author: ORITZ, C. CURETON, C. J.

text:
    FILIPOS et al. v. CHOUKE et al.
    No. 5346.
    Supreme Court of Texas.
    June 10, 1931.
    Roy Johnson, of Galveston, for plaintiffs in error.'
    Stewart, Damiani & Harris, Maco Stewart, and W. N. Zinn, all of Galveston, for defendants in error.
   ORITZ, C.

The record in this case discloses the following:

Chris Chouke is the owner of certain land on Galveston Island. This title is held by Chouke by mesne conveyances from Jones and Hall, to whom it was originally patented on November 28, 1840. This patent was validated by act of the Regislature of Texas passed February 8, 1854. Gammel’s Raws of Texas, vol. 4, p. 125. The validating act in question reads as follows;

“An Act to confirm the patent issued by the Commissioner of the General Rand office to Revi Jones and Edward Hall, on the twenty-eighth day of November, eighteen hundred and forty.
“Section 1. Be it enacted by the Regisla-ture of the State of Texas, That the patent issued by the Commissioner óf the General Bandoffice, on the twenty-eighth day of November, eighteen hundred and forty, to Revi Jones and Edward Hall, for lands on Galveston Island, be, and the same is hereby confirmed, and the State of Texas disclaims any title in and to the lands described in said patent, in favor of the grantees and those claiming under them.
“Passed, February 8,1854.”

The original survey lines of the - Jones and Hall survey, and also Chouke’s field notes, include the land in the bayou where Chouke has the oyster bed involved in this suit. Also the land owned by Chouke lies on both sides of said bayou and the oyster bed is located between the two banks. In other words, if the patent is valid to the extent of including therein the part of the bayou covered by its lines, Chouke is the owner of the land where Ms oyster Led is situated. 'At the time this suit was instituted, and for many years prior thereto, Chouke had growing at the bottom of the bayou at the place above mentioned a valuable oyster bed. This bed was worth about $20,000, and produced an annual income of from two to three thousand dollars.

Joe Filipos et al. owned land abutting on the same bayou, and owned an oyster bed at the bottom of such bayou opposite their land. The oyster bed of Chouke is located between that of Filipos et al. and the open bay. Fil-ipos et al. had, for some time before this controversy arose, been transporting seed oysters from the open bay to their oyster bed by boat, and in doing so they must and did cross the oyster bed of Chouke. It is shown that at first Filipos et al. navigated the waters over ■Chouke’s bed with a boat or oyster barge of shallow draft, propelled by poles, and that this method of navigation did little, if any, damage to Chouke’s bed. It seems to have required about forty minutes to navigate the barge with poles from the mouth of the bayou to the bed of Filipos et al.

About 1928 Filipos et al. constructed a large barge. This barge is 11 by 26 feet and draws about a foot of water when loaded. It is self-propelled, being equipped' with a gasoline engine and a wheel or propeller measuring 12 or 14 inches. This propeller works in what -is called a tunnel so that its lower part is about on a line with the bottom of the barge. This barge thus propelled is capable of making about three and a half or four miles an hour up the bayou when loaded. There are times, due to low tide, that such barge cannot navigate the bayou, while at other times the depth of the water is such that it can be navigated up the bayou without damaging Chouke’s oyster bed. Usually the depth of the water over Chouke’s oyster bed is such that this self-propelled barge drags the bottom and the wheel thereof stirs up mud and sediment at the bottom of the bayou. When this barge drags the bottom over Chouke’s oyster bed, stirring up the mud and the sediment as above stated, the effect thereof is, to greatly damage Chouke’s bed, -and to kill many of his growing oysters. This damage will always result when the bayou is navigated by a boat of sufficient draft to drag the bottom, or whose wheel is of sufficient size and depth to stir up the mud and sediment. There is no way that the bayou over Chouke's oyster bed can be safely navigated with this power barge without greatly damaging the same. However, the same can be navigated by using a barge or boat of sufficiently shallow draft not to drag the bottom, and which is propelled by shoving the same with poles.

In this state of affairs Chouke fenced the bayou where his oyster bed is located in order to prevent Filipos et al. from injuring and killing his oysters with the motor barge above described. Filipos et al. then filed suit in the district court of Galveston county, Tex., to restrain ChQuke from maintaining this fence. Chouke answered and admitted the construction of the fence and pleaded that it was necessary to protect his oyster bed from irreparable injury and destruction by reason of the operation of the motor barge by Filipos et al. in the way and manner above set out. Chouke further pleaded that he had no desire to interfere with Filipos et al. or any one else in the navigation of the waters of the bayou over his bed, provided such navigation was done in such a manner as not to destroy or damage his oyster bed. Chouke pleaded title to the land under the bayou where his own oyster bed was located, and also pleaded his rights under article 4028, R. C. S. of Texas 1925. It appears from the record that Chouke removed the fence before the case was tried in the district court.

Chouke also filed a cross-bill in which he set up the facts hereinabove set out and prayed for an injunction against Filipos et al. and each of them and their agents, servants, employees, and representatives restraining them from navigating the waters over his oyster bed in such a manner as to damage or destroy the same.

Trial in the district court before the court without a jury resulted in a judgment for Filipos et al. In his conclusions of law the trial judge held that the bayou in question was a na-vigable stream, and that the right of Filipos et al. and the general public to navigate said stream is superior and paramount ■to Chouke’s property right in the oyster bed growing at the bottom thereof, and that Chouke therefore had no right to prevent Filipos et al. from navigating the bayou over his oyster bed with the power boat or barge, even though such navigation injured or destroyed his property.

On appeal the Court of Civil Appeals at Galveston [10 S.W.(2d) 807] reversed and rendered this judgment, holding that Chouke was tie owner of the land at the bottom of the bayou and had the right to prevent navigation thereon by Filipos et al. The Court of Civil Appeals further held if Chouke was not the owner of said land that he 'had the right to grow oysters at the point where said bed is located under the provisions of article 4028, R. C. S. of Texas 1925, and should be protected in such rights as against Filipos et al. In other words, the Court of Civil Appeals held that under the provisions of article 4028, supra, Chouke has the right to grow oysters at the point where his oyster bed is located, and that such right is paramount to the right of Filipos to navigate the bayou so as to damage or destroy such oyster bed. The Court of Civil Appeals bases this holding on the further holding that the land at the bottom of the bayou, if not tbe property of Ohouke, is tbe property of tbe state, and that tbe state has tbe power to grant tbe rights conferred by article- 4028, supra, in tbe absence of any federal act to tbe contrary.

We are of tbe opinion that tbe bolding of tbe Court of Civil Appeals with reference to Ohouke’s right under .article 4028, supra, is correct, and this being true, it is unnecessary for us to decide whether he bolds title to tbe "land where bis oyster bed is located.

Article 4028, supra, reads as follows: “Whenever any creek, bayou, lake or cove shall be included within tbe metes and bounds of any original grant or location of land in this State, tbe lavrful occupant of such grant or location shall have tbe exclusive right to use said creek, lake, bayou or cove for gathering, planting or sowing oysters. Tbe Commissioner may require tbe owner of oysters claimed to be produced on such lands, when such oysters are offered for sale, to make an affidavit that such oysters were produced on such lands. If said creek, bayou, lake or cove is not so included, then the exclusive right of the riparian owner shall, wherever tbe width of such creek, bayou, lake or cove is two hundred yards or less, extend to tbe middle thereof, and wherever tbe width of such waters is -more than two hundred yards, extend one hundred yards from shore. The right of the riparian owner for planting oysters along any bay shore in this State shall extend one hundred yards into the bay from high water mark or where the land survey ceases. The riparian owner’s right to any natural oyster bed located on such one hundred yard reservation shall not be exclusive.”

Under the terms of the above-quoted article, it is expressly provided that whenever any bayou is included within the metes and bounds of an original grant or location of land in this state, the lawful occupant of such grant or location is given the exclusive right to gather, plant, and sow oysters. It is also expressly provided that if such bayou, etc., is not included within such metes and bounds, the exclusive right of the riparian owner, shall, whenever the width of such creek, bayou, lake, or cove is 200 yards or less, extend to the middle thereof, and whenever the width of such waters is more than 200 yards, extend 100 yards, from shore. We think this statute is in all respects valid and under the facts of this record operates to.protect Ohouke in his property rights in the oyster bed in question. We are further of the opinion that so long as this statute remains ■in force Ohouke will be protected thereunder regardless of whether he has title to the submerged land where his oyster bed is located, or not. In other words, since Chouke’s field -notes, and the field notes of the grant under : which he holds cover the point where the ' oyster bed is located, and since he is the abutting property owner on either side, he is protected in his right to grow oysters at the point in question regardless of the question as to whether the original grant and validating act above referred to operate to vest title in him to the submerged land in question. North American Dredging Co. v. Jennings (Tex. Civ. App.) 184 S. W. 287; Pound v. Turck, 95 U. S. 459, 24 L. Ed. 525; McCready v. Virginia, 94 U. S. 391, 395, 24 L. Ed. 248; Jones v. Oemler, 110 Ga. 202, 35 S. E. 375; Cain v. Simonson (Ala. Sup.) 39 So. 571, 3 L. R. A. (N. S.) 205; Huffmire v. City of Brooklyn, 162 N. Y. 584, 57 N. E. 176, 48 L. R. A. 421; Barney v. Keokuk, 94 U. S. 324, 24 L. Ed. 224.

In North American Dredging Co. v. Jennings, supra, the Court of Civil Appeals at Galveston sustained the statute under consideration here and held that the statute operated to give the exclusive right for, gathering, planting,, or sowing oysters, although the original grant confirmed by the Legislature of Texas did not give such exclusive right.

In Pound v. Turck, supra, the Supreme Court of the United States, speaking through Justice Miller, held that a state may, in the absence of legislation on tho subject by the Congress of the United States, authorize the erection of a dam across a navigable stream within the state and that unless action has beeh taken by Congress, such act of the state is not repugnant to the power of the federal government to regulate commerce. In this opinion it is further hold that a person who ■erects a dam under such circumstances is not liable for damages or injuries caused thereby.

In Jones v. Oemler, supra, the Supreme Court of Georgia held that the state, as the owner of the beds of all tidewaters within its jurisdiction, had power to sell or lease such beds or any portion thereof to any of its citizens upon any terms or conditions which its Legislature saw fit’ to prescribe.

In Cain v. Simonson, the Supreme Court of Alabama upheld the right of an owner of an oyster bed to restrain the proprietor of another bed from running his boats over the first party’s bed in such a manner as to injure •the same.

In Huffmire v. City of Brooklyn, supra, the Court of Appeals of New York held that the owner of an oyster bed was entitled to recover damages where a city so constructed its sewage that the discharge therefrom injured or destroyed such oyster bed. .

The case of McCready v. Virginia, supra, by Justice Waite of the Supreme Court of the United States, so clearly announces the law as applied to this case that we deem it expedient to quote the following from the opinion in the MeCready Case:

“Following, then, this salutary rule, and looking only to the particular right which is here asserted, we think we may safely liold that the citizens of one State are not invested by this clause of the Constitution with any interest in the common property of the citizens of another State. If Virginia had by law provided for the sale of its once vast public domain, and a division of the proceeds among its own people, no one, we venture to say, would contend that the citizens of other States had a constitutional right to the enjoyment of this privilege of Virginia citizenship. Neither if, instead of selling, the State had appropriated the same property to be used as a common by its people for the purposes of agriculture, could the citizens of other States avail themselves of such a privilege. And the reason is obvious; the right thus granted is not a privilege or immunity of general but of special citizenship. It does not ‘belong of right to the citizens of all free governments,’ but qnly to the citizens of Virginia, on account of the peculiar circumstances in which they are placed. They, and they alone, owned, the property to be sold or used, and they alone had the power to dispose of it as they saw fit. They owned it, not by virtue of citizenship merely, but of citizenship and domicile united; that is to say, by virtue of a citizenship confined to that particular locality.
“The planting of oysters in the soil covered by water owned in common by the people of the State is not different in principle from that of planting corn upon dry land held in the same way. Both are for the purposes of cultivation and profit; and if the State, in the regulation of its public domain, can grant to its own citizens the exclusive use of dry lands, we see no reason why it may not do the same thing in respect to such as are covered by water. And as all concede that a State may grant to one of its citizens the exclusive use of a part of the common property, the conclusion would seem to follow, that it might by appropriate legislation confine the use of the whole to its own people alone.
“Neither do we think this case is at all affected by the clause of the Constitution which confers power on Congress to regulate commerce. Art. 1, § 8. There is here no question of transportation or exchange of commodities, but only of cultivation and production. Commerce has nothing to do with land while producing, but only with the product after it has become the subject of trade. Virginia, owning land under water adapted to the propagation and improvement of oysters, has seen fit to grant the exclusive use of it for that purpose to the citizens of the State. In this way the people of Virginia may be enabled to produce what the people of the other States cannot; but that is because they own property which the others do not. Their productions do not spring from commerce, but commerce to some extent from them.”

In Barney v. Keokuk, supra, it is held:

“It is for the several states themselves to determine this question, and that if they choose to resign to the riparian proprietors rights which properly belong to them in their sovereign capacity,' it is not for others to raise objections.”

We conclude from the above authorities that the Court of Civil Appeals was correct in reversing the judgment of the trial court and rendering same in favor of Chouke on the ground that he was protected in his oyster bed in question here under the provisions of article 4028.

This being true, we think it is absolutely unnecessary to express an opinion as to the validity of Chouke’s title to the land where the oyster bed is located. We therefore refrain from expressing any opinion whatever on that question.

It follows from what we have said that the judgment of the Court of Civil Appeals should be affirmed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


source: Caselaw Access Project

author: CRITZ, C. CURETON, C. J.

license: Public Domain

text:
    STATE ex rel. GEORGE et al. v. BAKER et al.
    No. 5720.
    Supreme Court of Texas.
    April 15, 1931.

      L. J. Polk, of Pharr, and George P. Brown and Oliver C. Aldrich, both of Edinburg, for plaintiffs in error.
    Davenport, West & Ransome, of Brownsville, and Strickland & Ewers, of Mission, for defendants in error.
   CRITZ, C.

This is an action of quo warranto by the state of Texas, acting through the district attorney for the Seventy-Ninth judicial district of Texas, on relation of William George et al., trustees of common school district No. 18 of Hidalgo county, Tex., against Ed Couch independent school district of said county, and E. B. Baker et al., its trustees, to determine the validity of the incorporation of the independent district, and the right of its trustees to exercise their function as such. It appears that a very large part of the territory of the common school district is also embraced within the boundaries of the independent district.

It appears from the record and the opinion of the Court of Civil Appeals that on the 3d day of January, 1928, the county judge of Hidalgo county, Tex., ordered an election to be held in common school district No. 16 of such county to determine whether such common school district - should be incorporated as independent school district and designated as. Ed Couch independent school district in conformity with article 2757, R. C. S. of Texas, 1925, as amended by chapter 238, p. 353, Acts Regular Session 40th Legislature, 1927 (Vernon’s Ann. Civ. St. art. 2757). It seems to be conceded that the statute above named was fully complied with in ordering such election.

It seems further that, after said election had been ordered and due notice thereof given in conformity with law, and two days before said election was to have been held, the county board of trustees' of Hidalgo county ordered a redistricting of common school district No. 16, by which certain portions of the latter were cut off into adjacent common school districts Nos. 2 and 18.

The election was held on the date ordered and resulted in favor of incorporation. The county judge refused to canvass the returns and declare the result until he had been man-' damused so to db. Cameron, County Judge, v. Baker (Tex. Civ. App.) 13 S.W.(2d) 119. After canvassing the returns the county judge entered an order declaring the district incorporated as an independent school district. Also at the same election E.- B. Baker et al. were elected trustees of the independent district. This result was also declared by the county judge at the same time he declared the district incorporated.

After the declaration of the result of such election this suit was filed to test the validity of the independent district, and the right of its duly elected trustees to function as such. Trial in the district court resulted in a judgment declaring the independent district invalid. This judgment was reversed and rendered by the Court of Civil Appeals. 26 S.W. (2d) 324.

To our minds this suit presents but one question: Did the county board of trus-. tees have the power to d'efeat the right of the people to, by vote, determine the question as to whether the district should be incorporated by redistricting the territory involved after the election had been duly and legally ordered and advertised, and while such election was still pending? We think that to state the question is to give a negative answer thereto.

By the express provisions of article 2757, R. C. S. of Texas 1925, as amended by chapter 238, p. 353, Acts Regular Session 40th Legislature (Vernon’s Ann. Civ. St. art. 2757), any common school district containing 700 scho-lastics or more is given the right to incorporate as an independent school district by a vote of the qualified voters thereof at an election duly ordered by the county judge in the way and manner in such statute provided. Also by the. express provisions of article 275S of the same act the voters of the district are given the right to choose trustees at the same election. This right is by the very terms of the statute unqualified and absolute.

It seems to be contended by the defendants in error that, since the county board of trustees had jurisdiction to change, abolish, and subdivide common school districts, and since the territory comprising common school district No. 16 was still a common school district at the time the county board made its order, the making of such order rendered the holding of the election void and of no force. We cannot agree to this contention.

It is our opinion that, even if it be conceded that the orders of the county board with reference to the territory of district No. 16 would have been in all respects legal in the absence of the pending election, still the right of the people to vote on incorporation, having been first lawfully invoked, would not be interfered with or defeated by the county board pending the holding of the election, and the declaration of its result. This is certainly the correct rule, even if it be conceded that the power of the county board and the right of the people were co-ordinate or equal.

It is the rule of this state and practically the universal rule that, where co-ordinate jurisdiction over a particular subject-matter is vested in two distinct tribunals, the tribunal first acquiring jurisdiction has the right to retain jurisdiction until it has completely disposed of all matters and issues so presented to it, and no co-ordinate tribunal has any right to interfere with the tribunal first acquiring jurisdiction. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063; 15 C. J., p. 1134, Par. 583 ; Id. p. 1161, Par. 367. These authorities involve the power of courts, but we think the same principle applies here.

We do not express an opinion on the power of the county board of trustees with reference to independent school districts after they are incorporated. That matter is not before 'us. What we hold is that the county board of trustees had no jurisdiction in the premises pending the holding of the election here involved and the declaration of its result.

The judgment of the Court of Civil Appeals should be affirmed.

CURETON, C. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: CRITZ, C. CURETON, O. J.

text:
    CITY OF BRECKENRIDGE v. STEPHENS COUNTY.
    No. 5723.
    Supreme Court of Texas.
    May 16, 1931.
    Chas. H. Clark, Jones & Brown, Lyndsay D. Hawkins, and Floyd Jones, all of Breckenridge, for plaintiff in error.
    Ben J. Dean, T. B. Ridgell, and W. J. Ar-rington, all of Breckenridge, Nelson Phillips, of Dallas, and Black & Graves, of Austin, for defendant in error. .
   CRITZ, C.

The opinion of the Court of Civil Appeals which is reported in 26 S.W:(2d) 405 makes a very comprehensive statement of the facts and issues of this case, and in the interest of brevity we refer to ⅛ and adopt the statement of that court.

Briefly stated, this suit was filed in the dis-' •trict court of Stephens county, Tex.,, by the city of Breckenridge, a municipal corporation, against Stephens county, in which such city is located, to recover on a contract executed by the city on the one hand and the county on the other. 'By the terms of this contract the county agreed to pay a part of the cost of improving one of the streets of the city. The street in question was a connecting link and integral part of a county road and state highway. It is also shown that the county had on hand sufficient funds derived from the sale of county road bonds to discharge the contract at the time it -was made.

The opinion of the Court of Civil Appeals discusses various questions presented by the parties to this appeal, But in our opinion there is but one controlling issue involved in this litigation, a decision of which disposes of this case. This question is: Under the Constitution and laws of this state does the commissioners’ court of a county have the authority to expend county road bond funds for the improvement of the streets of incorporated cities and towns located in such county, where such streets are connecting. Jinks, and integral parts of county roads or state highways? If the right to expend such funds exists, the right to make a contract so to do must also exist.

After a careful investigation of the authorities, including the Constitution and laws of this state, we have reached the conclusion that the commissioners’ court does .have lawful authority to expend county road bond funds for the improvement of city streets where such streets form integral parts of county roads or state highways, when such improvéments are made without conflicting with the jurisdiction of the municipality, or with its consent or approval. Section 52, art. 3, Texas Constitution; State v. Jones, 18 Tex. 874; Smith v. Cathey (Tex. Civ. App.) 226 S. W. 158, 160; Cannon v. Healy Construction Co. (Tex. Civ. App.) 242 S. W. 526, 529 (writ refused).

Section 52 of article 3 of our State Constitution authorizes counties and political subdivisions and defined districts thereof to issue bonds for the purpose of: “(c) The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof.”

The constitutional provision above referred to expressly provides that road districts “may or may not include towns, villages or municipal corporations.” Thus by the express terms of the Constitution a municipal corporation may be an integral part of a road district. As a part of the road district, the property of the city or town is subject to road district taxes just the same as property of the district located outside such municipality. If a city or town is a part of a road district, the' commissioners’ court has the right by the very express provisions of the Constitution to expend road diátrict bond funds on such town or city streets where such streets are parts of and form connect-' ing links in county or state highways.

Where the road bonds are voted by an entire county, the incorporated cities and towns located therein are certainly integral parts of the county. It was not necessary to expressly so state in the constitutional provision above mentioned. All taxable property of a county is subject,to taxation-for the payment of county road bonds. The commissioners’ court has the right to expend county road bond funds on county roads and highways in any part of the county. If a street of an incorporated town or city forms a connecting link in the county road or state highway, we think it is a county road within the meaning of the statutes to the extent that county funds may be spent for the improvement thereof. Of course, the town or city governing board primarily has paramount jurisdiction of the streets and highways thereof, and the commissioners’ court would have no authority to improve streets or highways within municipalities in conflict with the jurisdiction of the city to improve the same. However, as in the instant case, where the improvement is made with the consent or approval of the city we find no statutory or constitutional impediment. In fact, we think the authorities above cited fully sustain the right.

In State v. Jones,' supra, -our Supreme Court expressly held that the jurisdiction of the county in highway matters is coextensive with the limits of the county. It is further held in that ease that where the act incorporating a town gives it authority to lay out and improve the public highways within the incorporation the effect of such act is to take from the county its jurisdiction over roads and highways within the incorporation. The opinion then proceeds to demonstrate that the mere fact that the law takes away from the county jurisdiction over highways within the corporate limits of the city or town and confers such jurisdiction on the municipality does not deprive the county ■ of the right to improve a road within the incorporation where it is done without conflicting with the jurisdiction of the city. We quote the following language from this opinion: “It has been said in argument, that if the law incorporating the town takes away from the County Court the power to lay out and regulate roads within the town limits, and the Council do not choose to exercise the power conferred upon it, to lay out streets and highways, then the people of the county will be subjected to the inconvenience of having no road for travel or the transportation of their commerce through the town tract, and will be deprived of the means of visiting the 'seat of justice and other places of public business established within the town. Such a consequence, in my judgment, by no means follows. Until the Town Council acts under the authority conferred by its charter, the general authority of the County Court over the subject matter continues to exist, and may be exercised. It is only when both bodies attempt to act in opposition to, and in conflict with each other, that the power and authority of one must cease and yield to that •of the other, and in such a state of things, I am of the opinion that thé authority of the County Court must yield to that of the town Council.”

In Smith v. Cathey, supra, it is shown that the commissioners’ court of Wood county, Tex., was preparing to expend a part of the proceeds of a county road bond issue to construct a highway within the corporate limits of the city of Winnsboro, a municipality within the county, with a population of two or three thousand. The portion of the road within the city was a part of a county highway. Suit was instituted by a taxpayer to prevent this expenditure on the ground that the county had no jurisdiction over highways within the city limits, and therefore no right to expend county bond funds to improve city streets. The Court of Civil Appeals at Dallas, speaking through Judge Rainey, overruled this contention and held as follows: “By subdivision 6 is given power to exercise control and superintendence over all roads and highways in the counties. This is subject to the powers usually granted to cities and towns over streets, etc.¡ within its limits, when it chooses to take juristic-, tion and the city or town sees proper to exercise such powers. But where the city or town does not deem it proper to exercise such jurisdiction, and does not object to the county keeping up such road or 'Street, the county has the right to do so.”

In Cannon v. Healy Construction Co., supra, ⅛ is shown that the city of Sulphur - Springs and Hopkins county, in which the city is located, entered into a contract for the improvement of a city street, and under the provisions of this contract the county was to bear part of the cost of such improvement out of the funds derived from the sale of road district bonds. The city was located in, and a part of, the road district. The Court of Civil Appeals at Texarkana, speaking through Judge Levy, upheld the right of the county to expend such funds on the street in question. We quote the following from Judge Levy’s opinion: “It is evident from the language of the contract that the city commission did in fact undertake to make ‘an appropriation’ or provision for the payment of the cost apportioned to the city for paving its street. When the conditions of the contract are fulfilled payment to the contractors of compensation is expressly provided therein. The contractors are to be paid in warrants issued by the county commissioners on the special fund, then available, of the county road improvement district No. 1. The special funds of the county road improvement district No. 1 are not, it is true, primarily the tax funds ‘of a city.’ Simmons v. Lightfoot, 105 Tex. 212, 146 S. W. 871; Moore v. Bell County (Tex. Civ. App.) 175 S. W. 849. But it does not follow, as a legal consequence, that no portion of such fund can be used by the county commissioners, or by the county commissioners and the city acting jointly, exclusively within the corporate limits of the city upon the streets determined to be improved. City of Corsicana v. Mills (Tex. Civ. App.) 235 S. W. 220. The special funds of county road improvement district No. 1 are by statute required to be used in payment of the cost ‘of constructing and maintaining * * macadamized, graveled, or paved roads’ within such road improvement district. Article 627, R. S. • The statutory system of improvement of highways expressly provides that ‘a defined road district of a county’ may include ‘towns, villages or municipal corporations of the county.’ Article 631, R. S. ' The streets of the city, then, become an integral part of the road district, entitled to be improved, the cost to be payable with warrants issued against such special funds of the road district. The statute does not expressly or impliedly deny authority to the county commissioners to make apportionment of a proper and reasonable portion of the special fund to be used within the corporate limits of the city upon streets, as a part of the highway, determined to be improved. Thé statute does grant to towns and cities the special power to control, improve, and order the im.-provement of any street within the corporate limits. Articles 1006-1010, R. S.; Special Charter City of Sulphur Springs, Special Acts 1911, p. 414. In thus exercising the power given over the improvement of its streets the city would not be doing an act violative of the law and its charter. And if the commissioners’ court voluntarily made apportionment of a proper and reasonable portion of such special fund to be used in improvement of the city streets, as an integral part of the district highway,- the county commissioners would not thereby be doing an act prohibited to them.”

In our opinion Judge Levy has correctly ’stated the law as applied to the power of counties to expend road bond funds on the streets of incorporated cities and towns, and we here expressly adopt and approve his holding.

From what we have said it is evident that we hold that under the Constitution and laws of this state the county in the instant case had the right to make the improvement in question here. Of course, if the county had the right to make the improvement, it had the right to make the contract so to do.

We have carefully examined the contract in question, and we find no portion of it in violation of any law of this state.

It follows from what we have said that the judgments of the Court of Civil Appeals and district court should both be reversed, and judgment here rendered in favor of the city of Breckenridge for the amount sued for.

CURETON, O. J.

The foregoing opinion is adopted as the opinion of the Supreme Court, and judgment will be entered in accordance therewith.


author: GREENWOOD, J.

text:
    CUNNINGHAM v. CUNNINGHAM et al.
    No. 5006.
    Supreme Court of Texas.
    June 10, 1931.
    Benson & Benson, of Bowie, for plaintiff in error.
    Donald'& Donald, of Bowie, and Spencer & Jameson, of Montague, for defendants in error.
   GREENWOOD, J.

The Court of Civil Appeals, in an admirable opinion by Mr. Justice Dunklin (299 S. W. 4S3), states the nature and result of this suit as follows:

“Rozelle Cunningham, a girl nine years of age, Cathleen Cunningham, a girl seven years of age, and Weldon Ctínningham, a boy, four years of age, are the children of Mrs. Toria Cunningham and John Cunningham, her divorced husband. The mother instituted this suit for the benefit of those children against John Cunningham to recover a judgment in the sum of $10,500, payable in monthly installments of $20 for each of the children during their minority.
“The basis of plaintiff’s demand consisted in allegations that the children are in dire-need of food and clothing, and that the mother is unable to supply them therewith, and that the defendant has failed and refused ■to furnish any means of support for said children. The petition contains these further allegations: * ⅜ *
“ ‘That they are without means of obtaining food, clothing, and other commodities necessary for their support and maintenance at this time, in that they are unable to secure an extension of credit to cover such necessary purchases, and they are unable to obtain a place where such can be purchased upon the faith or credit of their father, John Cunningham, or their mother, Mrs. Torda Cunningham; that their said mother, Toria Cunningham, is likewise unable to provide credit for them so that such necessary food, clothing and other commodities necessary to their support and maintenance, can be procured, and therefore these plaintiffs are entitled to have this court determine the amount necessary therefor, amd render judgment accordingly.
“ ‘That the defendant, John Cunningham, is possessed of good physical and mental faculties, and at the present has an earning capacity of approximately $2,⅛00 annually, and has a good position that is permanent, which these plaintiffs say produces unto him that sum. That, in addition to his present earning power 'and capacity, the said defendant has both personal and real property which could be converted into funds with which such food, clothing, and other commodities necessary to their support and maintenance can be provided, all of which is needed in maintaining and giving said children reasonable educational advantages which should be offered unto them as they reach a scholastic age.
“ ‘That, in order to provide sufficient food, clothing, and other commodities necessary to their support, maintenance, and education, based upon an amount in keeping with reason and their station in life, it will require the sum of $60 per month during the period of their minority, that is, $20 for each of them per month during their minority,, which said sum these plaintiffs would say is in all things reasonable and within the power of the defendant to provide. That, based upon this sum, as aforesaid, these plaintiffs are entitled to judgment in the sum of $10,-500, payable in monthly installments of $60 each and every month.’
“The trial court sustained a general demurrer to the petition, and, the plaintiffs haying declined to amend, the cause was dismissed. From that judgment plaintiffs have prosecuted this appeal.”

The Court of Civil Appeals reached the conclusion that “under their prayer for general relief and the facts alleged, which the demurrer admits to be tr.ue,” the minor plain- . tiffs are entitled — ■

“To the following relief, which the trial court, sitting as a court of equity, has jurisdiction and authority to award:
“First. A decree fixing in advance for a stated period of time such an amount for the support and maintenance of the minor plaintiffs as the court in his discretion, after notice to the defendant, and upon evidence heard, may determine to be fair and equitable alike to the children and their father, considering the necessities of all and the ability of the father to furnish such.
“Second. A further decree ordering and requiring defendant to pay to plaintiffs’ mother for the maintenance and support of such minors the amount so fixed by the court, and, in the event of defendant’s refusal to obey that order, without just cause, the judge of the trial court will be authorized and empowered, after due notice to him upon evidence heard, to adjudge him in contempt and ' punish him by either fine or imprisonment or by both.
“Third. A further decree within the dis.cretion of the trial judge, fixing the amount of such allowance as a lien to be thereafter enforced by said court or under its direction, if necessary, on any property, real or personal, that defendant may own at the time of any hearing, and appointing a trustee, •with all the powers of a receiver, to take charge of all such property and collect the rents and revenues arising therefrom, and return the same into the registry of the court, to be applied to the support and maintenance of the minor children, upon orders of the trial court to be thereafter made.”

The judgment of the district court was therefore reversed, and the cause was remanded to the district court.

Having granted a writ of error, the Supreme Court is required to determine the question of grave importance as to what relief, if any, the trial court could rightly award these minors, on the facts alleged.

The first legislation in Texas dealing with the jurisdiction of the district court over actions for maintenance of wife or child is “An act amending the Judiciary Laws of the Republic,” approved by- President Sam Houston on December 18, 1837. By section 2 of the act it was provided:

“That in addition to the powers given to the district courts by the act establishing the powers and jurisdiction thereof, approved December twenty second, One thousand eight hundred and thirty six, the said district courts shall have power to hear and determine all suits or actions arising between husband and wife for divorce or for a separate maintenance, and may decree divorces as well from the bonds of matrimony as from bed and board, or for a separate maintenance.”- — 1 Gammel’s Law, 1437.

It thus appears that it was originally the public policy of the Republic to confer authority on the district court to compel either spouse to provide the other with proper maintenance.

After a brief time, the Congress enacted a change in the public policy of the Republic, disclosed' by sections 8, 6, 13, and 4 of the Act of January 6, 1841, which have been continuously re-enacted in substance, and are now embodied in articles 4637, 4636, 4639, and 4638, Complete Texas Statutes (Vernon’s Ann. Civ. St. arts. 4637, 4636, 4039 and 4638).

Section 8 provided: “That if the wife, whether complainant or defendant, has not a sufficient income for her maintenance during the pendency of the suit for a divorce, the judge shall allow her a sum' for her support proportional to the means of the husband, until a final decree shall be made in the case.” 2 Gammel 4S5.

Section 6 provided: “That pending any suit for a divorce, the court may make such temporary orders respecting the property and parties as they shall deem necessary and equitable.” 2 Gammel 484.

Section 13 provided: “That the several district courts aforesaid shall have power in all cases of separation, between man and wife, to give the custody and education of the children to either father or mother, as to them shall seem right and proper, having regard to the prudence and ability of the parents, and the age and sex of the child or children to be determined and decided on the petition of either party, and in the meantime to issue any injunction or make any order that the safety and well being of any such children may require.” 2 Gammel 486.

Section 4 provided: “The court pronouncing a decree of divorce from- the bonds of matrimony shall also-decree and order a division of the estate of the parties in such way as to them shall seem just and right, having due regard to the rights of each party and their children, if any: provided however that nothing herein contained shall be construed to compel either party to divest him or hen self of the title to real estate or'to slaves.” 2 Gammel 484.

The terms of sections 6 and 8 explicitly restrict the court’s power in making provision for maintenance and support to its exercise only during pendency of the action for divorce and prior to the entry of final judgment. Again in section 13, after giving the court wide discretion in determining the custody of children in a final decree, by the use of the words, ‘fin the meantime,” the Congress again restricted to temporary, interlocutory orders the exercise of the court’s power to make provision for “the safety and well being of any such children.” When it came to deal with the final decree, the 1841 act was specific in stating the court might decree the marriage null and void, or decree a separation of the bonds of matrimony, and make award of the custody and education of the children, and finally provide for the husband and wife and children by means of “division of the estate of the parties in such way as to them shall seem just and right, having due regard to the rights of each party and their children.” Sections 1, 2, 3, 13, 4, Act of January 6, 1841, 2 Gammel. 484 to 486.

Whatever doubt might have arisen as to the correct construction of the provisions of the act of 1841 has been removed by their consistent interpretation by the appellate courts for ninety years.

In Fitts v. Fitts, 14 Tex. 450 to 454, the court, by Chief Justice Hemphill, carefully reviewed these statutes, concluding they were copied from states where the public policy was to provide maintenance from the estates and properties of the spouses, and stating: “As the parties in ma-rriage, in this State, very often have each separate property, and as very generally there is some community property, the most obvious construction of the Statute is, that the separate property should be restored to its owner respectively, and that such division of the community property be made, as may seem just and right; it being understood that a due regard must be had to the rights of the parties, that suitable provision must be made for the education and maintenance of the children, if any, and that although the community property is the primary fund from which such provision should be made as would render the division just under all the circumstances, yet there may be cases in which the separate property will be subjected to such charges,- and especially in favor of a wife, as may be equitable and right: provided that the -title to lands and slaves be not divested.”

Again, in construing the statutes, the court said: “The division of the estate is to be made by the Court, in such way as may seem, just and right, not only to the parties but to ffhe children. * * * The reasons why those who have brought children into the world, should support and protect them in their helplessness and infancy, will suggest themselves to every mind. They are enforced by instinct, and by laws human and divine. In making the division of the property, Courts must protect the children, as well as the parents, from injustice. The Court below seems to have acted on the supposition that the community property could alone be set apart for the benefit of the minors. But this is a mistaken view of the law. The provision about the division of the estate of the parties is found in Statutes where community property is unknown. (Fitts v. Fitts, 14 Tex. 443.) The separate property may be divided in cases of necessity; or the whole, both separate and community, may be kept together, as in this case, for the benefit of the children; but the decree must not divest either party of their title in the lands or slaves. It will be no breach of the Statute to decree the use of property, for some period, to the use of the children, reserving the fee of the property in the husband, to be enjoyed by him after the expiration of the trust estate for the children.” Rice v. Rice, 21 Tex. 68, 69.

In Hedtke v. Hedtke, 112 Tex. 410, 248 S. W. 21, the Court pointed out that our present statutes were essentially the same as the act of 1841, and that under these statutes the district court possessed a wide discretion in providing maintenance for the wife and minor children out of the property of the parties, separate or community,' including the homestead. Accordingly, a decree of the district court was affirmed which awarded homestead property, belonging to the husband’s separate estate to a wife and minor children for the natural life of the wife.

Gulley v. Gulley, 111 Tex. 233, 231 S. W. 97, 15 A. L. R. 564, adjudged that the father was liable for necessaries furnished by his divorced wife to their minor children. The opinion declares: First, that both parents owe a natural and legal duty to support their children during minority; second, that the duty rests primarily on the father; third, that such duty continues after a decree of divorce awarding the custody of the children to their mother; and, fourth, that the right of minor children to maintenance could be enforced by appropriating for their benefit the use of all property of the parents, or of either of them. That case involved quite a different question from that here presented. It merely recognized a father’s liability, for necessaries furnished his minor child by a divorced wife or a stranger, where he neglected to furnish same. Such liability is generally enforced in England, in the States of the United States, and always in Texas. Fowlkes v. Baker, 29 Tex. 137, 94 Am. Dec. 270; Walling v. Hannig, 73 Tex. 580, 11 S.W. 547; Hartman v. Chumley (Tex. Civ. App.) 266 S. ,W. 444, 446; Laumeier v. Laumeier, 237 N. Y. 357, 143 N. E. 219, 32 Á. L. R. 658.

The wife was held without remedy by the Supreme Court, where no suit for divorce was pending, to compel her husband to provide her with certain monthly sums for her support. The holding was made in 1885 in a case wherein the wife invoked the original jurisdiction of the district court. De Trevino v. Trevino, 63 Tex. 651.

The district court of Falls county in 1896 entered a judgment granting a divorce and decreeing that the husband pay his former wife semiannually, for the benefit of their son 12 months old, the sum of $5 per month. The judge of the district court of Falls county subsequently adjudged the husband in contempt, by an order entered in vacation, for failing to make the payments required by said judgment. In discharging him, the Court of Criminal Appeals, through Judge Henderson, said: “It is not necessary in this case to hold that the district court of Falls county had no power, under any circumstances, to make the order it did, allowing alimony or a support for the maintenance of the child of the applicant; but, as stated above, we are inclined to that view.” Ex parte Ellis, 37 Tex. Cr. R. 539, 40 S. W. 275, 276, 66 Am. St. Rep. 831.

A few years later one Martin E. Gerrish was adjudged in contempt of the district court of Dallas county for failure to obey a judgment of that court, which divorced him from his wife and directed him, in accordance with an agreement filed, to pay his wife $20 per month for the maintenance and support of a minor daughter until she arrived at the age of 21 years or married. The Court of Criminal Appeals, in ordering him released from custody, on habeas corpus, held that “there is no authority in- the court to grant permanent alimony covering a long series of years, nor is there any power in the court to imprison the applicant for debt.” Ex parte Gerrish, 42 Tex. Cr. R. 114, 57 S. W. 1123, 1124.

The Court of Criminal Appeals remanded a husband to custody who had refused to turn over community personal property to a trustee, from which $300 was to be paid the wife for the support of minor children under a final judgment of the district court. This action was based on the conclusion that the divorce statutes gave the district court jurisdiction to enter its judgment in dividing the property of the spouses, and that, “if the court had the power to do this, it must be conceded that it was authorized to enforce its decree by a contempt proceeding.” Ex parte Latham, 47 Tex. Cr. R. 208, 82 S. W. 1046, 1048.

In Ex parte Davis, 101 Tex. 608-612, 111 S. W. 394, 395, 17 L. R. A. (N. S.) 1140, relator had been adjudged in contempt of the district court of Dallas county for his refusal to obey a judgment of that court, directing him to pay his wife $100 attorney’s fees and to pay into the court $80 per month for delivery to his wife for the support of herself and her minor children during the pendency of the suit. The facts disclosed that the relator, after the date of the order, had earned $1,272. and offered no excuse for his failure to perform the court’s order, other than that such order was a debt and he could not.be imprisoned for failure to discharge same. In holding the order of the district court of Dallas county to be valid, and in remanding relator fo custody until he complied therewith, the Supreme Court, in an opinion by Mr. Justice Brown, said: “Mrs. Davis being without the means of support for herself and her children and Davis having ability to support them, it was both his natural and legal duty to do so, notwithstanding the pen-dency of the suit-for divorce. The wife had a claim upon Davis for the performance of his duties toward her and her children, and the court, having jurisdiction of all the parties, had the power to compel the husband to discharge his obligation to his wife and children. Davis having refused to obey the order of the court, and it appearing that he was able to comply with the order and that he had no excuse for the refusal to do so, the district court had authority to order him into confinement until he should comply with its mandate. 1 Ency. Pl. & Pr. 439; 14 Cyc. 760; Carlton v. Carlton, 44 Ga. 220; Lewis v. Lewis, 80 Ga. 706, 6 S. E. 918, 12 Am. St. Rep. 281; Chase v. Ingalls, 97 Mass. 527; Lyon v. Lyon, 21 Conn. 196; Andrew v. Andrew, 62 Vt. 498, 20 A. 817; Haines v. Haines, 35 Mich. 144; Pain v. Pain, 80 N. C. 322.”

In refuting the contention of relator that the order for temporary alimony was a debt, Judge Brown declared: “The order could not be enforced, except in that proceeding for divorce. * ⅜ * ¾ claim of Mrs. Davis for support of herself and children was not a debt. She could not have maintained an action against her husband to enforce that duty, except in the manner in which it was done in the proceedings for divorce. The Constitution of this state does not prohibit the imprisonment of a man except for the collection of a debt, and the proceeding in this case, being for the enforcement of a duty, natural and legal, due from Davis to his wife and children, all of whom were subject to the jurisdiction of the court, does not come within the prohibition of the Constitution.

“Neither was the order of the court directing the payment of the sum by Davis 'into court for the benefit of his wife and children a debt. The order was in fact not a final judgment. It was limited to the time when the final judgment should be entered in the suit, and under our statute could not go beyond that.”

By the above language the court distinctly declared: First, that no action is ¡maintainable in this state to enforce the husband’s continuing duty of support and maintenance of his children, except as authorized by the statutes regulating divorce; and, second, that the power of the court is so limited by the statutes that the court can direct no payments by the husband of alimony for maintenance or support of his children beyond the date of entry of the final judgment.

In construing the statutes as relegating the children to the property of parents in seeking permanent provision for maintenance, support, and education, the decisions of the Courts of Civil Appeals have been quite uniformly in line with those of the Supreme Court and of the Court of Criminal Appeals. In .rendering their decisions, the Courts of Civil Appeals have usually been exercising the jurisdiction of courts of last resort under the statute making their judgments conclusive on the law and facts in “all cases of divorce.” Article 1821, R. S.

The San Antonio Court of Civil Appeals, in an opinion of Chief Justice James, said: “It is assigned as error that the court had no power, having refused the divorce, to adjudge that plaintiff pay defendant a certain sum each month, during the minority of the boy, for his maintenance. The parties, after this decree, were still man and wife. The legal obligation and liability of the father for the necessary support and maintenance of his minor child remained, and the nature and extent of the obligation was to furnish or pay for such necessaries as, from his station in life, it was his duty to furnish the child. Walling v. Hannig, 73 Tex. 582, 11 S. W. 547. While we think the court had, in this proceeding, and upon the pleadings, the power to render the judgment affecting the custody of the children, and that judgment was properly rendered, in view of the evidence and the welfare of the children (Neis. Div. & Sep. § 979), we are of opinion that it should not have adjudged and fixed liability against plaintiff for the support of the child, nor have made any adjudication on that subject.” Defee v. Defee (Tex. Civ. App.) 51 S. W. 274.

The same judge, speaking for the same court, in Ligon v. Ligon, 39 Tex. Civ. App. 392, 87 S. W. 838, 839, said: “The only authority, we think, for making provision for the children in the final decree in such a case, is in the general power given in article 2980', which does not go further than to authorize the court, to do 80> out.of the property of the parties.”

The Dallas Court of Civil Appeals declared: “Under the laws of this state, courts are not authorized in divorce suits to provide permanent alimony .for the -support of the divorced wife. An allowance may be made for her support during the pendency of the suit for divorce, until the final decree is made in the case. Rev. St. art. 2986. The final decree may also order a division of the common estate, if there be such. Id. art. 29S0. But the court cannot divest title out of one of the spouses, and invest it in the other. Neither can the court compel the husband by final decree, to support the divorced wife. Pape v. Pape, 13 Tex. Civ. App. 99, 35 S. W. 479.” Boyd v. Boyd, 22 Tex. Civ. App. 200, 54 S. W. 380, 381.

Speaking of an award of permanent alimony in the sum of $5 per month to a child, the Fort Worth Court of Civil Appeals, in an opinion of Judge Speer, said: “There is no such thing in this state as permanent alimony. * * Article 2980 seems more nearly to authorize such a judgment than any other, but an examination of it will show that the rights of the children of the union ought to be conserved,' not by a fixed charge against either the father or mother, but in the division of the estate of the parties.” Bond v. Bond, 41 Tex. Civ. App. 129, 90 S. W. 1128.

The Austin Court of Civil Appeals, in Sneed v. Sneed, 296 S. W. 643, 646, said: “The judgment for future support of the child was also unwarranted. It is well settled in this state that in a divorce case the court has no power to render a personal judgment against either spouse for future support of the child.”

The following cases are in harmony with those already cited: Pape v. Pape, 13 Tex. Civ. App. 99, 35 S. W. 479, 480; Barry v. Barry (Tex. Civ. App.) 131 S. W. 1142, 1143; Bemus v. Bemus (Tex. Civ. App.) 133 S. W. 503, 506; Gully v. Gully (Tex. Civ. App.) 173 S. W. 1178; Phillips v. Phillips (Tex. Civ. App.) 203 S. W. 77, 79; Hughes v. Hughes (Tex. Civ. App.) 259 S. W. 180; Hooten v. Hooten (Tex. Civ. App.) 15 S.W.(2d) 141.

Before the passage.of the act of 1841, the Lord High Chancellor of England, discussing the reason for the refusal of chancery to take jurisdiction of providing for the support of a minor, “unless there was property belonging to the infant to be taken care of in this court,” said: “If anyone will turn his mind attentively to the subject he must see that this court has not the means of acting, except where it has property to ac-t upon. It is not, however, from any want of jurisdiction that it does not act, but from want of means to exercise its jurisdiction; because the court. cannot take on itself the maintenance of all the children in the Kingdom. It can exercise this jurisdiction usefully and practically, only where it has the means of doing so; that is to say, by its having the means of applying property for the use and maintenance of the infants.” Wellesley v. The Duke of Beaufort, 2 Russ. Ch. 22.

Corpus Juris states “the rule is that the power of the court to award permanent alimony is wholly statutory, and usually the statutes make provision therefor,” 19 C. J. § 566, p. 243; and that “ordinarily a minor child has no direct right of action in equity against its parent to compel the performance of the latter’s duty in respect of maintenance and education.” 46 O. J. § 50, pp. 1270, 1271.

Cases supporting the rule ’deduced hy Corpus Juris, besides-the Texas cases, are: Peltier v. Peltier, Har. (Mich.) 19; Sawyer v. Sawyer, Walk. Ch. (Mich.) 53; Perkins v. Perkins, 16 Mich. 167; Maslen v. Anderson, 163 Mich. 481, 128 N. W. 723; Ritzer v. Ritzer, 243 Mich. 411, 220 N. W. 812; Smith v. Smith, 45 Ala. 267; Rawlings v. Rawlings, 121 Miss. 140, 83 So. 146, 7 A. L. R. 1259; Sikes v. Sikes, 158 Ga. 406, 123 S. E. 694; Worthington v. Worthington, 212 Mo. App. 216, 253 S. W. 443.

Since the determination in Michigan that the courts of that state had no inherent jurisdiction to decree alimony and could exercise no powers in awarding alimony save as expressly conferred by statute, the Legislature of Michigan wisely amended the statutes so as to confer upon the courts for the trial of divorce suits full power and authority, not only to provide for the maintenance and education of the children out of property of the parents, without prohibition against divestiture of titles, but also conferred on such courts ample power to make and enforce allowances, pendente lite or by, final decree, for the children’s support and education, the statutes further authorizing the court to decree that the amount allowed “shall constitute a lien upon such of the real and personal estate of the husband as the court by its decree shall direct, and in default of payment of the amount so decreed the court may decree the sale of the property against which such lien is decreed in the same manner and upon like notice as in suits for the foreclosure of mortgage liens; or the court may award execution for the collection of the same” (Comp. Laws Mich. 1929, § 12747); and the statutes further empower the courts to revise their decrees from time to time as the circumstances of the children and parents may require. Sections 12737, 12738, 12739, 12745, 12747, 1274S, Compiled Laws of Michigan 1929. The courts were also empowered, in the absence of proceedings for divorce, to decree the payment of fixed sums of money for the support of neglected and deserted wives -and children, and to enforce payment of such sums. Section 12797, Compiled Laws of Michigan 1929.

In determining the case of Ex parte Davis, supra, the Supreme Court explicitly declared that the duty and obligation of parents for the support of their children during minority was not a debt, but, arose from the status of the parties, and that the courts, without violating the constitutional provision against imprisonment for debt, could enforce obedience to their decrees for the enforcement of the parent’s duty and obligation, provided such decrees were authorized by the statutes.

Among the eases cited by Justice Brown to sustain the court’s conclusions in Ex parte Davis was Lewis v. Lewis, 80 Ga. 706, 6 S. E. 918, 12 Am. St. Rep. 281, wherein it was decided, relative to a final decree for alimony, “that, where a court directs the payment of alimony by a husband to his wife, it is a duty he owes, not only to his wife, but to the public, to comply with the order; and, if he fails to perform that duty, we see no reason why the court cannot compel him to do so by an órder of attachment directing his imprisonment ip the event of his failure to comply with the order.”

In Pain v. Pain, 80 N. C. 322, also cited in Judge Brown’s opinion, it is said: “The allowance is not a debt within the meaning of the constitution, as contended before us¡, for which imprisonment is not permitted. It is an order of a competent court, only to be enforced as are other judicial commands when necessary by process of attachment against the person. The power to award the process is inherent in the court, essential to the exercise of its jurisdiction and the maintenance of its authority. Without the ability to compel obedience to its mandates — ■ whether the order be to surrender writings in possession of a party, to execute deeds of conveyance, to pay money, as in -the present case, or to perform any other act the court is competent to require to be done — many of its most important and useful functions would be paralyzed- The wilful disobedience of a lawful order is itself criminal, much more so than the nonpayment of costs adjudged against a prosecutor in a criminal action, and for which he may be imprisoned.”

While we have no doubt of the power of the Legislature to so amend our statutes as to empower the courts to decree and compel the payment of allowances for the support of dependent minors as against a parent, either in divorce proceedings or independent of divorce proceedings, yet we are compelled under the existing statutes to deny such relief, when not sought in a divorce suit, pending final judgment. Nothing is better settled than that the Legislature must be regarded as intending statutes, when repeatedly re-enacted, as is the case here, to be given that interpretation which has been settled by the courts. Love v. Wilcox (Tex. Sup.) 28 S.W.(2d) 515, 524 (11); Pearson v. West, 97 Tex. 239, 77 S. W. 944.

Since the petition in this case contained no allegations sufficient to sustain any judgment for defendants in'error, there, was no error in the judgment of the district court.

It is ordered that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the district court be affirmed.


text:
    Alice HOOTEN, Plaintiff in Error, v. J. A. HOOTEN, Defendant in Error.
    No. 5463.
    Supreme Court of Texas.
    June 10, 1931.
    R. D. Allen, of Sulphur Springs, for plaintiff in error.
    Dial & Brim, of Sulphur Springs, for defendant in error.
   GREENWOOD, J.

The plaintiff in error presents the same questions we have determined adversely to her contentions in an opinion this day filed, John Cunningham v. Rozelle Cunningham et al., 40 S.W.(2d) 46. In accordance with the conclusions in that opinion, the judgment of the Court of Civil Appeals should be, and is, affirmed.


author: SHORT, C.

text:
    S. I. ROBISON et al., Plaintiffs in Error, v. WHALEY FARM CORPORATION, Defendant in Error.
    Motion No. 9587; No. 5714.
    Supreme Court of Texas.
    June 24, 1931.
    For former opinion, see 37 S.W.(2d) 714.
   SHORT, C.

The plaintiffs in error have filed a motion for rehearing in this case, which has received our careful consideration and which we overrule. In doing so, however, we think it proper to say that the original opinion does not preclude the commissioners’ court of Bowie county from instituting condemnation proceedings of the land for road purposes, provided_only that it does so in "the manner prescribed by statute. Neither does the original opinion preclude Bowie county, or those of its citizens interested in the subject-matter, from prosecuting a suit against the defendant in error, based upon the contention that Bowie county, and its citizens interested, have acquired by prescription all or any portion of the strip of land in controversy in this case at this time. The original opinion merely holds, on this subject, that the record does not affirmatively show that the trial judge, who tried the case without the aid of a jury, intended to hold, as a fact, that any portion of the land in controversy had been so acquired. Moreover, it further appears from the record that if the district judge had so intended to so hold, the pleadings were not sufficient to identify the strip of land so' claimed to have been acquired by prescription.


author: SHORT, O.

text:
    C. E. FLETCHER et al., Plaintiffs in Error, v. W. B. HOWARD et al. Defendants in Error.
    Motion No. 9626; No. 5725.
    Supreme Court of Texas.
    June 24, 1931.
    For former opinion, see 39 S.W.(2d) 32.
   SHORT, O.

The Attorney General of the state has filed a motion for rehearing on behalf of the defendants in error in this case. We have given this motion careful consideration, and believing that the original opinion is correct, we overrule the motion.

However,. in view of the serious contention made that a certain portion, which we have italicized, of a certain paragraph in the opinion, restrains the highway commission of the state of Texas from locating and designating state highways within this state, which, of course, the Supreme Court could not do, and which another portion of the opinion expressly declares, we deem -it proper to say that the language emphasized was used in view of the issues made by the pleadings, having reference only to the location of the original highway No. 4, and having no reference whatever to the new highway No. 4, as located and designated by the state highway commission. This paragraph, a portion of the language of which we have italicized, is as follows:

“ ‘The defendants who compose the Highway Commission likewise be restrained from appropriating any part of said proceeds towards the building and paving of any other roads than said highways Nos. 4 and 5 as they .exist and did exist on and prior to December 21, 1927; further, that they he restrained from changing the location of said highway No. ⅛ as it is and was designated and used on and prior to December 21, 1927.’ ”


author: HARVEY, P. J. OURETON, C. J.

text:
    HOLLIS, County Clerk, v. PARKLAND CORPORATION.
    No. 1462-5699.
    Commission of Appeals of Texas, Section A.
    June 10, 1931.
    C. C. Gumm, of Port Worth, for appellant.
    McCart, Curtis & McCart, of Fort Worth, for appellee.
   HARVEY, P. J.

The Court of Civil Appeals for the Second district has submitted the following certifi-•ca-te, containing certified questions:

“The Parkland Corporation of Tarrant County sought a writ of mandamus directed to Chester Hollis, county clerk of Tarrant County, requiring him to file for record a plat and dedication of a tract of land, consisting of some sixty acres, about two miles south of the city limits of Fort Worth. The plaintiff alleged that the property was dedicated for cemetery purposes under the name of the Parkland Memorial Cemetery. That plaintiff presented, or caused to be presented, to defendant ‘said plats and dedications,’ hereinafter called plat and dedication, and tendered the same to defendant for filing and recordation in his office in Tarrant County, together with filing fee; that defendant refused to file or record said plat and dedication because the same was not approved by the City Planning Commission of the City of Fort Worth. That plaintiff presented said plat and dedication to said City Planning Commission, and that on August 2, 1928, said plat with the dedication attached thereto was in all respects approved by said City Planning Commission, subject to certain changes and conditions thereafter made. That certain owners in the vicinity of the proposed- cemetery undertook to appeal from said action of said City Planning Commission to the City Council of said City of Fort Worth, and said City Council did, on August 7,1928, upon said purported appeal, undertake to disapprove said plat, which action by said City Council was null and’ void, as claimed by plaintiff. That since the approval of said plat by said City Planning Commission, plaintiff has again tendered said plat with the dedication attached thereto, together with filing fee, and requested defendant to file and record the same in the ‘plat Records’ of Tar-rant County, which defendant failed and refused to do. That it was the duty of defendant to file and record said plat with the attached dedication when, same was first presented to plaintiff, and especially was it the duty of defendant to file said plat and dedication after they had been approved by the City Planning Commission, as directed in chapter 231, page 342, of the General and Special Laws of Texas of 1927, contained in the Acts of the 40th Legislature, at the regular session thereof.
“Plaintiff alleged that he complied fully with the requirements of said Act, and that it was but a ministerial duty of defendant to file said plat and dedication for record. The plat offered for record showed a division of the land into lots and a dedication of the same for cemetery purposes.
“It appears that some of the property owners adjacent to the location of the proposed cemetery are opposed to the location of the cemetery, and have employed counsel to seek to prevent said location. Counsel for defendant introduced in evidence Ordinance ⅜1191, which provides that no person, firm, corporation, etc., should undertake to sell any lot from any tract of land that has been platted into an addition or subdivision, which tract if either located' within the limits of the Oity of Fort Worth or at any point within a space of five thousand feet beyond said limits, without first submitting an accurate map of said plat to the Oity Planning Commission and the Oity Council of the City of Fort Worth, and providing for an appeal from the order of said City Council to the district court, and providing a penalty for the violation of any of the provisions thereof. Said ordinance provides for a supervision of the acts of the City Planning Commission by the City Council, and that if any party be dissatisfied with the decision rendered by the City Council, he may within ten days present a petition to the district court of Tarrant. County for the purpose of determining whether or not said petitioner has complied with the rules, regulations and ordinances of the City of Fort Worth governing the platting of new additions. This ordinance was passed on October 26, 1926, prior to the enactment of the statute passed by the 40th Legislature, heretofore noted. Defendant also introduced the ordinance providing for a City Planning Commission for the City 'of Fort Worth, which provided" that said commission should consist of five members, three members constituting a quorum for the transaction of business. That said commission should procure information and make recommendations to the City Council and should co-operate with the Park Board, the Recreation Board, and all similar organizations, as to all facts bearing upon the needs of the city with regard to recreation grounds, the development and improvement of parks and boulevards, the improvement of river fronts, the extension or opening of streets and avenues and other public ways or places, and city plans and improvements generally. That it should formulate a plan and regulate and restrict the location of trades and industries and the location of buildings designed for specific uses, and also regulate and limit the height and bulk of buildings hereinafter to be erected and, to effect such purposes,, divide the citjr into zones of such number, shape and area as may seem best to carry out a definite plan for the betterment of the city and to submit same to the City Council for approval or rejection. By this ordinance the actions of the City Planning Commission are reviewable by and under the supervision of the City Council.
“The defendant introduced in evidence the following report and letter from the City Planning Commission to the Mayor, City Council .and City Manager of the City of Fort Worth:
“ ‘The plat of a proposed cemetery entitled Parkland Memorial Cemetery was submitted to the City Planning Commission for consideration on June 26, 1928. The location of this tract is between the Crowley Road and the Santa Fé Railroad about one and one-half miles south of the City limits. Immediately following the filing of this plat with the Commission, a protest was filed signed by the owners of approximately 2000 acres of land in the vicinity of the proposed cemetery. Mr. C. C. Gumm, fittorney for the protestants, made the assertion that the Commission had the right to consider the use of land as well Sas the actual layout of streets, alleys, etc. This matter was referred to the Assistant City Attorney, Mr. Geo. Kemble, who concurred in the opinion. After several meetings at which this matter was taken up, the Commission held a hearing on Tuesday, July 21st, at which time the protestants produced expert testimony in an attempt to show that water would filtrate through the cemetery in graves and seep out of the sides of the hill in neighboring property carrying‘with it disease germs which would be inimical to the health of the community. The proponents of the cemetery introduced evidence to show that in similar cases in which injunctions were asked the courts had held that while there was a possibility of infection the probability was not sufficiently strong .to warrant an injunction. Letters from the Sanitary Engineer of Dallas and State Plealth Officers were also introduced to show that there was no knowledge of infections from cemeteries. In addition to this a report was submitted by Dr. Martin, stating that while there was a possibility of infection, it was fiot probable, and in his opinion therefore not dangerous. After due consideration of the evidence, the strong probability of infection was not sufficiently conclusive to justify the City Planning Commission in refusing to approve the plat and the following resolution was subsequently passed:
“ ‘It is agreed that the plat of the proposed Parkland Memorial Cemetery lying between the Crowley Road and the Santa Fe Railroad, about one and one-half miles south of the city limits, would be satisfactory to the City Planning Commission after certain changes were made in the alignment and details of the north and south road through the property and if certain other changes in the plat were made as indicated, and it was decided’ that there was not sufficient evidence to prove that this use of the property would be detrimental to the public health and welfare and-that the City Planning Commission would not be justified in withholding approval of the plat on such grounds.’
“The protestants not being satisfied with the finding of the City Planning Commission requested an opportunity to present its case to the City Council before the signing of the plat and. this letter is therefore addressed to» you to make clear wliat action lias already been taken and tbe reason therefor.
“The defendant introduced the following from the minutes of the City Council:
“ ‘The City Planning Commission reported to City Council -on an application and approved plans for a proposed cemetery, to be known as Parkland Memorial Cemetery, said cemetery to be located a,bout one and one-half miles south of City limits in the vicinity •of Southwestern Baptist Theological Seminary. C. C. Gumm, attorney for property -owners who are opposing this location of said cemetery, appeared before the City Council on behalf of his clients. A. B. Curtis then appeared before the Council representing the owners of the proposed cemetery and urged the approval of the City Planning Commission’s recommendation. After due consideration of the pleas which had been made, a resolution which was offered by Councilman Thompson and seconded by Councilman Jarvis, was unanimously adopted, disapproving the recommendation of the City Planning ■Commission, and disapproving said plat.’
“It is also admitted that the provisions of ■chapter 231, General and Special Laws of the •State of Texas, found on page 342 of the Acts of the 40th Legislature at the regular session thereof, was adopted by the City of Port Worth as part of its charter on February 10, 1928. Counsel for plaintiff introduced in evidence, over the objection of defendant, the following certificate of the City Planning Commission, to wit:
“ ‘This is to certify that heretofore the plat and subdivision attached hereto of a proposed cemetery, located about two miles south of the city limits of the City of Port Worth, on and near the Crowley Road in Tarrant ■County, Texas, belonging to the Parkland •Corporation, was. presented to the City Plan.ning Commission of the City of Port Worth, 'Texas, for its approval. That on to wit, Au.gust 2, 1928, said plat and subdivision were approved by said City Planning Commission, .subject to certain conditions and changes •which were thereafter made to the satisfaction of said City Planning Commission. That thereupon Mr. C. C. Gumm, as attorney for -J. M. Archer et al., owners of property in the vicinity of said proposed cemetery, gave notice of appeal from said action of said City Planning Commission to the City Council of the City of Port Worth, Texas, and said application, together with the action of said •City Planning Commission thereon, was referred to said City Council for action. That thereafter on August 7, 1928, said City Council upon said appeal disapproved said plat and subdivision.’
“The ease here presented is now before us, the district court having granted the writ of mandamus, and the defendant having appealed to this court. We are not thoroughly agreed as to what should be done in the premises, and we think it advisable to certify to your Honors the following questions:
“1. Has the appellee a constitutional or statutory right to have filed for record its plat and dedication tendered to appellant?
“We note that the State Constitution, section 20, article 5, provides that the county clerk shall be the recorder of the county; and that article 16, section 15, of the Constitution provides that the Legislature shall pass laws more clearly defining the rights of the wife, in relation as well to her separate property as to that held in common with her husband, and that laws shall also be passed providing for the registration of the wife’s separate property.
“Article 6591, Rev. Civ. Statutes of 1925, provides that county clerks shall be recorders for their respective counties, and shall record all instruments in writing authorized or required to be recorded in the county clerk’s office.
“2 (a) Is chapter 231, Acts of the 40th Legislature, page 342, constitutional? Does said Act violate Article 1, section XIX of the State Constitution and Article XIV of the Constitution of the United States, the due process of law articles of the State and Federal Constitution?
“(b) Is said Act in violation of Article 1, section 17 of the State Constitution?
“(c) Does said Act, if constitutional, include the platting of cemeteries and the filing of plats therefor?”

The provisions of the Act of 1927 (chapter 231 of the laws passed by the 40th Legislature [Vernon’s Ann. Civ. St. art. 974a, §§ 1-3]), so far as material to this, case, read as follows:

“Sec. 1. That hereafter, every owner of any tract of land situated within the corporate limits or within five miles of the corporate limits of any city in the State of Texas which contains twenty-five thousand inhabitants or more, according to the Federal Census of 1920, or any subsequent Federal Census, who may hereafter subdivide the same in two or more parts for the purpose of laying out any subdivision of any such town, or city, or any addition thereto, or any part thereof, or suburban lots or building lots, or any lots, and streets, alleys, parks or other portions intended for public use, or for the use of purchasers or owners of lots fronting thereon or adjacent thereto, shall cause a plat to be made .which shall accurately describe all of the subdivision of such tract or parcels of land, giving dimensions thereof, and the dimensions of all the streets, alleys, squares, parks, or other portions of same intended to be dedicated to public use, or for the use of purchasers or owners of lots fronting thereon or adjacent thereto.
“See. 2. That every such plat shall be duly acknowledged by owners or proprietors of the land, or by some duly authorized agent of said owners or proprietors, in the manner required for the .acknowledgment of deeds; and the said plat, subject to the provisions contained in this Act, shall be filed for record and be recorded in the office of the County Clerk of the County in which the land lies.
“Sec. 3. That it shall be unlawful for the County Clerk of any county in which such land lies to receive or record any such plan, plat or replat, unless and until the same shall have been approved by the City Planning Commission of any city affected by this Act, if said city have a City Planning Commission and if it have no City Planning Commission, unless and until the said plan, plat, or replat shall have been approved by the governing body of such city. * * * Any person desiring to have a plan, plat or replat approved as herein provided, shall apply therefor to and file a copy with the Commission or -governing body herein authorized to approve same, which shall act upon same within thirty days from the filing date. If said plat be not disapproved within thirty days from said filing date, it shall be deemed to have been approved and a certificate showing said filing date and the failure to take action thereon within thirty days, from said filing date, shall on demand be issued by the City Planning Commission or Governing Body, as the case may be, of such city, and said certificate shall be sufficient in lieu of the written endorsement or other evidence of approval herein required. If the plan, plat, or replat is approved, such Commission or governing body shall indicate such finding by certificate endorsed thereon, signed by the-Chairman or presiding officer of said .Commission or governing body and attested by its Secretary, or signed by a majority of the members of said Commission or Governing Body. * * * ”

Putting aside the grave constitutional questions involved, and treating the provisions of this act as valid, with respect to lands lying outside the territorial boundaries of the city, and as being applicable to plats of cemeteries laid out beyond said boundaries, the 'case will first be considered from that standpoint. The plat appears to be duly acknowledged as required by law, and bears the approval of the city planning commission. This is all that the act calls for as a prerequisite to the recording of the plat in the office of the county clerk. With reference to the approval, or disapproval, of such plats as are contemplated by the act, at least as regards the recording of the plats, the city council of Fort Worth has nothing to do; nor does the act purport to give the city council any authority in that respect, except in case there were no city planning commission. The power to regulate the registration of instruments in the office of the county clerk does not appertain' to municipalities. Even if the ordinance mentioned in the certificate could be construed as prescribing conditions upon which landowners may have a plat of their lands recorded in the office of the county clerk, still the conditions thus attempted to be imposed would be invalid for want of power in the city to make them.

Treating, then, the provisions of the act of 1927 as valid in respect of lands lying outside the territorial boundaries of a city, and as being applicable to plats of cemeteries laid out beyond said boundaries, the Parkland Corporation would be entitled, under the facts, and by virtue of the provisions of the act, to have its plat recorded. If, on the other hand, the said act be invalid, or if for any other reason its provisions do not affect plats of cemeteries lying outside the city limits, then the right asserted herein by the corporation would be governed by the general registration statutes. Article 6591 makes it the duty of the county clerk to record all instruments of writing authorized or required to be recorded in the county clerk’s office. By the provisions of article 6626, certain specified instruments, “or other instruments of writing concerning lands or tenements,” are authorized to be so recorded, when acknowledged or proved according to law. The plat in question, and the accompanying written dedication, come within the purview of the last-mentioned statute;

We recommend that the first certified question be answered by saying that the Parkland Corporation has a statutory right to have filed' for record the tendered plat and dedication. An answer to the other questions is immaterial, for the reasons shown above.

OURETON, C. J.

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