. 48, 17 S.W. 249.

Appellee has filed a motion to strike the statement of facts for the reason that it was not timely filed. Since, as we have held, this action is a civil action, it is governed by the Rules of Civil Procedure promulgated by the Supreme Court except insofar as specific changes are made by Art. 717m. Gonzalez v. Rodriguez, Tex.Civ. App., 250 S.W.2d 253; Rule 2, T.R.C.P.

Art. 717m provides that any party to the proceeding may appeal therefrom to the Court of Civil Appeals within twenty days after the entry of such decree. Such an appeal is given priority over all other civil cases except habeas corpus. By Section 4 the trial court is authorized to make certain orders “as may tend to avoid unnecessary costs or delays * * In Section 6 it is provided that “the judge * * * may make such orders as to the proceedings * * * as will enable him properly to try and determine the same and to render a final decree therein with the least possible delay.” (emphasis added) Section 7 provides that' the Supreme Court shall have authority to review the decisions of the Courts of Civil Appeals “in the manner, time, and form applicable in other civil causes * *

The legislative intent to provide for a speedy termination of this type of litigation is apparent. It is appellee’s position that, in view of this intent, the provision of Art. 717m providing that “an appeal may be taken * * * within twenty days * * • requires that notice of appeal, filing of appeal bond, and filing of record be complete within that time. We think that that provision means that the appeal must be perfected within twenty days. An appeal is perfected by giving notice of appeal and filing an appeal bond when such a bond is required. Rule 363, T.R.C.P. While this twenty day provision increases the time for giving notice of appeal (Rule 353, T.R.C.P.), it decreases the time allowed for filing the cost bond by Rule 356, T.R.C.P., from thirty days to twenty days. Since Art. 717m contains no specific time limit within which the transcript and statement of facts must be filed, the provisions of Rule 386, T.R.C.P., apply. Appellants filed both the statement of facts and the transcript well within the time limits established by this rule.

Should it appear that the legislative intent to provide for a speedy disposition of these matters is so clear as to require an interpretation of Art. 717m in accordance with appellee’s view, we would hold that the requirement that the record -be filed within twenty days is directory and that this Court has juridiction to grant a motion for extension of time, showing good cause, filed within the twenty day period. Such a motion has been filed in this case. This statute does not expressly, or by inference, deny to the Courts of Civil Appeals jurisdiction to extend the time for filing. The decisions holding jurisdictional the time limits prescribed by Rule 386, and the statutes preceding the rule, do not control this case, since they can be explained on the basis that the rule (or statutes) prescribes the only conditions under which the Court has power to grant an extension of time. C. S. Hamilton Motor Co. v. Muckleroy, Tex.Civ.App., 46 S.W.2d 451 (dissenting opinion specifically approved by the Supreme Court of Texas in Hunter v. Moore, 122 Tex. 583, 62 S.W.2d 97); Red v. Bounds, 122 Tex. 614, 63 S.W.2d 544; Walker v. Cleere, 141 Tex. 550, 174 S.W.2d 956. Since this statute is silent on conditions under which extensions of time could be granted, we could not presume that the Legislature intended that extensions could never be granted even though, as a practical matter, it would be impossible for the record to be prepared within the time specified. If the Rules of Civil Procedure, promulgated by the Supreme Court, are not applicable to this action, this Court would have inherent power to determine the procedure to be followed in the absence of a procedure established by the Legislature.

Art. 717m provides that the petition for declaratory judgment shall set out the county or counties in which the proceeds of the securities, or any part thereof, are to be expended and “all other pertinent matters.” The principal purpose of such an allegation is to give notice to the residents of the counties in which the bond proceeds are to be expended in order that they might appear and answer to the petition.

Here the City alleged that the proceeds were to be expended in Harris County, “and the City Council may authorize a portion of such proceeds to be expended in Polk, San Jacinto, Walker, and Trinity Counties, Texas.” Such an allegation constituted a substantial compliance with the statute. The purpose of requiring such an allegation was met by this wording, adopted by the City in an effort to avoid alleging action taken in excess of its Charter authority. We are also of the opinion that the petition is sufficiently complete in its allegation of “all other pertinent matters.”

Art. 717m specifically makes the “terms”' under which securities are to be issued,, and the legality of all proceedings taken or proposed to be taken in connection with the-issuance of the securities, matters to be-adjudicated in this declaratory judgment proceeding. The City alleged that its bond' Ordinance No. 62-1367, a copy of which, was attached to the petition, was duly adopted; that it is valid and fully authorized by law. The bond ordinance contains the following provision:

“The City has heretofore entered: into a contract with the Trinity River-Authority of Texas, dated September-14, 1959, relating to the cooperation of the City and that Authority in the joint-development of a water supply from-, the Trinity River. The City has also' entered into a contract with the Sam Jacinto River Authority of Texas,, dated March 11, 1960, relating to the-cooperation of the City and that. Authority in the joint development of a water supply from the San Jacinto' River. The City expects to enter into' a contract with the United States off America and the Trinity River Authority of Texas in regard to the construction and operation of a salt-water barrier dam and reservoir near the-mouth of the Trinity River. Copies of each of the two existing contracts with the Authorities are on file in the office of the City Secretary and reference is. made to eaUi of said contracts ior full! particulars. The City’s portion and interest in and to the water supply properties which are to be constructed or acquired by the City under the terms of each and all of said contracts shall! constitute and become a part of the System, subject to the terms and provisions of said contracts and each of them.”

The trial court sustained a motion in limine, the effect of which was to exclude-all testimony concerning these contracts.. At the trial the contracts were offered im evidence and were excluded, as was other •testimony relative to the contracts. Appellants contend that the Trinity River Contract is invalid.

The rights acquired under the 'Trinity River contract are made part of the water system of the City of Houston by the bond ordinance and, therefore, are subject to the provisions of that ordinance •pledging the revenues and properties of the water system as security for the protection •of the purchasers of the bonds. An adjudication of the validity of the bond ordinance requires a determination of the validity of the revenues and property pledged ■as security and, therefore, of the Trinity River contract. For the same reason the validity of the San Jacinto River contract is at issue, and the trial court erred in excluding testimony pertaining to the validity of these contracts. Necessarily the contract instruments would be relevant and admissible.

This Court holds that the trial court erred in refusing to admit evidence pertaining to rthe legality of the Trinity River contract, but we express no opinion on its validity in view of the fact that the ruling of the trial ■court on the motion in limine and objections at the trial made it unlikely that the •questions raised were fully developed. However, since the validity of the contracts must be determined in order to establish the validity of the securities, the question •of whether the issuance of the securities can be enjoined on pleading and proof that the City intends to use the proceeds of the bonds for the purpose of financing the 'Trinity River contract becomes immaterial.

Appellants have alleged that certain ordinances enacted by the City of Houston, in•creasing water rates, were not based on .any need or necessity for increased revenues and were unreasonable, arbitrary, capricious, oppressive and discriminate against •domestic water users in favor of industrial water users of Harris County and the Trinity River Authority. They also alleged •that the rates were increased by the City ior the purpose of acquiring surplus revenues for use in financing the $14,000,000.00 water system revenue bond issue which they contend is invalid on several grounds, one §' which being that the City intends to use ,000,000.00 of the proceeds to fulfill obligations assumed under the Trinity River Authority contract. They alleged that the water rate ordinances are invalid because the rates are unreasonable and oppressive; because the rates are discriminatory; and because the ordinances were enacted pursuant to a “scheme, device, and design” on the part of the Mayor and City Council of Houston to finance an invalid contract.

The general rule is well established that when a municipality undertakes to furnish a public service, such as the supplying of water to consumers, it acts in its proprietary, and not its governmental, capacity, and it is obliged to serve its customers at reasonable and non-discriminatory rates. Hicks v. City of Monroe Utilities Comm., 237 La. 848, 112 So.2d 635; Kliks v. Dalles City, 216 Or. 160, 335 P.2d 366; Waterworks and Sanitary Sewer Board v. Dean, 260 Ala. 221, 69 So.2d 704; Delony v. Rucker, 227 Ark. 869, 302 S.W.2d 287; McQuillin on Municipal Corporations, Vol. IV (1st Ed.), Sections 1725, 1801; Yokley, Municipal Corporations, Vol. 3, § 503, p. 215; 43 Am.Jur. 645, § 104; 50 A.L.R. 126.

The Texas cases support this rule of law. City of Texarkana v. Wiggins, 151 Tex. 100, 246 S.W.2d 622; City of Wichita Falls v. Landers, Tex.Civ.App., 291 S.W. 696, writ ref.; Bexar County v. City of San Antonio, Tex.Civ.App., 352 S.W.2d 905, writ dism.; Town of Highland Park v. Guthrie, Tex. Civ.App., 269 S.W. 193, writ ref.; City of Houston v. Lockwood Inv. Co., Tex.Civ.App., 144 S.W. 685, writ dism.; City of Galveston v. Kenner, 111 Tex. 484, 240 S.W. 894.

In Bexar County, Texas v. City of San Antonio, Tex.Civ.App., 352 S.W.2d 905, the Court said:

“There is a presumption in favor of the validity of a municipal ordinance and the burden of showing that it is invalid is upon the party attacking it, and unless such showing is clearly made the action of the city council in enacting the ordinance is conclusive and cannot be reviewed by the Court. City of Abilene v. Woodlock, Tex.Civ.App., 282 S.W.2d 736, error refused, certiorari denied, 351 U.S. 925, 76 S.Ct. 782, 100 L.Ed. 1455.
“The County contends that the above two ordinances were not enacted for the purpose of making a reasonable charge, but for the purpose of raising revenue. The County in making this contention does not take into consideration the value, at the present time, of the City’s sewerage collecting and treating system, its depreciation each year, the cost of replacing parts that can no longer be used, and the cost of making extensions to meet the rapidly growing population of the City. The burden was upon the County to show these things if it expected to establish the fact that the City’s sewer charges were for revenue purposes, and not a charge for service rendered, but in fact a tax. These items must be taken into consideration in determining whether a sewer charge is excessive.”

Evidence was admitted on the issue of the reasonableness of the rates and the trial court found them reasonable. On the record before us we cannot say that the trial court erred in this finding. The value of the system used in computing the rates included the properties to be acquired under the Trinity River contract. The anticipated revenue from the new water rates also included anticipated receipts from the sale of Trinity River water. If .the contract should be found invalid, these items could not properly be considered in determining the reasonableness of the water rates established by the ordinance under attack. Since the evidence on this issue will probably be more fully developed at a new trial, no useful purpose will be served by further discussion of the evidence introduced at this trial.

Appellants have also attacked the water rate ordinance on the ground that they were denied procedural due process by reason of the fact that the City failed to hold a public-hearing after proper notice at which time evidence could be presented, and, in fact, never received formal evidence of the necessity for a rate increase.

It is settled that “procedural due-process requires that a rate-fixing body give due notice to the utility involved and grant a hearing before enacting an ordinance.”' Glen Oaks Utilities, Inc. v. City of Houston,. 161 Tex. 417, 340 S.W.2d 783. In Connett et al. v. City of Jerseyville, 110 F.2d 1015, the Circuit Court of Appeals for the Seventh Circuit, held that the laws of Illinois-as interpreted by the Supreme Court of that, state made it clear that a “municipality,, when fixing utility rates or charges, is performing a public function of the municipality and acting as a rate making body as. distinguished from its private function as-owner and operator of the utility.” Appellants argue that if the City is acting as a rate making body, and not as owner of its-water system, when it determines the charges to be made for water, our decisions on-procedural due process require a holding; that the water rate ordinance is void.

We find no violation of due-process here. The holding of the Connett case, supra, is that a federal court cannot legislate for a municipality and that rate fixing is a legislative matter. Our Supreme Court held in Glen Oaks Utilities, Inc. v„ City of Houston, supra, that procedural due process requires notice and hearing before a utility company can be deprived of its right to set the rates at which it will furnish services or commodities. Here the regulating agency and the one to be regulated are one and the same. It is not necessary to give notice to the utility involved. Nor do we think due process requires notice to the customers of the utility of a public hearing prior to setting charges for the services and commodities, since the customers have no such vested rights as would make such protection appropriate. Art. 1175, Sec. 11, V.A.T.S., gives to home rule cities the power to prescribe rates for water furnished their customers. Art. II, Sec. 6, of the Houston City Charter, gives the City Council power to fix and regulate the price of water by ordinance. The water rate ordinance attacked here was enacted in the manner prescribed by law pursuant to powers granted to the City Council by the City Charter and the laws of the State of Texas. Neither the City Charter nor the Texas statutes require notice and hearing. As we have previously demonstrated, the courts of Texas are open to attacks on such ordinances if the rates prescribed are unreasonable, confiscatory or discriminatory. Under these circumstances no violation of due process is shown. Mulkey v. City of Kaufman, Tex.Civ.App., 286 S.W. 620, error ref.; State ex rel. Pan American Production Co. v. Texas City, Tex.Civ.App., 295 S.W.2d 697, aff’d 157 Tex. 450, 303 S.W.2d 780, appeal dism. 355 U.S. 603, 78 S.Ct. 533, 2 L.Ed.2d 523; Greer v. Railroad Commission of Texas, Tex.Civ.App., 117 S.W.2d 142; English Freight Co. v. Knox, Tex.Civ.App., 180 S.W.2d 633, error ref.; Leach v. Coleman, Tex.Civ.App., 188 S.W. 2d 220, error ref.; Shaw v. Lone Star Building & Loan Ass’n, 123 Tex. 373, 71 S.W.2d 863, opinion adopted.

Appellants suggest the possibility that this Court lacks jurisdiction of this appeal for the reason that the judgment does not specifically dispose of the issues raised in Cause No. 607,354-A. The order entered at a pre-trial hearing has been quoted previously.

Although the statement of facts reflects that the trial judge was of the opinion that the order required a joint trial of the issues relating to the referendum election and the validity of the bonds only, no further order was entered to this effect. In the final judgment entered in Cause No. 610,652 no mention is made of Cause No. 607,354-A. While the trial court could properly have consolidated these suits in their entirety by virtue of Rules 41 and 174, T.R.C.P., it did not undertake to do so. Sec. 4 of Art. 717m authorizes the court, on motion, to enjoin the commencement of any other action or proceeding contesting the validity of the securities or the rates authorized for the payment of, and the revenues or property pledged to secure, such securities, and provides that it shall order a joint hearing or trial of all such issues then pending in any action or proceeding in any court in the state, and may order all such actions or proceedings consolidated with the pending suit for declaratory judgment. The order entered at the pre-trial hearing reflects that it was made in response to the mandate of the- statute for a joint trial of issues. The order was too indefinite to give proper notice of the issues to be tried.

No final judgment could be entered in Cause No. 607,354-A by reason of the trial of certain issues in that case jointly with this cause since only one final judgment may be entered in a cause and since a judgment, to be final, must dispose of the entire case. The trial court made a finding of fact that the answer in this cause raised the identical issues and grounds of recovery alleged in Cause No. 607,354-A. However, since there was no proper order of consolidation and the judgment entered in Cause No. 610,652 does not purport to be a judgment in Cause No. 607,354 — A, either final or interlocutory, we conclude that the judgment entered in Cause No. 610,652 is a final judgment. If we are in error in this reasoning and the order of consolidation entered in this cause, construed in light of the court’s finding of fact previously referred to, is effective as an order consolidating the two causes, then the judgment entered either directly or by implication disposes of all issues raised in the consolidated cause and is a final judgment.

Appellants filed a plea in abatement based on the fact that Cause No. 607,354 — A was filed prior to this suit and was then pending in another district court. It is appellants’ contention that under the doctrine of Cleveland v. Ward, 116 Tex. 1, 285 S.W. 1063, jurisdiction of the subject matter having vested in the 125th District Court, the 55th District Court could not entertain jurisdiction to try this cause. We think, however, that Art. 717m specifically authorized this procedure and that such action was not beyond the legislative power. Under our construction of the statute the other matters presented by the plea in abatement present no error.

The City of Houston is authorized to issue its water system revenue bonds for the purpose set out in the bond ordinance by the provisions of Art. 1109a, V.A.T.S. It was stipulated that at the time Ordinance No. 62-1367, authorizing the issuance of the bonds, was adopted it was the purpose of the City of Houston to use $9,000,000.00 of the proceeds of such bonds in carrying out the obligations assumed by the City under the Trinity River Project contract dated September 9, 1959.

Appellants contend that if the Trinity River contract is valid, the City must issue its bonds under the authority granted by Article 1109e or Article 1109h, V.A.T.S. Art. 1109a, Sec. 7, authorizes the City of Houston to issue revenue bonds for the purpose of providing extensions, replacements, betterments, additions or improvements which in the judgment of the City Council are necessary to render adequate service. City of Houston v. Allred, 123 Tex. 334, 71 S.W.2d 251; City of Houston v. Mann, 139 Tex. 640, 164 S.W.2d 548. We think it a matter of common knowledge that large cities are required to go beyond their city limits to secure adequate supplies of water. Certainly the erection of dams to impound water and of facilities for protecting and transporting water would adhere literally to the purposes authorized by Art. 1109a and the fact that these facilities would be erected outside of the city limits is immaterial. City of New Braunfels v. City of San Antonio, Tex.Civ.App., 212 S.W.2d 817, ref., n. r. e.; City of Dallas v. State, Tex.Civ.App., 28 S.W.2d 937, writ ref. It is not necessary for the bond ordinance to specify the particular improvements to be constructed or acquired. Garcia v. Duval County, Tex.Civ.App., 354 S.W.2d 237, error ref., n. r. e. Art. 1109e and Art. 1109h do not limit the authority of the City in issuing bonds under the provisions of Art. 1109a, since they may be construed as giving cumulative rights, and! there will be no necessarily conflicting provisions.

Appellants contend that the-trial court erred in finding Ordinance No. 62-728, prescribing rates to be charged for treated water, a properly enacted and valid' ordinance. The City in its original petition! alleged that the ordinance was properly enacted and that it is a valid ordinance despite the fact that efforts were made to file-petitions to require the submission of said ordinance to popular vote at a referendum! election under the provisions of Article-VHb of the Houston City Charter. The-burden rested on the City to prove the validity of the ordinance. Evidence was produced sufficient to support the trial court’s-finding that the ordinance was validly enacted. Evidence was also introduced to show that referendum petitions were filed with, the City Secretary, but the evidence is insufficient to show that the petitions were properly signed and verified. The Charter provides that if a petition protesting the enactment or enforcement of an ordinance signed by the required number of voters- and properly verified, be filed with the City-Secretary within a prescribed time limit,, the ordinance shall be suspended from taking effect. No evidence was introduced', sufficient to show that the petitions were,, or were not, properly signed or verified. Since the City sought a declaration that the-ordinance was valid, it had the burdent of showing that the referendum petitions-were insufficient.

In Denman v. Quin, Tex.Civ.App.,. 116 S.W.2d 783, error ref., the court said:

“ * * * ordinances which must rest upon minute investigation of facts and; figures, or application of expert, skilled,. or technical knowledge, or upon audits, or upon close and careful study or ascertainment or adjustment of masses of facts and figures, such as the elements entering into matters of rate making, cannot be efficiently initiated or passed upon by the public en masse, however intelligent or patriotic they may be.”

The water rate ordinance was not subject to the referendum provision of the City Charter. Dallas Ry. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106; Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321. The evidence, therefore, was sufficient to support the finding that the ordinance is valid.

Appellants have presented numerous other assignments of error that require no discussion in view of the disposition made of the points of error previously determined.

Appellee’s motion to strike appellants’ statement of facts is denied. The judgment of the trial court is reversed and this case is remanded for a new trial.


source: Caselaw Access Project

author: SHARPE, Justice.

license: Public Domain

text:
    Christian R. HOLMES and William L. Dugger, Appellants, v. Albert D. McKNIGHT et al., Appellees.
    No. 6.
    Court of Civil Appeals of Texas. Corpus Christi.
    Dec. 5, 1963.

      E. G. Hall, of Strickland, Wilkins, Hall & Mills, Mission, for appellants.
    L. C. McLean, of Kelley, Looney, McLean & Littleton, Cecil Edwards, Edinburg, R. M. Bounds, McAllen, W. H. McDonald, Pharr, for appellees.
   SHARPE, Justice.

This is an appeal from a summary judgment rendered in favor of appellees, Albert D. MeKnight and others, hereafter “McKnight”, against appellants, William L. Dugger and Christian R. Holmes, hereafter “Dugger and Holmes”, and from the refusal of the trial court to grant the motion for summary judgment of Dugger and Holmes. In the trial court, MeKnight, his wife, and others claiming under him, that is, William H. McDonald, R. M. Bounds and Hazel Edwards were plaintiffs, and Dugger and Holmes were defendants.

MeKnight brought this suit to establish ownership in certain overriding royalties and for collection of payments due him under an instrument dated September 19, 1959, hereafter referred to as the “extension agreement”. The parties filed cross-motions for summary judgment, and the trial court sustained that of appellees and denied that of appellants. The judgment recites that there is no genuine issue of material fact, and this is conceded to be true by all parties on this appeal.

The judgment of the trial court allowed recovery to each appellee of an undivided interest in certain overriding royalties and for payments accruing to December 31, 1962, amounting to $5,108.37, plus interest.

We have concluded that the case was properly decided and the judgment should be affirmed.

All parties agree that the case turns upon the meaning of said extension agreement of September 19, 1959. Appellants contend that they had a right to terminate it in accordance with one of its provisions, and appellees say that the agreement is still in full force and effect. The instrument dated September 19, 1959, omitting detailed property descriptions and minor formal provisions not material to this appeal is set out below.

Appellants’ first point is that the trial court erred in sustaining McKnight’s motion for summary judgment and in denying that of Dugger and Holmes, because McKnight’s right to receive the sums in question had automatically terminated in accordance with the express written agreement of the parties. Appellants’ second point is that the trial court erred in rendering judgment because, as a matter of law, Dugger and Holmes were not estopped nor had they waived their right to claim automatic termination of the obligation sued upon by McKnight.

Appellees contend that the trial court properly sustained their motion and urge nine counterpoints in support of their position, in substance, as follows: (1) Paragraph (a) of the agreement is an unconditional conveyance of royalties to appel-lees; (2) the alleged defense of forfeiture is not available to appellants; (3) when the instrument is construed as a whole, it defeats appellants’ contention that the agreement is subject to forfeiture at the instance of appellants; (4) a forfeiture under the facts disclosed by the record in this case would be contrary to equity and good conscience; (5) appellants cannot plead and rely on their own failure to perform as a release of their obligation to perform; (6) a forfeiture by appellants would be contrary to the intent of the parties; (7) appellants are estopped under the facts to declare forfeiture; (8) appellants waived any right, if any such right ever existed, to declare the agreement forfeited; and (9) no construction of the agreement could be placed on it which requires the return of the consideration paid by appellants to secure its execution and delivery.

The record shows, and it is conceded by all parties, that there is production in paying quantities of oil and gas not only from the well on the Citriana Tract, but also from another well, known as the “Evans” well, located on one of the properties described in Exhibit “A” of the extension agreement, and that there has been a default by appellants in payment of overriding royalty to appellees for a period of six continuous months.

The controverting affidavit of William L. Dugger, Jr., attached to appellants’ answer to appellees’ motion for summary judgment, reflects the factual background of the case as follows: That the original lease with McKnight provided that his land should be unitized with other adjacent lands, but it developed that the McKnight leasehold could not be so unitized; the agreement of September 19, 1959, was entered into in order to perpetuate the McKnight lease without the necessity for drilling on the property covered by it; by the late fall and winter of 1959, field rules were instituted covering the McKnight lease, and another company successfully obtained an injunction against fracturing procedures in wells in the immediate vicinity, all of which made it economically unfeasible to drill the McKnight property; because of such factors, the engineers of Dugger and Holmes recommended that the McKnight lease be terminated and no sums were paid to perpetuate the same from and after the month of October, 1959; Dugger and Holmes received notice of the claim of W. H. McDonald by copy of letter dated December 12, 1959; the suit between McDonald and McKnight did not terminate until January 29, 1962; on March 17, 1962, after appel-lee McDonald made inquiry as to payment of royalties, Holmes and Dugger caused a release to be filed, having determined long before to allow the McKnight lease to terminate by non-payment of sums required to perpetuate same; the release was intended to become effective as of the expiration of six months from the date of payment of last royalty; had any of the appellees requested advice as to whether Holmes and Dugger would elect to continue the McKnight lease in force, Holmes and Dugger “would have acquainted them with our intentions in the matter.”

The affidavit of L. C. McLean, attached to appellees’ amended motion for summary judgment shows, in part, the following: He conducted the negotiations for appellees in connection with the agreement of September 19, 1959; prior to the execution of said agreement, he wrote a letter to appellants’ attorneys on August 5, 1959, in which he suggested certain changes and confirmation of the understanding and in which he commented concerning Exhibit “A” of the contract (which had been sent to him by a representative of Dugger and Holmes by letter of July 27, 1959) ; he also requested that Dugger and Holmes confirm that Exhibit “A” included all of their interests in the area, regardless of in whose name the same might be held; by letter of November 7, 1959, Dugger and Holmes furnished him a map of the City of Pharr containing markings as to certain leases and stating their intention as to the participation of McKnight in leases then held or to be acquired in the area.

The record further contains a series of letters during the period of time from December 12, 1959, to April 27, 1962, concerning demand for payment of royalties by William H. McDonald, who acquired his interest by conveyance from the McKnights. Letters from Dugger and Holmes and their representatives written during the month of January, 1960, reflect that they decided to withhold payments of royalty under the extension agreement of September 19, 1959, until such time as they were furnished with a joint instruction from the McKnights and McDonald concerning their respective royalty interests or a judgment of a court fixing the same. Such letters were consistent with recognition of the obligation to pay such overriding royalties so long as Dugger and Holmes could be certain that such payments were made to the right persons. There was nothing in such correspondence which would lead anyone to believe that Dugger and Holmes either had terminated, or intended to terminate, the McKnight lease or the extension agreement of September 19, 1959. McDonald and McKnight litigated their differences and a certified copy of the final judgment of February 27, 1962, fixing their interests, was furnished to the attorney for Dugger and Holmes. On March 17, 1962, McDonald made inquiry of Dugger and Holmes as to payments to him, and by letter of April 27, 1962 from an attorney for Dugger and Holmes was advised, along with the McKnights, that a release of the McKnight lease, delivered to him by Dugger and Holmes, had been recorded. Said release was dated March 20, 1960, was acknowledged on April 9, 1962, and was recorded on April 27, 1962, or thereafter.

Analysis of the extension agreement dated September 19, 1959, reflects the following: The contract includes twelve material paragraphs, the first five of which are “recital” provisions. The following seven paragraphs contain “agreement” provisions. The recital provisions set out the execution of the original lease; that appellants had acquired leases on the Citriana Tract and other lands lying to the north and east of it, described in Exhibit “A” of the contract; that production of oil and gas had been obtained on the Citriana Tract, and an additional well was to be drilled on the lands included in Exhibit “A”; that “Holmes and Dugger are desirous of perpetuating the McKnight lease without presently drilling on it.” The agreement provisions set out that the original McKnight lease shall be extended and perpetuated beyond its termination date (which would have been July 14, 1960), and in Paragraph 1 there is an unconditional promise by Holmes and Dugger to make payments to the McKnights for “so long as oil, gas or other minerals are produced in paying quantities from the ‘Citriana Tract’, or from any of the lands described in Exhibit ‘A’.” Immediately following Paragraph 1, there is a paragraph designated (a) which contains an unconditional conveyance and assignment to appellees of overriding royalties on oil and gas produced and saved from said adjoining tracts. Aside from the termination clause, which we will discuss more fully hereafter, the remaining provisions cover delivery and payment to McKnight free of development and operation costs, except certain taxes and pro-rated expenses for treating and preparing the products for market, for payments to McKnight directly by the pipe line operators after July 1, 1959, the address to be used for payments to McKnight, and for non-user of the surface of the McKnight tract and for release of the said surface under certain conditions.

The termination clause of the extension agreement provides, in substance, that in the event Dugger and Holmes should fail to pay the overriding royalties for a continuous period of six months “then on such date this agreement shall automatically terminate and be of no further force and effect and the McKnight lease shall terminate unless drilling or reworking operations are then in progress. . . . ” It is this provision which appellants contend gives them a right to terminate the agreement of September 19, 1959, so that appellees would have no further rights except to collect the overriding royalty payments from the adjoining properties for a period of six months.

It must be kept in mind that in the original lease McKnight was grantor and appellants were grantees of the mineral estate on property owned by McKnight; and that McKnight’s rights under said lease were extended and perpetuated by the extension agreement. In the extension agreement appellants were grantors and McKnight was grantee of overriding 'royalty from tracts owned by other persons on which appellants were lessees; and the conveyance of such royalty and the agreement to pay the same to McKnight constituted the consideration for the extension of the original McKnight lease.

Appellants concede that much difficulty in the decision of this appeal can be removed by a determination of the true nature of the extension agreement of September 19, 1959. It is apparent to us that it must be treated as a conveyance of an interest in land, particularly since the overriding royalty assigned to appellees is a part of the determinable fee owned by appellants as lessees of the adjoining tracts. Although a “fee simple” title is acquired by the lessee under an oil and gas lease in the sense that it might continue forever, such title is a “determinable fee” since it might come to an end upon'certain contingencies, particularly where there is a cessation of use of the land for purposes of oil and gas exploration, development and production. McMahon v. Christmann, 157 Tex. 403, 303 S.W.2d 341, 304 S.W.2d 267 (1957); Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W.2d 564 (1945); Sheffield v. Hogg, 124 Tex. 290, 77 S.W.2d 1021, 80 S.W.2d 741 (1934); Stanolind Oil & Gas Co., v. Barnhill, 107 S.W.2d 746, (Tex.Civ.App., 1937, err. ref.); Colquitt v. Eureka Producing Co., 63 S.W.2d 1018, (Tex.Comm.App., 1933); Waggoner Estate v. Sigler Oil Co., 118 Tex. 509, 19 S.W.2d 27 (1929); Stephens County v. Mid-Kansas Oil & Gas Co., 113 Tex. 160, 254 S.W. 290, 29 A.L.R. 566 (1923).

The instrument in question must be considered as an entirety and each paragraph must be considered with reference to every other paragraph so that the effect of one on the other may be determined. It must be presumed that each provision was placed in it for a particular purpose and a construction which would render any provision meaningless should be avoided. Provisions which are in apparent conflict must be reconciled and harmonized whenever possible so that the instrument as a whole may be given effect. McBride v. Hutson, 157 Tex. 632, 306 S.W.2d 888 (1957); Woods v. Sims, 154 Tex. 59, 273 S.W.2d 617 (1955); Benge v. Scharbauer, 152 Tex. 447, 259 S.W.2d 166 (1953).

In seeking to arrive at the true intention of the parties we attach significance to the provisions of the extension agreement whereby appellants agreed unconditionally to make payments to appellees of overriding royalties from the adjoining tracts for so long as there is production in paying quantities from them; and that there was an unconditional conveyance and assignment to appellees of overriding royalties on the adjoining tracts; and that the purpose of the extension agreement, made well in advance of the expiration date of the original lease with McKnights, was that Holmes and Dugger were desirous of perpetuating the McKnight lease without then drilling on it; that the other provisions as to payment and delivery, payment of taxes and pro-rated costs of preparation of the product for market, and payment to the McKnights directly by the pipe line operator, all are consistent with continued ownership of the overriding royalties from the adjoining tracts by the McKnights and inconsistent with termination at the sole option of appellants.

The nature of appellees’ overriding royalty interest cannot seriously be questioned since the same is definitely fixed by the extension agreement. The controlling issue relates to when and how such interest might be terminated.

The contingency that there may be a cessation of production of oil and gas in paying quantities on the adjoining tracts and a consequent failure to pay overriding royalty is not here involved because such event has not taken place and such special limitation is, therefore, not operative. The question as to right of termination then narrows to the contingency that appellants shall fail to pay the overriding royalty for a period of six continuous months.

We hold that the termination clause does not create a special limitation but is no more than a condition subsequent. The occurrence of such condition subsequent would not produce an automatic termination of the extension agreement and the McKnight lease, but would confer only a power to terminate the same, which would exist solely for the benefit of appellees. The event which would make the termination clause operative, i. e., a six months default by appellants of their obligation to pay the specified overriding royalty, is solely within the control of appellants and would be a consequence of breach of duty imposed upon them by the agreement. In our opinion, it would not be proper to impute to the parties an intent to make such event operate to defeat or to permit termination of the royalty estate granted by appellants to ap-pellees, either automatically or at the election of appellants. To so construe the extension agreement would be to permit appellants to discharge their obligation to make the specified payments of royalty because of their own default and breach of express provisions and duties. Texlouana Producing & Refining Company v. Wall, 257 S.W. 875, (Tex.Comm.App., 1924); Golden West Oil Co. No. 1 v. Golden Rod Oil Co., 285 S.W. 631, (Tex.Civ.App., 1926), affirmed, 293 S.W. 167, (Tex.Comm. App., 1927); Cotherman v. Oriental Oil Co., 272 S.W. 616, (Tex.Civ.App., 1925, no writ history) ; Stovall v. Texas Co., 262 S. W. 152, (Tex.Civ.App., 1924, writ refused); Empire Gas & Fuel Co. v. Pendar, 244 S.W. 184, (Tex.Civ.App., 1922, d. w. j.); Cle-menger v. Flesher, 185 S.W. 304, (Tex. Civ.App., 1916, writ refused); Knight v. Chicago Corporation, 183 S.W.2d 666, (Tex. Civ.App., 1944), affirmed on other grounds, 144 Tex. 98, 188 S.W.2d 564 (1945); James Stewart & Co. v. Law, 228 S.W.2d 601 (Tex.Civ.App., 1950), affirmed 149 Tex. 392, 233 S.W.2d 558, 22 A.L.R.2d 639 (1950); The Nature of the Property Interests Created by an Oil & Gas Lease in Texas, 7 Texas Law Review 1, 17; 8 Texas Law Review 483, 488, 489, (A. W. Walker, Jr-)-

We find that the termination clause, properly construed, evidences an intent of the parties that the six month default therein mentioned should be a condition subsequent annexed to the grant of mineral leasehold rights from McKnight to appellants, entitling appellees, at their option, to terminate such rights upon the occurrence of such event. Obviously, appellees have not elected to terminate, but, instead, have affirmed the contract and brought this suit.

The termination clause of the extension agreement is not a special limitation; neither is it a condition subsequent which operates in favor of appellants so as to authorize termination by them; and there is no clear and unambiguous provision in the extension agreement which would make available to appellants a right or defense of forfeiture under the conditions shown by the record herein. Link v. Texas Pharmacal Company, 276 S.W.2d 903, (Tex.Civ. App., 1955, no writ history); Knight v. Chicago Corporation, 144 Tex. 98, 188 S.W. 2d 564 (1945); Ryan v. Kent, 36 S.W.2d 1007, (Tex.Comm.App., 1931) ; Waggoner Estate v. Sigler Oil Company, 118 Tex. 509, 19 S.W.2d 27 (1929); Decker v. Kirlicks, 110 Tex. 90, 216 S.W. 385, (1919); Mound Company v. Texas Company, 298 F.2d 905 (5th Cir. 1962) ; West v. Continental Oil Co., 91 F.Supp. 505 (D.C.Tex.1950), affirmed, 194 F.2d 869 (5th Cir. 1952).

The construction of the extension agreement contended for by appellants would allow them to terminate the original McKnight lease, as well as the extension agreement, some four months prior to the expiration date fixed in the said original lease. Such result would be directly contrary to the expressed desire of Dugger & Holmes of “perpetuating the McKnight lease without presently drilling on it” and would also be directly contrary to. appellants’ express agreement that the lease on the McKnight tract “shall be extended and perpetuated beyond the present date of termination * * * ”, and, in our opinion, would not be reasonable.

Under the construction we have placed on the extension agreement of September 19, 1959, when it is considered as a whole, there is no real conflict between the termination clause and its other provisions. Each and all of said provisions can be harmonized and a construction which would make any provision meaningless is avoided. We believe that the conclusions reached by us reflect the real intent of the parties when they entered into the extension agreement.

The foregoing holdings make unnecessary a discussion of the estoppel and waiver contentions heretofore mentioned. Since appellees have a right to the ownership of the overriding royalties and to the payments in question, there is no necessity for them to place reliance upon either of such theories.

The judgment of the trial court, granting appellees motion for summary judgment, is necessarily based upon the premise that the original McKnight lease and the agreement of September 19, 1959, continue in full force and that appellants’ attempted termination of same was ineffective. We are in agreement with such premise and the actions of the trial judge in sustaining the motion for summary judgment filed by appellees and in denying that of appellants.

Affirmed.

      . “THE STATE OE TEXAS COUNTY OE HIDALGO
      “WHEREAS, on the 15th day of July, A.D. 1958, Albert D. MeKnight and wife Betty K. MeKnight made, executed and delivered to A. W. Taylor, Trustee, a certain Oil, Gas and Mineral Lease, covering the following described land in Hidalgo County, Texas, hereinafter referred to as MoKnight Traot, to wit: (here follows a metes and bounds description) ;
      “WHEREAS, on September 25, 1958, the said A. W. Taylor, Trustee, made, executed and delivered an Oil and Gas Lease to Christian R. Holmes and William L. Dugger, covering the following described land in Hidalgo County, Texas, hereinafter referred to as Gitricutia Tract, to wit: (here follows a metes and bounds description) ;
      “WHEREAS, the said Christian R. Holmes and William L. Dugger, thereafter acquired oil, gas and mineral leases on certain lands lying to the north and east of the land in the Citriana Tract, which said lands are more particularly described in the attached Exhibit ‘A’; and,
      “WHEREAS, production of oil and gas has since been obtained on the Citriana Tract, and the said Holmes and Dugger are committed to drill a further and additional well on the lands described in Exhibit ‘A’, to a depth of not less than 9500 feet or to commercial production, if encountered at a lesser depth; and, “WHEREAS, Holmes and Dugger are desirous of perpetuating the McKnight lease without presently drilling on it; “NOW, THEREFORE, it is agreed and understood as follows:
      1. The said Albert D. McKnight and wife Betty K. McKnight hereby agree that the Oil, Gas and Mineral lease on the McKnight Tract shall be extended and perpetuated beyond the present date of termination and for so long and during such period of time as the said Albert D. McKnight and Betty K. McKnight shall be paid in the manner hereinafter set out, and Holmes and Dugger agree to make such payments in the manner hereinafter set out so long as oil, gas or other minerals are produced in paying quantities from the ‘Citriana Tract’, or from any of the lands described in Exhibit ‘A’.
      “ (a) Christian R. Holmes and William L. Dugger do hereby Bargain, Sell, Convey and Assign unto Albert D. McKnight and Betty K. McKnight, hereinafter called Assignee, an overriding royalty equal to 1/96 of 8/8 of all oil which may be produced and saved by said Christian R. Holmes and William L. Dugger, their successors and assigns, from the ‘Citriana Tract’ or from any of the lands described in Exhibit ‘A’; delivery of such oil to be made free of cost to the credit of said Assignee, their successors and assigns; into the pipe line or lines to which the well or wells on said premises may be connected. On gas, including casinghead gas, or other gaseous substance, sold or used off the premises or in the manufacture of gasoline or other product therefrom, Assignee shall be paid the market value at the well of 1/96 of 8/8 of that so sold or used, provided that on gas sold at the wells the overriding royalty shall be 1/96 of 8/8 of the amount realized from such sale.
      “The interest assigned shall be free of all cost of development, operating and maintaining such lease, but Assignee shall pay all tares, including ad valorem, production and severance taxes, assessed against such interest, and a pro rata part of all expense incurred in treating and preparing the oil or gas for market. “The said Albert D. McKnight and Betty K. McKnight shall be entitled to payment for their share of production from the Citriana well beginning as of July 1, 1959, and thereafter only and shall not be entitled to any interest in such production prior to that date; and such payments shall be made to them directly by the pipe line operators.
      “In the event the said Christian R. Holmes and William D. Dugger, their successors or assigns, should fail to pay the overriding royalties as is hereinabove provided for a continuous period of six months, then on such date this agreement shall automatically terminate and be of no further force and effect and the McKnight lease shall terminate unless drilling or reworking operations are then in progress, in which event the lease shall remain in force so long as such operations are prosecuted with no cessation of more than 30 consecutive days, and in the event of production of oil, gas or other mineral so long thereafter as oil,, gas or other mineral is produced.
      “All payments herein provided to be paid shall be paid to the credit of Albert D. McKnight, Box 674, Pharr, Texas. “Assignor agrees that it will not use the surface of the McKnight Tract and upon request the surface will be released provided however that Assignee shall not use or permit it to be used for drilling purposes so long as this agreement is in force and effect.
      “This agreement shall be binding upon the parties, their executors, administrators, heirs and assigns.
      “WITNESS the hands of the parties, this 19 day of September, A.D. 1959.’’’ (Signatures and acknowledgments of Albert D. McKnight, Betty K. McKnight, Christian R. Holmes and William L. Dug-ger, Jr.)


author: DIXON, Chief Justice.

text:
    Len ROGERS et al., Appellants, v. STIMSON CONTRACTING COMPANY and Stimson Corporation, Appellees.
    No. 16224.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 15, 1963.
    Rehearing Denied Dec. 13, 1963.

      Biggers, Baker, Lloyd & Carver, Ralph • D. Baker and Kenneth C. Stephenson, Dallas, for appellants.
    Leachman, Gardere, Akin & Porter and Edward E. Crowell, Jr., Dallas, for appel-lees.
   DIXON, Chief Justice.

Appellant Len Rogers, individually and as Next Friend for his 19-year-old son, Jerry Rogers, sued Stimson Contracting Company, a corporation, and Stimson Corporation for damages arising from personal injuries sustained by Jerry Rogers in a collision between motor vehicles. Appellant’s son was driving his car on the afternoon of August 14, 1961, in an easterly direction on Redbird Lane in the City of Dallas, when the car collided head-on with a piece of road construction machinery owned and operated by appellees.

A jury, answering 22 Special Issues, returned a verdict finding appellees’ employee negligent in several particulars, each of which was a proximate cause of the collision. But the jury in answering Special Issues Nos. 13 and 14 also found that Jerry Rogers was guilty of contributory negligence in that he failed to keep a proper lookout and that such failure was a proximate cause of the collision. Based on the jury verdict judgment was rendered in favor of appellees that appellant take nothing.

In his first three points on appeal appellant charges jury misconduct in that (1) one of the jurors on voir dire examination failed to reveal that he had studied law, (2) certain representations were made during the jury deliberations to the effect that the jury’s answer to Special Issue No. 14 was immaterial (whether Jerry Rogers’ failure to keep a proper lookout was a proximate cause of the collision) and (3) members of the jury “traded out” with each other in answering certain special issues.

We have concluded that none of appellant’s first three points presents reversible error. As to point (1), none of the four jurors who testified at the hearing on the motion for new trial saw or remembered that the challenged juror failed to raise his hand in response to the court’s question in regard to the study of law.

As to point (2) the evidence shows that at first some of the jurors wished to answer “No” to Special Issue No. 14. All other issues had already been answered including the answer of $25,000.00 to the damage issue. The evidence indicates that some of the jurors felt and stated that the answer to Special Issue No. 14 would not make any difference. However, the evidence will support a finding that in last analysis each juror reached such conclusion through the exercise of his or her own mental processes. For example, one juror testified as follows: “I didn’t change my mind, I just agreed, because we had been there a long, long time with a great deal of discussion going on, and I was convinced that this question would not be important.” Another juror testified as follows:

“Question: Well, did these representations have any effect on your answers, changing your answer?
“Answer: What representations? * * * * *
“Question: Is there anything else that changed your mind, that made you change from your answer from — on this particular issue from ‘No’ to ‘Yes’?
“Answer: Well, the only thing, the only reason I changed my mind was that I didn’t think it mattered.”

Our Supreme Court has held that a juror cannot be permitted to preserve or destroy his verdict by testifying to the mental processes by which he reached his verdict. Barrington v. Duncan, 140 Tex. 510, 169 S.W.2d 462. The Supreme Court has further held that “ * * * an express misconstruction of the court’s charge, which does not bring to the attention of the jury law or facts outside of the record should not be regarded as misconduct within the meaning of Rule 327 [T.R.C.P.].” Whited v. Powell, 155 Tex. 210, 285 S.W.2d 364. The mere fact that jurors discussed the effect of their answer to a special issue is not alone sufficient to constitute misconduct of the jury. Maryland Casualty Co. v. Hearks, 144 Tex. 317, 190 S.W.2d 62; Selmikeit v. El Paso City Lines, Tex.Civ. App., 365 S.W.2d 840.

As to point (3) we must bear in mind that in the very nature of things it is not to be expected that twelve persons at the start of a conference will immediately find themselves in unanimous agreement in regard to each of twenty-two controversial questions. It is contemplated that jurors will engage in discussion and argument; and that if unanimity in answering the questions is ever to be reached concessions must be made and initial opinions and conclusions must in some instances be modified or even abandoned in the light of convincing discussion and argument. Such concessions and modifications of opinions will not ordinarily constitute jury misconduct. Kendall v. Southwestern Public Service Co., Tex.Civ.App., 336 S.W.2d 770.

In the instant case there is evidence that at least one juror stated that if an answer of “No” was to be given to Special Issue No. 14 she would have to reconsider her answer to the damage issue, as she would then be unwilling to allow appellant $25,-000.00 damages. But there is no evidence that any juror persisted in such intention. The lady who is alleged to have made the statement did not testify.

In this connection we quote from the testimony of one of the jurors:

“Question: What did you all do, if you wanted to answer an issue ‘no’, and she wanted you to answer another issue another way ?
*****
“Answer: Well, we just talked back and forth continually about the different phases of the accident, and generally speaking, we were all in agreement on everything but several of the issues.
“Question: All right. What would you call that then, what you did with Mrs. Teel?
“Answer: Well, it would be very difficult, as I told you, to say that we were trading off, but allowing for this old human element, perhaps, in legal terms, that might be what you would call it. I would hate to have to admit it, because I didn’t feel at the trial, nor do I feel now, that I actually traded off anything. I felt in my mind that my decision was mine alone, after being convinced by the other jurors, * * ” (emphasis ours)

We also quote from the jury foreman’s testimony :

“Question: Now, of course, there were differences among you, I gather, as you would find on various phases of the special issues; there would be some for, some against, isn’t that true ?
“Answer: There was only about two or three.
*****
“Question: But finally you all did get together, the jury under your direction, and they would vote unanimously, wouldn’t they, before you wrote the issue down — the answer down?
“Answer: Yes, sir, before I wrote it down, it was unanimous.
“Question: Yes, sir. You wouldn’t write it down until there was a unanimous vote?
“Answer: Correct.”

Under Rules 327 and 434 Texas Rules of Civil Procedure the burden is upon complainant not only to prove an act of jury misconduct but also to show probable harm resulting from such misconduct. Taylor v. Dallas Transit Co., Tex.Civ.App., 351 S.W.2d 554. Since the trial court overruled appellant’s motion for new trial we must presume that the court found that appellant had failed to meet this burden. The record shows that following the return of the verdict the court polled the jury and was informed that each juror answered each particular issue as shown on the jury’s verdict. After a study of the whole record we are convinced that the evidence will support the presumed finding of the trial court. Appellant’s first three points are overruled.

In his fourth point appellant asserts that the court erred in refusing to consider an additional ground of jury misconduct which appellant sought to raise for the first time in a pleading denominated “Trial Amendment and/or Supplement to Plaintiff’s Amended Motion for New Trial”. This instrument was filed after the hearing on the amended motion for new trial. It alleges that the answer to the damage issue was a quotient verdict.

The fourth point is without merit for three reasons: (1) Rule 329-b provides that no more than one amended motion for new trial may be filed. Hartford Accident & Indemnity Co. v. Gladney, Tex.Civ.App., 335 S.W.2d 792. (2) Since the jury found that Jerry Rogers was guilty of contributory negligence which was a proximate cause of the collision, the answer to the damage issue is immaterial. (3) There is no showing that the jurors agreed to be bound by a quotient verdict. The fourth point is overruled.

Appellant’s fifth and sixth points are that the court erred (5) in overruling his motion for judgment non obstante veredicto and (6) his motion to disregard the jury’s findings that Jerry Rogers failed to keep a proper lookout and that such failure was a proximate cause of the collision. Appellant argues that other issues submitting the specific elements of proper lookout were all answered in favor of appellant as to negligence, hence the court should disregard the two findings in regard to proper lookout. In support of this contention appellant cites us to E. C. Cunningham et ux. v. Suggs, Tex.Civ.App., 340 S.W.2d 369.

We do not agree with appellant. It is true that the jury found that Jerry Rogers failed to observe a barricade to the west of the area under construction, failed to apply his brakes properly and failed to turn his car to his right, but that such acts either were not negligence or were not proximate causes of the collision. And the jury found that Jerry Rogers was not driving his car too fast. However, under the circumstances of this case the above issues did not encompass all the specific elements of proper lookout on the part of Jerry Rogers.

The collision took place in the afternoon on a stretch of the road which was under construction. The weather was cloudy. There had been a drizzle all morning. One-half of the road was blocked. The other half was used by both lines of traffic. There is evidence that a machine called a front-end loader had travelled West toward Jerry Rogers about 50 feet before the collision. There is also evidence that when the operator saw Jerry approaching he stopped the front-end loader and attempted to get the machine in reverse in an effort to avoid the collision. There is testimony that the loader had been traveling straight West toward Jerry and had not been off the road. Another workman testified that he was some distance in front of the loader and that he began waving his hands and later a shovel at Jerry in an attempt to flag him down when Jerry was 175 or 200 feet away. Jerry testified that he could have stopped his car within 50 or 60 feet. Jerry also testified as follows:

“Question: You never did see the front-end loader at all until you were about a car length and a half from it?
“Answer: Well, about a car length.
I just saw a yellow blob. I don’t know how close I was.”

In order to sustain his fifth and sixth points it was necessary for appellant to show that there was no evidence to support the jury’s finding that Jerry Rogers failed to keep a proper lookout, which failure was a proximate cause of the collision. Burt v. Lochausen, 151 Tex. 289, 249 S.W.2d 194; Goff v. Lubbock Building Products, Tex.Civ.App., 267 S.W.2d 201-203; Ayala v. Maume, Tex.Civ.App., 318 S.W.2d 698. In the light of the evidence we must overrule the fifth and sixth points.

In his seventh to twenty-first points inclusive, appellant complains of the court’s refusal to submit certain requested special issues which would have inquired about additional alleged acts of negligence on appellee’s part. The failure of the court to submit these issues does not constitute reversible error for two reasons: if the issues had been submitted and the jury’s answers had been favorable to appellant, said answers would not have entitled appellant to judgment in view of the jury’s answers finding contributory negligence on the part of Jerry Rogers. Consolidated Furniture Co. v. Kelly, Tex.Civ.App., 369 S.W.2d 53; (2) the issues were either not drawn in “substantially correct wording”, Rule 279 T.R.C.P., or were covered by other issues submitted by the court. Eckert-Fair Construction Co. v. Flabiano, Tex.Civ.App., 342 S.W.2d 629-633. Appellant’s seventh to twenty-first points inclusive are overruled.

In his twenty-second to twenty-fifth points inclusive appellant says that the jury’s answers to Special Issues Nos. 13 and 14 are either without support in the evidence, or that the answers are against the weight of the evidence. In our discussion of appellant’s fifth and sixth points we referred to evidence regarding proper lookout. The evidence was sufficient to support the jury’s answers to Special Issues Nos. 13 and 14. Appellant’s twenty-second to twenty-fifth points inclusive are overruled.

The judgment of the trial court is affirmed.

Affirmed.

       For example, requested Issue No. 1 would have asked the jury whether appellees’ operator was driving the front-end loader on the “wrong” side of the street. Art. 6701d, See. 52, Vernon’s Ann.Oiv.St. provides that the driver of a vehicle shall drive on the “right half” of the roadway. However, the statute expressly makes an exception when the right half is closed to traffic while under construction or repair, as was the case here. To ask the jury whether the front-end loader was being driven on the “wrong” side of the roadway would be to ask the jury to answer a question of law.