text:
    TEXAS INDEMNITY INS. CO. v. McCURRY.
    No. 1280-5739.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    King, Mahaffey, Wheeler & Bryson, of Texarkana, for plaintiff in error.
    William Y. Brown, of Texarkana, for defendant in error.
   RYAN, J.

This suit was brought by Dan MeCurry, an employee of the International Creosoting & Construction Company, against the Texas Indemnity Insurance Company, insurer of said Creosoting & Construction Company, under the Workmen’s Compensation Act (Vernon’s Ann. Civ. St. arts. 8306-8309), to set aside an award of the Industrial Accident Board, and to recover compensation for a period of 401 weeks, at the rate of $9 per week, being 60 per cent, of his average weekly wage of $15, and to have same paid to him in a lump sum.

It was alleged that MeCurry, while in such employ, and in the course thereof, was turning a pole 35 feet long with a cant hook, in the usual and customary manner, when in some way the pole tripped and threw him and caused him to fall with great force to the ground and against the pole and cant hook, thereby injuring the muscles, tissues, ligaments, and blood vessels of his left side, and injuring him internally, tearing, injuring, bruising, and lacerating the tissues, blood vessels, muscles, and ligaments of the left lung, causing him great pain and suffering and the development of tuberculosis in his left lung, which has since spread to and involves the right lung, as a result of which he has sustained total and permanent incapacity for labor.

The insurance company’s answer consisted of a general demurrer and general denial. Its theory of defense was that MeCurry, at the time of the accident, was suffering from an active tubercular condition incapacitating him for labor, which was anterior to and not caused by the accident and therefore not the result thereof.

In answer to special issues submitted to them, the jury found that MeCurry received an injury in tlie usual course of his employment with the creosoting and construction company, on August 1, 1928, which resulted in permanent “total incapacity” to him, and that he was not affected with tuberculosis at the time of receiving the injury. The jury found also that McCurry’s tubercular condition was the direct and natural result of the injury received by him on August 1, 1928; that $15 was his average weekly age for one year prior to that date. The jury further found that a manifest hardship or injustice to McCurry would result unless his compensation be paid him in a lump sum instead of in weekly payments.

The trial court rendered judgment canceling the Industrial Accident Board’s award, and in favor of plaintiff for a lump sum of $2,962.30, arrived at by allowing discount for present payment at 6 per cent, per annum on the basis of 60 per cent, of an average weekly wage of $15 for a period of 401 weeks beginning on August 1, 1928, which judgment was affirmed by the honorable Court of Civil Appeals. 27 S.W.(2d) 296.

An important issue in the case was whether the plaintiff received an injury while in the usual course of his employment with the International Creosoting & Construction Company, on August 1, 1928. Mr. Wheeler, an attorney for the defendant in arguing to the jury the proposition, contended for by him, that the plaintiff was not injured while in such employ referred to the fact that three witnesses, to wit, E. H. Moore, B. E. Thomas, and C. B. Cox, had each testified that the plaintiff had, on September 7, 1928, told them that, at the time he received the injuries of which he complained, J. A. Taylor, Ed Rose, Bob Miller, and A. B. Collins were working with him, and to the fact that the said J. A. Taylor, Ed Rose, Bob Miller and A. L. Collins had each testified in this case, and had each testified that they were working in the same crew with the plaintiff on the day that he claims to have received his injuries, but said that they did not see Dan McCurry receive any injuries, and such counsel for the defendant insisted that this was convincing proof that McCurry was not injured while in such employ.

Mr. Brown, counsel for the plaintiff, in his closing argument, in answer to the said argument, used certain language claimed by the defendant to be improper and reversible error, as reflected in the following approved bill of exceptions (omitting formal parts), viz.:

“The plaintiff, for the purpose of showing jurisdiction and for the purpose of showing that he had given the requisite statutory notice of his claim for compensation, and for said purpose only, introduced in evidence a certified copy of the claim for compensation which he filed with the Industrial Accident Board of the State of Texas; in which claim he had stated that Dave Ryan and other parties thereafter named, were present at the time he was injured, and which notice was ‘dated on the 18th day of September, 1928. Plaintiff testified on the trial of the case that he was injured about the 1st day of August, 1928, and further testified on cross examination that he had not, on the 7th day of September, at his home, told B. E. Thomas, Y. B. Cox and E. H. Moore that J. A. Taylor, Ed Rose, Bob Miller and A. B. Collins were present when he was hurt.
“After the plaintiff had testified as above set out, the defendant proved by witnesses E. H. Moore, B. E. Thomas and V. B. Cox, that the said Dan McCurry did make the statement to them on September 7th, 1928, while they were at the home of the plaintiff in Texarkana, Texas, that J. A. Taylor, Ed Rose, Bob Miller and A. B. Collins were present when he received the injury that he complained of. The said J. A. Taylor, Ed Rose, Bob Miller and A. B. Collins each testified as witnesses for the defendant, that they were not present when McCurry claims to have been present, and each testified that they did not see McCurry receive any injury on the 1st day of August, 1928.
“And be it further remembered that after the testimony had been concluded, and while J. I. Wheeler, one of the attorneys representing the defendant, was addressing the jury, and while discussing the issue submitted t« the jury by the court, of whether the plaintiff received any injury in the usual course of employment with the International Creosoting & Construction Company on August first, 1928, he referred to the fact that said plaintiff had been contradicted by the statements of Moore, Thomas and Cox as above set out, and further stated to the jury that said plaintiff had been discredited in his switching from one set of witnesses to another, and making statements that were untrue about who was present when he was injured.
“And be it further remembered that the Honorable Wm. V. Brown in the concluding argument to the jury and while discussing the argument of said J. I. Wheeler above referred to, said:
“ T will show you what McCurry said about this claim. Here is the notice he filled out on the 18th day of September and filed with the Board, and in it he stated who was present when he was injured. This will show you whether McCurry has been telling the truth about who was present when he was injured.’
“And at the conclusion of such statement, the said Wm. Y. Brown started to read from said claim for compensation which he had in his hands when Counsel for the defendant objected to the reading of such instrument to the jury, for the reason that the same had been introduced for the purpose of showing jurisdiction and that the requisite statutory notice of his claim for compensation had been given, which objection was by the court sus-tamed. After the Court had sustained such objection, the said Wm. Y. Brown vigorously and heatedly stated, in the presence of the jury, that he had a right to read from the instrument because it showed what McCurry claimed from the start, and then turning abruptly to J. I. Wheeler, one of the attorneys for defendant, who was still standing, said, in the presence of the jury:
“ ‘That’s all right, however, if you want to suppress the- facts and keep the jury from knowing all about it, it is all right with me.’
“And then in a manner indicating the utmost disgust and contempt he slammed the ■paper on the table and started to proceed with his argument to the jury, whereupon counsel for the defendant objected to the statement made by the said Wm. Y. Brown before said jury, that it was all right with him if the defendant desired to suppress the facts and keep the jury from knowing all about it, said objection being made upon the ground that such remarks were wholly out of the record and about matters that had not been introduced in evidence, and there was no evidence introduced on the trial of the cause which authorized such argument, and because said remarks were made solely for the purpose of inflaming and prejudicing the minds of the jury against the defendant and were of a nature calculated to inflame and prejudice the minds of the jury against the defendant, and because said remarks did influence and prejudice the minds of the jury against the defendant; and upon the further ground that such statement was in effect, giving to the jury improper and additional evidence of a nature that was highly prejudicial to the rights of the defendant, and which did prejudice the minds of the jury toward the defendant.
“And be it further remembered that the Court very promptly overruled such objection of the defendant to such remarks and argument of counsel for plaintiff and permitted said counsel to proceed with his argument, to which action and ruling of the Court the defendant then and there in open Court duly excepted and here now tenders this his Bill of Exceptions No. 2, and prays that the same may be examined, signed and approved by the Court, and ordered filed as a part of the record in this cause.”

Opinion.

It is conceded by the Court of Civil Appeals that the argument complained of was improper, and we think the prejudicial effect of it is obvious. Counsel’s charge, for such it was that his adversary was trying to suppress the facts and keep the jury from knowing all about it, was prejudicial in the highest degree, and the trial court’s action in' refusing to sustain the objection thereto could only have the effect of confirming in the minds of the jury the belief that the company was attempting to suppress facts, proper to be shown and discussed.

The paper in question was not in evidence for any purpose except and only to show that statutory notice of the claim for compensation had been given, and, when counsel started to read its contents, the court properly sustained objection thereto.

It was after such objection was sustained (to quote from the bill of exceptions) that counsel “vigorously and heatedly stated, in the presence.of the jury, that he had a right to read from the instrument, because it showed what McCurry claimed from the start and turning abruptly to J. I. Wheeler, one of the attorneys for defendant who was still standing, said, in the presence of the jury, ‘that’s all right, if you want to suppress the facts and keep the jury from knowing all about it, it is all right with me.’ ” ■

Objections to such remarks were overruled by the trial court and the offending counsel permitted to proceed with his argument.

The company’s attorney had the right to object to the reading from the notice of claim, and, when the court sustained such objections, there was nothing which authorized the accusations. The natural effect 'of the improper argument was to create in the.minds of the jury the impression that facts, proper to go to them, were being suppressed through the efforts of the adverse party and a fair trial therefore circumvented ; the argument was reasonably calculated to influence the minds of the jury and create a prejudice against Mr. Wheeler’s client.

The rule is now settled in this state that, where improper argument has been indulged in, the adverse complaining party is entitled to reversal of the judgment, as a matter of law, if under all the circumstances there is any reasonable doubt of its harmful effect, or unless it affirmatively appears no prejudice resulted. Bell v. Blackwell (Tex. Com. App.) 283 S. W. 765; Behringer v. South Plains Coaches (Tex. Com. App.) 13 S.W.(2d) 334; Hubb Diggs Co. v. Bell, 116 Tex. 427, 293 S. W. 808; Floyd v. Fidelity Union Casualty Co. (Tex. Com. App.) 24 S. W.(2d) 363; Hull v. Christian (Tex. Civ. App.) 283 S. W. 568; Missouri-Kansas-Texas Ry. Co. v. Thomason (Tex. Civ. App.) 3 S.W(2d) 106, 107; McMahan v. City of Abilene (Tex. Civ. App.) 8 S.W.(2d) 554.

In Davis v. Hill (Tex. Com. App.) 298 S. W. 526, 527, Judge Speer said; “It is elementary that counsel must confine his arguments to the facts and circumstances in evidence and to deductions fairly to be made from them; that he will not be allowed to supplement the facts or emphasize his contention by the injection into the case of a discussion of matters not fairly within any reasonable deduction from the testimony and circumstances. The courts have not been slow to reverse cases where this rule of argument has been violated to the probable prejudice of the losing party.” And again: “It sometimes happens that the language is so inflammatory or the disclosure of fact is of such a nature that the sustaining of an objection and an instruction to the jury not to consider it will not remove the prejudicial effect. Fort Worth, etc., Ry. v. Hays, 51 Tex. Civ. App. 114, 111 S.W. 446; Trueheart v. Parker (Tex. Civ. App.) 257 S. W. 640; Austin v. Gress (Tex. Civ. App.) 156 S. W. 535; Texas, etc., Ry. v. Rasmussen (Tex. Civ. App.) 181 S. W. 212. The object of every trial is to give the parties a fair hearing according to the facts and circumstances properly before the jury.”

In Houston & T. C. R. R. Co. v. Gray, 105 Tex. 42, 143 S. W. 606, it was held that, if there be a reasonable doubt in considering a charge of misconduct of a jury, as to effect a juror’s action had upon the amount of the verdict, the judgment should be set aside; in Bell v. Blackwell, supra, and Davis v. Hill (Tex. Com. App.) 298 S. W. 526, it is pointed out that this rule of practice should be applied to errors upon the trial whether in the admission of evidence, argument of counsel, or misconduet of the jury.

It is contended by defendant in error that the bill of exception should not be considered because (a) devoid of an allegation that the appellant requested the court to instruct the jury not to consider said remarks, or a request that the same be withdrawn from the jury’s consideration; and (b) because said bill of exception does not state that said argument caused an erroneous verdict to be rendered, or that by reason of the same the verdict was excessive, or that the verdict is any other than it should have been; (c) nor does said bill of exception state that the argument was not in reply to argument of counsel for appellant or that it was not provoked by the argument of appellant’s counsel; and (d) for the further reason that said bill does not allege that but for said argument a different verdict would have been rendered.

The above-cited authorities hold the contrary, and such contentions of the defendant in error must be overruled.

Defendant in error cites, in support of his proposition, among others, the following authorities, viz.: Travelers’ Ins. Co. v. Peters (Tex. Civ. App.) 3 S.W.(2d) 568; Texas Indemnity Co. v. Carson (Tex. Civ. App.) 21 S. W.(2d) 691; United States Fid. & G. Co. v. Weir (Tex. Civ. App.) 286 S. W. 565; International & G. N. Ry. Co. v. Irvine, 64 Tex. 529.

In discussing the case of International & G. N. Ry. Co. v. Irvine, supra, Judge Speer, in Bell v. Blackwell, said in effect, that, if there is any conflict between the holding in that case and in the later cases, the rule announced in the later cases is now too well established to admit of question.

In Western Union Telegraph Co. v. Perry, 95 Tex. 648, 69 S. W. 131, 133, Judge Brown, answering a certified 'question, said: “When exception has been reserved by proper bill to language used by counsel in addressing a jury, the court of civil appeals has authority to review the action of the trial court in reference thereto, although there may have been no request by the complaining party that a charge be given to the jury to disregard the improper language.”

It is true that Courts of Civil Appeals, in Vincent v. Bell, 22 S.W.(2d) 753, and Thompson v. Caldwell, 22 S.W.(2d) 720, hold that, when a bill of exceptions fails to show that the improper argument was not made in response to the argument of opposing counsel, it is not sufficient to show error in that respect.

No such requirement of a bill of exceptions is made either by statute or rule of court. No particular form of words is required except that the objection must be stated in such circumstances as may be necessary to explain, and no more, and as briefly as possible. Article 2257, Rev. Stat. 1925; Dist. Ct. Rule 55. The bill of exceptions is not required to negative any possible fact or state of attending circumstances that would render the objectionable matter without prejudicial effect. Rather the presumption would be that the trial judge did his duty and that there was no modifying or justifying explanation to be made.

We hold that the bill of exceptions is sufficient, and it is not required that it should affirmatively show that the offending argument was not in reply to or not provoked by that of opposing counsel.

Plaintiff in 'error objected to special issue No. 5 for the reason that as framed, the burden was put upon it to show that McCurry was affected with tuberculosis at the time of receiving the injury, if any, when under the law the burden is upon the complainant, and the question should be so framed as to put the burden upon him to show that he was in good health and not affected with tuberculosis at the time of receiving the injury, if any.

The issue submitted was: “No. 5. Was Dan McCurry affected with tuberculosis at the time of receiving the injury, if any?”

The charge upon burden of proof was: “The burden is on the plaintiff to establish the affirmative of the above issues numbers 1, 2, 3, 4, 7, 8, 9, 10, 12, 13, by a preponderance of the evidence. By a preponderance of the evidence is meant the greater weight or degree of credible testimony.”

In addition to such objection to the charge, plaintiff in error requested a special charge, viz.: “Do you find from a preponderance of the evidence that the plaintiff was not suffering on the 1st day of August, 1928, with active tuberculosis of tbe lungs? Answer Tes or No,” wbicb tbe trial court refused.

While tbe issue as submitted was more favorable to plaintiff in error than tbe issue it requested, in that tbe latter required a finding only as to active tuberculosis, whereas the former included tuberculosis, whether dormant or active, the effect of the court’s instructions on burden of proof was, by enumerating certain issues, to exclude, in the minds of the- jury, the other issues not so enumerated, and, by placing the burden of proof on the claimant as to the enumerated issues, to exclude therefrom those not enumerated.

Under the Workmen’s Compensation Act (article 8307, § 5), the burden of proof is always upon the party claiming compensation. Here the claimant asserted his right to compensation because of haying contracted tuberculosis of the lungs as the natural and direct result of injuries claimed to have been received on August 1, 1928, while in the International Oreosoting & Construction Company’s employ, and the budren was on him to establish that fact by a preponderance of the evidence, which necessarily included the further fact that he did not have such disease at the time he alleged he received such injuries; this was a contested question in the case, and the special issue on the subject should have been so framed as to place the burden of proof on him. Nobles v. Tex. Ind. Ins. Co. (Tex. Com. App.) 12 S.W.(2d) 199.

Plaintiff in error complains of the judgment awarding a lump sum other than for weekly payments because there was neither pleading nor proof showing the proper rate of discount for determining the present value of lump sum payment.

Defendant in error frankly confesses error in that respect, on the authority of United States Fid. & G. Co. v. Nettles (Tex. Com. App.) 35 S.W.(2d) 1945, and Texas Employers’ Insurance Co. v. Brock (Tex. Com. App.) 36 S. W.(2d) 704, decided subsequently to the trial court’s judgment herein rendered, ¿nd asks that the judgment be modified so as to allow a recovery from date of the injury to date of decision in the Supreme Court in a lump sum, and to recover the remainder of compensation in weekly payments as they accrue.

In view of our conclusion that the cause should be remanded for. other reasons as above stated, it is unnecessary to pass on that question, as it need not arise on another trial.

We recommend that the judgments of the district court and Court of Civil Appeals be-reversed, and the cause remanded for a new trial.

CURETON, C. J.

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

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.


source: Caselaw Access Project

author: CRITZ, J. OURETON, C. J.

license: Public Domain

text:
    Ex parte GUINN.
    No. 1525-5937.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.
    Roy A. Scott, of Fort Worth, for relator.
   CRITZ, J.

This is an original habeas corpus proceeding brought by Carlos Newton Guinn, the relator, in the Supreme Court. So far as shown by this record, the pertinent facts are as follows:

It seems that relator filed suit in the district court of Tarrant county, Tex., against his wife, Darthula Bell Ouinn, for a divorce. The wife answered this petition, and filed a cross-action, also praying for divorce and for the care and custody of their two minor children. , While the divorce suit was pending, the court made an interlocutory order allowing the wife the care and custody of the children pending the divorce, and enjoining the husband from interfering with her in such custody.

The record also discloses that while the suit was pending the wife made application to the court for alimony in the sum of $75 per month for the support of herself and said children.

On filing of the above application the court entered an order requiring relator to appear before him on the 20th day of September, 1930, and show cause why he should not be required and compelled to pay into the registry of the court such sum as the court may deem proper and necessary for the support and maintenance of the wife and children during the pendency of the suit. •

It seems from the record before us that on the day named in the above order the parties appeared before the court, and the court entered an agreed order, of which the following is the relevant part: “It is further considered, ordered, adjudged and decreed by the court that the plaintiff, Carlos Newton Guinn, until the further orders of this court, be and he is hereby ordered, required and compelled to pay the sum of Eorty and No/100 Dollars ($40.00) per month, payable Twenty and No/100 Dollars ($20.00) on the second and sixteenth day of each month hereafter, into the registry of this court for the support and maintenance of said minor children, and that all costs of this proceeding be and the same are hereby taxed against said plaintiff, for which execution may issue in favor of defendant and the officers of this court.”

We presume from the' record that relator failed and refused to pay into the registry of the court the money required by the above order, except he paid $25 on April 21, 1931, and was cited by the court to show cause why he should not be held for contempt for disobeying said order. On this hearing the respondent was adjudged in contempt of court for disobeying the above order and committed to jail. The relevant part of such contempt order is as follows:

“It is therefore ordered, adjudged and decreed by the court that the plaintiff Carlos Newton Guinn, be, and he is hereby, held and adjudged guilty of contempt of this court and that he should be, and he is hereby sentenced and confined to the County Jail of Tarrant County, Texas, as punishment for such contempt, and there to be kept and remain, till h.e purge himself of such contempt in such way and manner as to this Court may seem meet and proper or it shall deem and hold sufficient, and that the plaintiff be- and is hereby remanded to and placed in the custody of the Sheriff for such confinement;
“It is further ordered that said Sheriff commit said plaintiff to and place him in the said County Jail and lceep him there confined till he shall purge himself of said contempt;
“It is further ordered by the court that the costs of these proceedings be and the same are hereby taxed and adjudged against the plaintiff for which execution may issue in favor of defendant and the officers of this court.”

After the entry of the above order, the relator was, by virtue thereof, taken in charge by the sheriff of Tarrant county, and placed in jail. Thereupon he presented his application for writ of habeas corpus to the Supreme Court. The application was granted by Chief Justice C. M. Cureton, and bond fixed at $500, pending the disposition of the case by this court. The sheriff of Tarrant county has made due return showing that he has obeyed the writ and released the relator on bond as required by this court.

The relator contends that the order adjudging him in contempt and committing him to jail is void for two reasons:

1. Because the original order of date September 20, 1930, requiring him to pay into the registry of the court the sum of $40 per month for the support and maintenance of the two minor children of relator, is a mere contractual or civil obligation, and not an order for alimony as contemplated and provided by article 4637, R. C. S.

2. Because such judgment is too indefinite to prescribe a punishment for a past offense, and too uncertain to define what relator must do to purge himself of such contempt.

It is the settled law that where suit for divorce is pending in any district court in .this state, the court has power, under the provisions of article 4637, supra, pending the action, to enter a proper order allowing alimony for the support of the wife and minor children. Cunningham v. Cunningham (Tex. Sup.) 40 S.W.(2d) 46. We think that when the order of September 20, 1930, is viewed in the light of the statute and the record it is evident that it is nothing more than an interlocutory order allowing alimony pending-divorce under authority of article 4637, supra.

It seems to be contended by relator that because the order of September 20, 1930, supra, shows upon its face that it was entered by agreement it is for such reason void. This contention is without merit. The statute, article 4637, expressly provides that the court shall allow a sum for the wife’s support in proportion to the means of the husband, until final decree shall be made in the case. The statute contemplates that the court has power to hear evidence and fix the amount under the terms of the statute. This being true, there is certainly no good reason to hold that the court may not enter a perfectly valid order for alimony where the parties themselves agree on the amounl.

Relator contends that the order of date September 20, 1930, supra, is void, under the holdings of the Court of Criminal Appeals in Ex parte Ellis, 37 Tex. Cr. R. 539, 40 S. W. 275, 66 Am. St. Rep. 831, and Ex parte Gerrish, 42 Tex. Cr. R. 114, 57 S. W. 1123. A reading of these cases discloses that neither of them have any application here.

In Ex parte Ellis it is shown that in a final divorce decree it was decreed that the husband should pay the divorced wife the sum of $5 per month during a certain period for the support of their minor child. The divorced husband failed to pay the sum so decreed and was adjudged in contempt of court and committed to jail until the sum due should be paid. The Court of Criminal Appeals, under the above record, very properly held the judgment of contempt void on the ground that the sum adjudged was not alimony, but merely a civil obligation. In this connection the Court of Criminal Appeals further very properly held that the court was without power to allow alimony in a final divorce decree.

In Ex parte Gerrish, supra, it is shown that in a final decree of divorce it was provided that the husband should pay $20 per month to a minor daughter for her care and support. This provision of the judgment was entered by agreement. The husband failed to pay this sum as in the judgment provided, and was adjudged in contempt and committed to jail. The Court of Criminal Appeals reaffirmed the doctrine announced in Ex parte Ellis, supra, and held that the judgment was a mere civil obligation, and not alimony, and so discharged the relator. The judgment was not condemned because it was entered by agreement, but because it was not an interlocutory decree allowing alimony, and therefore 'could not be enforced by contempt proceedings.

In view of what we have said it is evident that we hold that in so far as this record discloses the order of September 20, 1930, is a valid interlocutory order allowing alimony.

We, however, are of the opinion that the order of date June 8, 1931, adjudging relator guilty of contempt and committing him to jail, is void because it is too indefinite to prescribe a punishment for a past offense, or to define the thing relator must do to purge himself of such contempt. Ex parte Kottwitz, 117 Tex. 583, 8 S.W.(2d) 508, 509.

In the Kottwitz Case, supra, our Supreme Court, speaking through Chief Justice Cure-ton, clearly and plainly announces the rule that a judgment punishing for contempt must be definite where its purpose is to punish for a past offense, and, where its purpose is to secure compliance with some order, it .must be entire, and for a time or on condition certain, and a judgment for contempt which fails to meet these requirements is void. We quote the following from the opinion in the Kottwitz Case:

“The punishment specified in the order of the court is clearly not within the terms of this statute, nor is it limited to such time as the relator might comply with the orders of the court by turning over to the receiver the books and papers concerning which the contempt arose. In other words, there is no time limit of any character in the decree. It is an elementary principle of the law of contempt that the punishment must be definite, where its purpose is punishment for a past offense; and, where its purpose is to secure the compliance of some order, it must be entire, and for a time or Upon condition certain, and that a judgment which is not certain as to time or condition in scwne manner is a void judgment. 6 Ruling Case Raw, pp. 535, 536, § 48; 13 Corpus Juris, p. 85, § 131, p. 92, § 140; Ex parte Kearby, 35 Tex. Cr. R. 531, 34 S. W. 635, 636; State ex rel. Rohde v. Sachs, 2 Wash. 373, 26 P. 865, 26 Am. St. Rep. 857; O’Rourke v. Cleveland, 49 N. J. Eq. 577, 25 A. 367, 31 Am. St. Rep. 719; State v. Voss, 80 Iowa, 467, 45 N. W. 898, 8 L. R. A. 767. * * *
“It is true that Revised Statutes, art. 4661, relating to the power of the court to punish for disobedience of injunctions, gives the court power to punish for contempt, and authorizes the court to imprison one who has disobeyed an injunction until he purges himself of the contempt ‘in such manner and form as the court or judge may direct.’ This, however, means merely that the court has the power to prescribe the manner and form in which the one adjudged guilty of contempt may purge himself, and has nothing to do with the validity of a decree which must, be definite and certain in the punishment or confinement adjudged. An order of a court that one adjudged guilty of contempt is to be confined in jail until he purges himself of contempt must define what is required of him, in order that he may purge himself of the contempt. Otherwise the decree is too indefinite to be carried into effect.”

Under the rule above announced the court had the power to punish relator for disobeying the alimony .order of date September 20, 1930. He could have done this by assessing a definite fine, or imprisonment, or both. On the otfier hand, the court had the power to imprison relator until he purged himself of contempt “in such manner and form as the court or judge may direct.” This, however, means that the order itself must define and direct definitely the thing, or things, which must be done by the party adjudged in contempt in order to purge himself.

When we come to examine the order in question here, we find that it utterly fails to meet the rule above announced. It makes no attempt to assess a definite fine or imprisonment for a past offense, and, if its purpose is to imprison relator until he complies with the alimony order, it absolutely fails to so state. On the other hand, the order commits relator to jail, “there to be kept and remain, till he purge himself of such contempt in such way and manner as to this court may seem meet and proper or it shall deem and hold sufficient,” etc. It is clear that this order does not define and direct definitely the thing which relator must do tó purge himself of contempt. We need not pursue the matter further. The order of commitment is utterly void.

It follows from what we have said that relator should be discharged, but on the ground only that the order of commitment is void for want of definiteness.

We therefore recommend that the relator be discharged from custody without prejudice to the right of the district court of Tarrant county, Tex., to enforce its order for alimony by proper order and procedure if the facts justify.

OURETON, C. J.

The opinion of the Commission of Appeals is adopted, and the relator discharged.


author: RYAN, J. CURETON, C. J.

text:
    LINDIG v. JOHNSON CITY STATE BANK.
    No. 1276-5731.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    N. T. Stubbs, of Johnson City, for plaintiff in error.
    I-I. H. Sagebiel, of Fredericksburg, for defendant in error.
   RYAN, J.

1. On June 1, 1923, Otto Burrer bought 425 head of goats from Harry Beck and Herman Lindig, in payment for which he executed his promissory note for $1,288.90, payable five months after that date, with 8 per cent, annual interest and 10 per cent, attorney’s collection fee in case of default in payment. Said note provides: “This note is secured by 125 goats including mohair.”

Said note was acquired by Charles Lindig (father-in-law and father respectively of the payees) soon after its execution, for value, and Burrer made payments to him from time to time, until the indebtedness was reduced to approximately $100 and about 160 goats remained on hand, the others having died or been sold.

In the fall, close to December, of 1926, Charles Lindig, with Burrer’s consent, took possession of the remaining goats, sold them for $640, applied the proceeds to payment of the balance due on said note and set aside the excess as a special fund which he tendered into court to be disposed of as the court should decide.

2. To secure an antecedent debt to the Johnson City State Bank of approximately $4,000 (evidenced by their notes all dated June 1, 1926, and due October 1, 1926), Burrer and wife, on June 3, 1926, executed chattel mortgage on 30 head of cattle, 5 horses, 3 mules, and 150 goats, and their increase.

Burrer testified, without contradiction, that everything he owed the bank was so owing prior to June 3, 1926, when he executed the mortgage, that he obtained no money from the bank after that date; he testified also that the goats described in the bank’s mortgage were bought by him from Herman Lindig and Harry Beck, on credit.

Burrer further testified that he told the bank’s cashier when he executed the mortgage that he could not give the bank a first lien on the goats because Charles Lindig had such a mortgage, but the cashier said that made no difference and he could mortgage them again.

This was denied by the cashier who further testified that Burrer offered the goats as additional security to get more time on his indebtedness.

3. The bank filed suit in the district court of Blanco county against Burrer and wife, and on October 19, 1926, obtained judgment by default against them for the amount of its debt, interest, and attorney’s fee, with foreclosure of its lien on the personal property described in said chattel mortgage and of a second mortgage lien on certain real estate therein described. At the bank’s request it was ordered that no order of sale or execution should issue on said judgment until on' or after December 1, 1926.

On December 8, 1926, order of sale issued, and under it the sheriff of Blanco county levied on and sold all the property described in the judgment, except the goats, which the sheriff reported could not be found in Blafico county. The proceeds of such sales were credited on the judgment.

4. This suit was filed on August 8, 1928, in the district court of Gillespie county, by the bank against Charles Lindig, to recover the value of the goats, on the allegation that said Lindig, without the bank’s knowledge and consent, took exclusive possession thereof and converted the same to his own use and benefit, although said goats were subject to the bank’s lien and claim for the unsatisfied balance due on the judgment against Burrer and wife; it appears from the recitals in the petition that such unsatisfied balance due is in excess of the value of the goats.

5. The defendant, Lindig, by special answer, alleged execution and delivery of' the lien and note dated June 1,1923, by Burrer to Harry Beck and Herman Lindig, his ownership thereof, for a valuable consideration paid by him to the payees of said note, on or about June 15, 1923, the various payments made by Burrer thereon until on or about October 30, 1926, when there remained unpaid thereon the sum of $400.44 which Burrer was unable to pay, whereupon Burrer turned over the remaining goats, 160 in number, to defendant, who sold them at the reasonable market value of $4 per head, and applied the proceeds of such sale to the balance due him by Burrer, and tendered into court the balance remaining, subject to the court’s orders.

6. The trial court submitted to a jury two issues, viz.: “First: Did the plaintiff, Johnson City State Bank, at the time it first secured its chattel mortgage lien on the goats in question, have knowledge of the fact that Charles Lindig held a lien against said goats to secure the note held by him and introduced in evidence?” which was answered “Yes”; and “Second: What was the market value of the goats in question in Blanco County, Texas, in December, 1926?” which the jury answered “$4.00 per head.”

The court therefore found that plaintiff bank has a valid lien on the goats in controversy, but the defendant has a valid prior lien thereon of which the plaintiff had notice, and rendered judgment in favor of defendant for $400.44, to be first deducted from $640 (value of all the goats) and in favor of the plaintiff bank against defendant for the balance, amounting to $239.56, with 6 per cent, annual interest from December 1, 1926, and all costs incurred.

7. On appeal by the bank, the Court of Civil Appeals reversed said judgment and rendered judgment in favor of the bank for $600, with interest and all costs of suit. 26 S.W.(2d) 658.

Opinion.

Beck and Lindig and their assignee, Charles Lindig, had a valid chattel mortgage lien on tile goats in controversy, as between them and Burrer, althougb not filed and registered under the Chattel Mortgage Act. S. A. Brewing Ass’n v. Arctic Mfg. Co., 81 Tex. 99, 16 S. W. 797; Keller v. Smalley, 63 Tex. 519; Sparkman v. First State Bank, 112 Tex. 33, 244 S. W. 127; Snyder v. First National Bank (Tex. Civ. App.) 32 S. W. 162; Stewart Lumber Co. v. Miller Lumber Co. (Tex. Civ. App.) 144 S. W. 343.

It is contended by the bank that under article 5489, Rev. Stat., such chattel mortgage is void as to it, because not registered as required of chattel mortgages.

That article is as follows: “All reservation of the title to or property in chattels, as security for the purchase money thereof, shall be held to be chattel mortgages, and shall, when possession is delivered to the vendee, be void as to creditors and bona fide purchasers, unless such reservations be in writing and registered as required of chattel mortgages. Nothing in this law shall be construed to contravene the landlord and tenant law.”

Under article 5490, Rev. Stat., every, chattel mortgage upon personal property' not accompanied by an immediate delivery followed by an actual and continued change of possession of the mortgaged property shall be absolutely void as against creditors of the mortgagor and as against subsequent purchasers and mortgagees or lienholders in good faith, unless forthwith, deposited and filed in the proper county clerk’s office.

In construing the latter article, Judge West, in Brothers v. Mundell, 60 Tex. 240, said that a distinction exists between “creditors” on the one hand and “subsequent purchasers and mortgagees in good faith” on the other hand, because of the peculiar language of the statute. He concluded that “good faith” shall be required only of purchasers, mortgagees, or lienholders of the original mortgagor, but, as to “creditors” of the mortgagor, the instrument shall be absolutely void, no matter whether they acted in good faith or not in crediting the mortgagor or in seeking to enforce their debts against the mortgaged property.

The contest in that case was between an attaching creditor and the purchaser at foreclosure sale of a stock of goods growing out of a mortgage under the Chattel Mortgage Law. The attaching creditor was not a party to the foreclosure suit, and therefore not bound by the judgment rendered therein, and hence it became necessary for the other party to establish the validity of his mortgage in the then pending suit.

Lindig was nob a party to the bank’s foreclosure suit against Burrer, .and therefore not affected by the judgment therein rendered, and the subsequent proceedings in the foreclosure suit ^ere not binding on him, just as the mortgage foreclosure judgment and subsequent proceedings in Brothers v. Mundell were not binding on the attaching creditor.

We must therefore inquire if the bank is a “creditor” within the meaning of the Chattel Mortgage Law.

Chief Justice Willie, in Overstreet v. Manning, 67 Tex. 657, 4 S. W. 248, 251, defined a “creditor” within the meaning, of the Chattel Mortgage Law as one who has acquired a lien by some process of law, and does not include mortgagees and other lienholders by contract or act of the parties.

In Bowen v. Lansing Wagon Works, 91 Tex. 385, 43 S. W. 872, 874, Justice Denman said that the term “creditors,” as used in article 3327 (equivalent to article 5489, Rev. Stat. 1925) and article 3328 (substantially equivalent to art. 5490, Rev. Stat. 1925), have the same meaning, and the word “purchasers” in the first includes the same persons as “purchasers, etc.,” in the second, and includes all persons who have fixed their liens by contract or act of the parties, and embraces holders of claims secured by trust deed or mortgage, who, in order to bring themselves within the terms of the act, must show that they hold “bona fide” or “in good faith,” and in order to do so they must prove, not only a consideration advanced, but that they had no notice of the unrecorded lien. This consideration must not be a pre-existing debt. Overstreet v. Manning, 67 Tex. 663, 4 S. W. 248; Bowen v. Wagon Works, supra.

The statute does not make the requirement of good faith as to creditors, but it does make such requirement of subsequent purchasers and mortgagees or lienholders. Oak Cliff College v. Armstrong (Tex. Civ. App.) 50 S. W. 610.

Therefore the bank was not a “creditor” within the meaning of the Chattel Mortgage Law, and its claim must come under the second class, of which good faith is required and must be shown before it can be given preference over the unregistered mortgage held by Lindig. Good faith can only be shown by proof of payment of a valuable consideration and want of notice of the prior unregistered mortgage.

The jury’s finding that the bank, at the time it first secured its chattel mortgage lien on the goats in question, had knowledge of the fact that Lindig held a lien against said goats to secure-the note held by him, is fatal to its recovery as against Lindig, because it was not (having such knowledge) a bona fide purchaser, which term, as used in the statute, embraces a holder of a contract lien such as the bank claims under. Commercial Credit Co. v. Schlegel-Storseth Motor Co. (Tex. Com. App.) 23 S.W.(2d) 702; Neely-Harris-Cunningham Co. v. Lacy Bros. (Tex. Civ. App.) 152 S. W. 441; Tips v. Gay (Tex. Civ. App.) 146 S. W. 306.

It is also contended by defendant m error that tbe issue of whether the hank, when it first secured its chattel mortgage lien, had knowledge of the prior Lindig lien, should not have been submitted, for the reason, as stated in its objections to the trial court’s charge, “that under the legally admissible testimony and the law as applicable to the facts of this ease, the submission of such issue is-unwarranted.”

As above stated, the bank was not a “creditor” within the contemplation of the Chattel Mortgage Law, and therefore the effectiveness of its lien as against that of Lindig depended upon its being a- bona fide purchaser or lienholder in good faith. There was a conflict in the testimony on the subject, and the issue was therefore properly submitted to the jury as a question of fact.

The bank’s petition alleged the recovery in debt and foreclosure of a mortgage lien against Burner in a proceeding to which Lin-dig was not a party, and Lindig’s subsequent conversion of the goats in question without the bank’s knowledge or consent.

The bank’s petition showed that its claim was not as a “creditor,” but only as a mortgagee.

The defendant Lindig pleaded his anterior mortgage; the pleadings of the parties raised the issue, and the question of good faith between Lindig, the senior lienholder, and the bank, as junior lienholder, was necessarily involved, the burden of proving which, on the part of the bank, rested on the bank.

In Turner v. Cochran, 94 Tex. 480, 61 S. W. 923, 924, Judge Williams announced the rule in this character of cases to be: (1) as against a creditor whose lien has been fixed by legal process, the holder of a prior unrecorded instrument from the debtor has the burden of proving notice of his right to such creditor at the time of or before the attaching of the lien, but,(2) a junior purchaser or lienholder, attempting to defeat a prior unrecorded deed or lien from the same grantor for the same property, has the burden to show that he is a holder for valuable consideration and without' notice of the previous instrument.

In that case the controversy was between the claimant und,er an unrecorded deed to land, and a subsequent mortgage creditor. Judge Williams said:

“Since we can discover no reason why a junior mortgagee in this respect should be regarded as holding a stronger position than that of the holder of a junior deed, we cannot assent to the contention that a different rule as to burden of proof applies to them, The reason of the rule, as between two holders of deeds from the same party, is that the first deed has passed the legal title to the grantee therein, and upon this he is entitled to stand and to recover until the facts prescribed by law to defeat it have been made to appear (McAlpine v. Burnett, 23 Tex. 652); and this reason'certainly operates with as much force against a junior mortgagee as against a junior vendee. This would hardly be questioned were it not for the difference made by the decisions referred to between purchasers and creditors with liens fixed by law. If there is any reason which distinguishes the case of the junior purchaser from the classes of creditors mentioned, it equally distinguishes from them the ease of a junior mortgagee.
“We therefore conclude that the burden of proof was upon those claiming under the junior mortgagee to show the facts which would give it precedence over the prior deed.”

Here the court’s charge required the jury to find the issues of fact “from a preponderance of the credible evidence adduced” and placed the burden of proof upon the bank. This was not error. Lindig’s mortgage was superior to that of the bank in the absence of allegation and proof by the bank that it had paid value without notice. Good faith can only be shown by proof of payment of valuable consideration and want of notice of the prior mortgage. Neely-Harris-Cunningham Co. v. Lacy Bros. (Tex. Civ. App.) 152 S. W. 441.

The jury having found that the bank, at the time it secured its chattel mortgage lien, had knowledge of the prior Lindig lien, it was therefore not a purchaser or lienholder in good faith as against Lindig, and the trial court rendered the proper judgment.

We therefore recommend that the judgment of the Court of Civil Appeals be reversed, and that of the district court be affirmed.

CURETON, C. J.

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


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

text:
    HARDY et al. v. BUMPSTEAD.
    No. 1248-5626.
    Commission of Appeals of Texas, Section B.
    July 22, 1931.
    Smith, Crawford & Combs, of Beaumont, for plaintiffs in error.
    Coe & Briggs, of Kountze, and A. M. Huffman, of Beaumont, for defendant in error.
   LEDDY, J.

Plaintiffs in error are the record owners of the land in controversy and entitled to recover the same unless defendant in error has title under the ten-year statute of limitation.

In order to justify the conclusion that title has been perfected by defendant in error under the provisions of the ten-year statute (Rev. St. 1925, art. 5510), it must appear his possession and use of the land has been continuous and uninterrupted for the required period of time. If there is a break in the continuity of his possession, it devolves upon him to show that it only existed for a reasonable period. Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265.

A careful consideration of the facts shown by this record convinces us that the continuity of defendant in error’s possession was broken in 1925 for a period of more than eight months, an unreasonable length of time under the existing circumstances; hence he has failed to show the required continuous and unbroken possession of the premises in controversy for the complete statutory period.

The evidence discloses that defendant in error, with his family, consisting of a daughter and two minor sons, went upon this 106-acre tract of land in 1917. At.the time he moved on the place, there was a small shack or building located thereon which he flodred and moved into. He cleared and inclosed a tract of about two kcres near the house and built a small chicken house and smokehouse, these buildings being eight by ten feet in size, and constructed of pine slabs. The small tract of land inclosed was gradually enlarged by clearing from year to yean up to 1922, when it embraced about five acres within the inclosure. There was no enlargement of the inclosed portion after that time. It appears defendant in error raised crops upon the five-acre tract each year, with the exception of 1925, which consisted of corn, potatoes, and vegetables. At different times he had some hogs and chickens upon the place. His daughter married and left the place in 1920, the two sons remaining with him until 1924, when one of them moved to the state of Arkansas. In 1922, the dwelling was destroyed by fire, and defendant in error moved into a little crib and smokehouse on the place, and remained there, making a crop within the small inclosure during that year. In 1924, he built a one-room house out of lumber cut from the premises, and lived in this house with his son. In 1925, no crop or garden was cultivated on the place. During that year, defendant in error and his son moved to other premises two and a half miles from the land in question and resided on what was known as •the Daniels place, where they cut railroad ties on their own account. They cultivated no crop on the premises in question, and made no other use of the land during the year 1925, except the son occupied the house during the trapping season, .which terminated about the first of March, 1925. From that date until 1926, the place was not used or cultivated in any manner, outside of occasional visits to the house by the father and son, who stayed all night there perhaps once or twice a week. It was in evidence that, when defendant in error and his son moved to the Daniels place in 1925, they took with them a part of the household goods and left a portion, as well as some plow tools. The record is silent as to what household goods remained in the house or the condition thereof, nor does it disclose the number or character of plow tools left on the place. It was not shown whether the house was locked so as to prevent its use by strangers during the time defendant in error resided at the Daniels place.

Does the evidence, when considered in the most favorable light to defendant in error, show that there was such a break in the continuity of his possession in 1925 as to prevent the perfection of title under the ten-year statute of limitation? We think it does.

To constitute adverse possession, the party occupying the land must in some way appropriate the same to some purpose to which it is adapted. While actual residence on the land is not essential to constitute adverse possession (Cantagrel v. Von Lupin, 58 Tex. 570), it has been determined that the possession referred to by the statute means an actual residence on the land, or such continuous and uninterrupted cultivation, use, and enjoyment of same as to be visible, notorious acts of ownership sufficient in character to give notice to the owner that his land is being adversely claimed by another. Kimbro v. Hamilton, 28 Tex. 560; Carlock v. Willard (Tex. Civ. App.) 149 S. W. 363, 365; Texas Jurisprudence, vol. 2, § 39.

Nor is the mere fencing of the land or erection of other improvements thereon sufficient to constitute adverse possession, unless accompanied by actual occupation or open use. Niday v. Cochran, 42 Tex. Civ. App. 292, 93 S. W. 1027.

“When yearly crops are raised [on the place],” says Justice Williams, in Dunn v. Taylor, 102 Tex. 80, 113 S. W. 265, 268, “it may be that actual occupancy of a tenant for the time between the harvesting of one crop and the preparation for another should not be held to be essential. In such cases the appearances on the land itself would probably show the purposes for which it is being used.”

The gap in defendant in error’s possession was not merely an interval between the harvesting of one crop and the preparation for another, as it is undisputed no crop of any character was made on the land during the year 1925, nor was the place used for any other purpose for which it was adapted. No livestock or fowls were kept on the place nor any timber cut therefrom _ during said year. The only occupancy during this period was the occasional visits of the father and son, at most once or twice a week, to stay all night in the house, on the premises. We do not think that such use of the place was sufficient to constitute notice to the owners during the year 1925 of an existing intention of defendant in error to claim ownership of the land.

The owners of this land could have visited it every day during the daytime for a period of eight months without discovering that it was being used for any of the purposes to which it was adapted, or that the house was actually occupied by any one asserting a claim .to the land. Certainly plaintiffs in error were not required to use the extraordinary degree of diligence necessary to discover defendant .in error’s nocturnal visits to this property. The fact that the land appeared to have been previously used and occupied was not notice to the owners of an existing intent of the former occupant to appropriate •the land. On the contrary, all the appearances during 1925 indicated an abandonment of any such purpose.

It is true defendant in error offered proof tending to show that during the time he was away from the place in 1925 he continuously claimed it as his own. In order to perfect title by limitation, it is essential that more than a mere claim to the land must be shown. The claimant is required to establish continuous and uninterrupted cultivation, use, and enjoyment thereof. Noland v. Weems (Tex. Civ. App.) 141 S. W. 1031, 1033; Peden v. Crenshaw, 98 Tex. 370, 84 S. W. 362.

Judge Brown, speaking for the Supreme Court, in Nona Mills Co. v. Wright, 101 Tex. 14, 102 S. W. 1118, 1121, in discussing the character of possession required to support a title by limitation, said: “To constitute adverse possession, the party occupying the land must in some way appropriate the land for some purpose to which it is adapted. Mere occupancy of land without any evidence of an intention to appropriate it will not support the statute of limitation.”

But it is claimed that some of the fencing on the place was kept up during the year 1925. The construction or keeping up of a fence upon the land of another is insufficient to constitute adverse possession. Appel v. Childress, 53 Tex. Civ. App. 607, 116 S. W. 129; Hermann v. Fenn, 61 Tex. Civ. App. 283, 129 S. W. 1139; Hankins v. Dilley (Tex. Civ. App.) 206 S. W. 549.

In the case of Pendleton v. Snyder, 5 Tex. Civ. App. 427, 24 S. W. 363, 364, the facts showing adverse possession were much stronger than those contained in this record. There, the parties claiming such possession lived in the house on the place for about four months out of each year. While away from the house they left their household goods, also feed and corn in the cribs -on the place. For several months of the year their cattle were kept in pens constructed on the land. Under these circumstances, it was held the character of use was insufficient to constitute that continuous possession contemplated by the limitation statute. The court, speaking through Justice Williams in discussing such question, said: “The occasional use of a house upon the land, 'such as is shown in this instance, does not, in our opinion, constitute a continuous possession of the land, any more than would the occasional use of the land itself for herding and grazing stock upon it. Such use is of too casual and transitory a character. The possession of a key to a house is not possession and use of the land. It is true that the character, of the evidence of possession varies with the use to which the land is, adapted, and to which it is put, but such possession must nevertheless, in all cases, be continuous and unbroken. According to the evidence, there was no one upon the land the larger part of each year, the only evidence of its being used when the herders were away being an unoccupied house and some open stock pens. The appearances indicated just such casual and occasional use of the land for the purpose of managing the stock as has often been seen in this state, and which is held not tp constitute possession.”

Defendant in error’s lack of use and occupancy of the premises for the year 1925 cannot be aided by the fact that his possession may meet the test required by law for the remainder of the limitation period. As said by our Supreme Court in Dunn v. Taylor, before cited, “We cannot admit the right of the court to require only nine or nine and a half years of continuous possession when the law requires ten, and this would be the effect of overlooking gaps of six months or a year between tenancies.”

We conclude that as the defendant in error’s use and enjoyment of the premises during the year 1925 was. insufficient to constitute the character of adverse possession required by the statute, plaintiffs in error’s requested peremptory instruction should have been given.

We recommend the judgments of the trial court, and the Court of Ciyil Appeals be reversed, and that judgment be here rendered for plaintiffs in error.

CURETON, C. J.

‘Judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiffs in error, as recommended by the Commission of Appeals.

GREENWOOD, J., not sitting.


author: CRITZ, J.

text:
    CITY OF FORT WORTH v. BOBBITT, Atty. Gen.
    Motion No. 9571; No. 1455-5690.
    Commission of Appeals of Texas, Section A.
    July 22, 1931.

      For original opinion, see 36 S.W.(2d) 470.
    R. E. Bouer, City Atty., and George C. Kemble, both of Fort Worth, and John D. McCall, of Dallas, for relator.
    James V. Allred, Atty. Gen., and Scott C. Gaines, Asst. Atty. Gen., for respondent.
   CRITZ, J.

As shown by our original opinion, 36 S.W. (2d) 470, this is an original mandamus proceeding filed by the city of Fort Worth, ,a city duly and legally incorporated .under and by virtue of the Constitution and laws of this state, with a population of more than 5,000, and operating under a special charter as a home rule city, against the Attorney General of Texas. As originally filed, the petition sought a Mandamus to compel the Attorney General to approve certain “special improvement bonds or certificates,” issued by the city under the provisions of chapter 43, p. 82, General Laws, 4th Called Session, 41st Legislature, 1930. The Attorney General declined to approve such bonds, contending that the act above mentioned was unconstitutional and void in several particulars.

In our original opinion, we sustained the contentions' of the Attorney General to the effect that the above act was unconstitutional and void because in contravention of section 56 of article 3 of our State Constitution; in that said original act sought to regulate the affairs of a city by a local law. This holding settled the case in . its then status, and we did not pass on the other constitutional objections made by the Attorney General.

After the original opinion herein was adopted by the Supreme Court, and after the judgment therein recommended was entered, and prior to the filing of the instant motion for rehearing, the Legislature of Texas, convened in its 42d Regular Session, passed a new law which is H. B. No. 882, and which became effective March 27, 1931 (Sp. Laws 1931, c. 74 [Vernon’s Ann. Civ. St. art. 835d]). The provisions of the new law are substantially identical with those of the old law in so far as the issuance of “special improvement bonds or certificates are concerned.” The new law, however, is made applicable to “Cities in the State of Texas, having a population of more than 100,000 inhabitants according to the last preceding United States census.”

It is admitted that Fort Worth has a population of more than 100,000, as shown by the 1930 census. .

From the statement we'have made, it is evident that the new law is not subject to the objection that it is a local or special law in violation of section 56, of article 3 of our State Constitution, as was the old law.

Also, the new law contains the following-validating provision: “Sec. 9. All proceedings heretofore had by any city acting under the provisions of Chapter 43, passed by the 4th Called Session of the 41st Legislature, are hereby expressly validated. All ordinances and resolutions passed by the governing boards of said cities in reference to accepting the powers and assuming the duties permitted and prescribed under said law, and all resolutions and ordinances pledging and impounding special assessment certificates thereunder, authorizing the issuance of special improvement bonds and assuming the statutory duties imposed under said law, and all actions of said city officials in executing special improvement bonds thereunder and in performing all other acts under said law, are hereby legalized and validated.” (Vernon’s Ann. Civ. St. art. 835d, § 9).

For the purpose of this opinion, we shall assume that the above validating provision has effect to validate the bonds issued under the old law, if such bonds would be valid had they been issued .under the new law.

After the passage of the new law, the Attorney General again refused to approve the bonds in question here, contending that the new law is unconstitutional and void because in contravention of sections 5 and 7 of article 11 of our State Constitution. This same objection was originally made by tlie Attorney General while approval was sought under the old law, but was not passed on by us, for the reason that the matter we did pass on settled the cause as it then stood.

' The matter to be first considered is one of procedure. The Supreme Court granted permission to file petition for mandamus under the old law. The city is now seeking relief under the new law by way of a motion for rehearing. Ordinarily under such circumstances the commission would be inclined to the view that a new petition for mandamus and a new permission to file should be required; but inasmuch as the same constitutional objections to the new law were involved while the application was pending under the old law, and inasmuch as the same relief is sought under the now law that was sought under the old law, we shall proceed to determine the validity of the new law.

As above stated, the Attorney General refuses to approve the bonds in question, under the new law, and contends that the new law is unconstitutional and void as was the old law, because in violation of sections 5 and 7 of article 11 of our State Constitution. These sections read as follows:

“See. 5. Cities having more than five thousand (5000) inhabitants may, by a majority vote of the qualified voters of said city, at an election held for that purpose, adopt or amend their charters, subject to such limitations as may be prescribed by the Legislature, and providing that no charter or any ordinance passed under said charter shall contain any provision inconsistent with the •Constitution of the State, or of the general, laws enacted by the Legislature of this State; said cities may levy, assess and collect such taxes as may be authorized by law or by their charters; but no tax for any purpose shall ever be lawful for any one year, which shall exceed two and one-half per cent, of the taxable property of such city, and no debt shall ever be created by any city, unless at the same time provision be made to assess and collect annually a sufficient sum to pay the interest thereon and creating a sinking fund of at least two per cent, thereon; and providing further, that no city charter shall be altered, amended or repealed oftener than every two years.”
“Sec. 7. All counties and cities bordering on the coast of the Gulf of Mexico are hereby authorized upon a vote of t\Vo-thirds of the taxpayers therein (to be ascertained as may be provided by law), to levy and collect such tax for construction of seawalls, breakwaters or sanitary purposes, as may be authorized by law, and may create a debt for such works and issue bonds in evidence thereof. But no debt for any purpose shall ever be incurred in any manner by any city or county unless provision is made, at the time of creating the same, for levying and collecting a sufficient tax to pay the interest thereon and provide at least two per cent, as a sinking fund; and the condemnation of the right of way for the erection of such works shall be fully provided for.”

A reading of the entire act under investigation, discloses the following:

(a) By the provisions of section 2, the city, when it desires to improve its streets in such a way that a part of the costs shall be paid by the owners of benefited property, and in such a way that assessment certificate or mechanic lien agreements are authorized or required, is given the right to acquire such certificates and mechanic liens. The city is then given the right to impound such certificates and liens in the hands of the city treasurer or a trustee, and based upon such impounded certificates or liens the city may issue “special improvement bonds or certificates” in an amount not exceeding 90 per cent, of the aggregate amount of the certificates or liens impounded, such “special improvement bonds or certificates” to mature serially or otherwise within 15 years from their date. This section contains other provisions not necessary to mention here.

(b) By the provisions of section 3 of the act, the city is given the right to use any funds of the city which may lawfully be devoted to the purpose in acquiring the certificates and liens in question, and it is provided that the proceeds from the sale of the special improvement bonds may be'used to reimburse 'the city for the funds used in purchasing the certificates and liens, and the city is authorized to use the proceeds of the sale of such bonds in acquiring the certificates and liens in the first instance.

(e) By the provisions of section 4 of the act it is stipulated that the improvement bonds issued under the provisions of the act shall never be reckoned in determining charter, constitutional, or statutory limitations imposed upon such city restricting its power to issue bonds for any purpose. It is also provided in this section that the issuance of such bonds shall not constitute the incurring or creating of any indebtedness as contemplated by sections 5 and 7 of article 11 of the Constitution of Texas. This section contains other provisions not necessary to mention here.

(d) By the provisions of section 5 of the act certain duties are imposed upon the city. We deem it expedient to copy in full subdivisions (a) and (b) of such section. These subdivisions read as follows:

“(a) In event there shall not be funds on. hand, realized from the collection of said assessment certificates and interest thereon, sufficient to pay the principal and/or interest of said special improvement bonds, or any of them, as and when the principal and/or interest of said special improvement bonds matures and accrues, it shall then be the duty of such city to deposit in said pledged or impounded fund an amount sufficient to make good the .deficit, said deposit to be made out of any money then under control of the city, which may lawfully be used at that time for said purpose; and
“(b) In event such city does not in such eventuality have money on hand or under its control available for said purpose, it shall then be the duty of such city at the timé of the occurrence of the deficit to make provision for obtaining the money to make good the deficit. It shall be lawful for the city to be reimbursed to the extent of any such monies which it may have been compelled to advance under the provisions of this Section. Reimbursement may be made out of the revenues from the pledged or impounded assessment certificates, provided that no reimbursement shall ever be made unless and until moneys are on hand in the pledged or impounded fund sufficient to pay the next twelve months’ principal and interest maturing on said bonds.”

(e) Section 6 of the act provides the way and manner in which the bonds and interest coupons shall be signed and registered by the various city officers.

(f) Section 7 provides for the approval of the bonds by the Attorney General, and their registration by the comptroller.

The balance of the act relates to matters not germane to this portion of the opinion.

We think a careful reading of the above act, and especially subdivisions (a) and (b) of section 5 above quoted, will disclose that it is in direct conflict with the constitutional provisions above quoted, in that it creates a debt against the city which may run for 15 years without, at the time of the creation thereof, making provision to assess and collect annually a sufficient sum in taxes to pay such bonds at maturity.

By the plain and simple provisions, of subdivision (a), supra, it is made the absolute duty and obligation of the city to deposit in the pledged fund any deficit that may exist in any future year when the bonds or any interest payment may mature; and, by the plain and simple provisions of subdivision (b), supra, it is made the absolute duty and obligation of the city, in the event it does not have the money on hand to meet the deficit, to make provisions for obtaining the money. Certainly the effect of these provisions is to have the city absolutely guarantee the payment of these bonds, and make them a general debt against the city. The statutory provisions above quoted are just as effective to bind the city to pay these bonds, in the event the impounded fund is insufficient, or for any reason fails, as if the guaranty were directly written into the statute and into the bonds. We think the effect is therefore to create a debt against the city within the meaning of sections 5 and 7 of article 11 of our State Constitution. McNeal v. City of Waco, 89 Tex. 83, 33 S. W. 322, 324; City of Terrell v. Dessaint, 71 Tex. 770, 9 S. W. 593.

In McNeal v. Waco, supra, our Supreme Court, speaking through Judge Denman, defined “debt,” as used in the above constitutional provision, to mean: “We conclude that the word ‘debt,’ as used in the constitutional provisions above quoted, means any pecuniary obligation imposed by contract, except such as were, at the date of the contract, within the lawful and reasonable contemplation of the parties, to be satisfied out of the current revenues for the year, or out of some fund then within the immediate control of the corporation. Corpus Christi v. Woessner, 58 Tex. 465; Terrell v. Dessaint, 71 Tex. 770, 9 S. W. 593; Appeal of City of Erie, 91 Pa. 398; Prince v. City of Quincy, 105 Ill. 138 [44 Am. Rep. 785].”

In the City of Terrell v. Dessaint, supra, the facts as shown by the opinion are as follows: “This suit was brought by appellee as indorsee of a promissory note, of which the following is a copy: ‘$1,000. Two years after date, the city of Terrell promises to pay to P. H. Layne, or order, one thousand dollars, for value received, with interest at 7 per cent, from date. This note is given in payment for material for water-works supplies, and is payable out of the tax of ¼ of one per cent, collected annually for general purposes.’ It is dated May 13, 1885, and is signed by the mayor and secretary pro tern, of the city. At the time of the execution of the note the city had ‘leased or sold’ its water-works to the Texas Gas & Water Company, and the latter had control of the property for a considerable time. The management of the company not being satisfactory, it was agreed that its contract with the city should be rescinded, and that the city should resume the possession and management of the works. As a part of the contract of rescission, the city agreed to purchase of the company certain materials on hand for the extension of the works, and to pay therefor the sum of $2,000. For this sum the city issued warrants or drafts on its treasurer for about $500, and executed two promissory notes; one, that in controversy, and the other for $500, payable 12 months from date.”

The court then proceeds to define the term “debt,” as used in the Constitution, and the powers and limitations of a city in regard thereto, in the following language:

“But it is contended that the promissory note sued upon in this case is not a debt within the meaning of the provisions of the constitution which limit the power of cities to create indebtedness, and of the statutes which regulate,the manner in which such debts shall be evidenced and secured. To state appellee’s* position more specifically, it is claimed that the debt in this case was for current expenses, and, being chargeable upon the current expense fund, it does not come within the purview of the provisions of the constitution and statutes to which we have 'referred. It is held in the case previously cited (Corpus Ohristi v. Woessner, supra), that ‘the issue of-warrants on current expenses of a city, which do not exceed the current revenue derived from taxation,’ is not the creation of a debt prohibited by the constitution. We do not doubt the correctness of that ruling. We freely concede that debts for the ordinary running expenses of a city, payable within a year out of the incoming revenues of the year, and with other indebtedness not clearly in excess of the yearly income for general purposes, can be created by a city. But we think that a debt for current expenses, in order to be valid without a compliance with the constitutional and statutory requirements to which we have referred, must run concurrently with the current revenues for such purposes, and that such a debt cannot be created without such compliance, which matures at such a .time as would make it a charge upon the future revenues of the city. It may not be easy to define accurately wbat are the current expenses of a municipality. But we may ask, if a city can create a debt for $1,500 for materials to extend its water-works, and make it payable, with interest, one and two years after date, why may it not create an indebtedness for a larger sum for any public improvement which it has the power to construct, and make it payable at a longer period? It is clear to us that, if this were permitted, the provisions of our constitution and statutes, which limit the power and regulate the manner of the creation of municipal indebtedness, would be entirely nugatory.
■ “It was shown upon the trial that the city had exhausted its powers of creating debts chargeable upon funds to be raised by special taxation when the note sued on was given. It was also shown that at the time, and ever since, the current expenses proper of the city exceeded its revenues for general purposes. We state these facts, not because we -think their statement necessary to a decision of this cause, but because they serve to illustrate the doctrine we assert. If an indebtedness of this character is to be permitted to be created in this manner, of wha-t avail are the provisions of our fundamental and statutory laws, which are intended to protect out cities against the evils of a bankrupt treasury? ”

Certainly the bonds here sought to -be issued are debts, or pecuniary Obligations of the city within the above definitions.

It is contended by the city that no debt is created against the city because the obligation on the part of the city to make good any deficit in the bond fund is only a contingent one. In this connection, it is argued by the city that, since only 90 per cent, of the paving certificates and liens are issued in bonds, the event of the city having tp make good any deficit is very remote. This contention must be overruled. The effect of the law is to obligate the city to provide all-funds necessary to pay the -bonds, and this obligation is absolute and unqualified when the bonds are delivered and the money received therefor.

It is the settled law of this state that a debt created by a city, in order to be valid without compliance with the constitutional requirements to which we have referred, must run concurrently with the current revenues. City of Terrell v. Dessaint, 71 Tex. 770, 9 S. W. 593.

The city contends that under the rule announced in Dallas Electric Co. v. City of Dallas, 23 Tex. Civ. App. 323, 58 S. W. 153 (Writ Ref.), the obligation on the part of the city to make good any deficit which may occur in the fund created by the instant law does not create a debt against the city at the time the bonds are issued, but only amounts to' a contract for a future indebtedness to be incurred if there should exist a deficit in the fund during some subsequent year. We cannot sustain this contention.

In Dallas Electric Co. v. City of Dallas, supra, the Court of Civil Appeals had before it a contract between the city and the electric company, by the terms of which the electric company agreed to furnish the city, for the term of three years, a given number of lights at a stated annual rental not exceeding the amount the city was authorized to collect and appropriate for such purposes each year, and under which contract payment was to be made only on the performance of the services provided for. The Court of Civil Appeals, speaking through Judge Rainey, upheld the validity of this contract on the ground that it did not create a debt within the meaning of the constitutional provisions here under consideration, but was merely a contract to create a future indebtedness. This opinion then cites in its support the opinion of the Supreme Court of the United States in the case of City of Walla Walla v. Walla Walla Water Co., 172 U. S. 19, 19 S. Ct. 85, 43 L. Ed. 349. It must be admitted that the distinction drawn in the above case is somewhat technical and rather close, but, be this as it may, we have no intention of calling it in question.

Clearly the instant law cannot be sustained by the rule in Dallas Electric Co. v. City of Dallas, supra. The debt created by the instant law is evidenced and created by the bonds, and it undoubtedly eojnes into complete existence at the instant the bonds are issued and sold. The effect of the law is to make the bonds an absolute and binding obligation against the city, and to put the general credit of the city behind them. It is true that a fund is created out of which the bonds may possibly be paid, and it may be even admitted that the fund will probably pay such bonds, but the effect of the statute is to absolutely bind the city to pay in the event the fund, for any reason, fails. The city receives the full consideration when the contract is made, and the obligation and debt of the city is then complete. There is nothing to be received by the city in the future to be paid for when received, as in the Dallas Electric Co. Case, supra. In such a case, it cannot be said that the bonds merely evidence an obligation to create a debt in the future. The debt is already created, and nothing is to be done in the’future but provide the funds, and pay it.

It seems to be contended by the city that the provisions of section 4 of the act which, in substance, stipulated that the bonds shall not constitute the incurring or creating of an indebtedness against the city within the meaning of sections 5 and 7 of article 11, of our Constitution, render the act free from the criticism that it is in violation of such constitutional provisions. We overrule this contention. It is not within the power of the Legislature to enact a law which, in legal effect, violates the constitutional provisions under discussion, and then avoid the effect of so doing by writing into the law a statement that the law does not do that which, in legal effect, it does do. In other words, the law does actually make the bonds a general debt against the city, and a statement in the law which is absolutely antagonistic to its legal result can have 'no force.

The city contends that the statute here under consideration, and the bonds here sought to be approved, are valid and constitutional under the rule announced in City of Corpus Christi v. Woessner, 58 Tex. 462. We think that case can give no comfort to the relator here. In the Corpus Christi Case the warrants were issued in payment of debts of the city, which were legal and valid when incurred, and which debts were payable out of the revenues of the city for the current year, but the city wrongfully diverted part of its current year’s funds and left these lawful obligations unpaid. Of course this court held that the city could be compelled to pay such debt, lawful when created, out of the revenues of subsequent years, and could make a valid contract to do so.

The city contends that under the rule announced in Sowell v. Griffith (Tex. Com. App.) 294 S. W. 521, and City of Laredo v. Frishmuth (Tex. Civ. App.) 196 S. W. 190, these bonds should be approved. We think neither of these cases is authority to sustain these bonds or this law.

In Sowell v. Griffith, supra, it is shown that the contract was between the board of water commissioners of the city of Cleburne, Tex., on the one hand, and A. M. Lockett & Co., a private corporation, on the other. The action was to restrain the execution and per-formalice of a contract between such parties. In its final form, the contract amounted to an agreement between the parties, by the terms of which Lockett & Co. sold to the iboard of water commissioners certain machinery at an agreed price. The board agreed' to pay for this machinery in installments,some of which matured subsequent to the current year. No tax was levied to meet the in-: stallments falling due for subsequent years. The board pledged the net receipts of the water plant as security for the debt. Also Lock-' ett & Co. retained a lien on the machinery' which was registered as chattel mortgage/ Under the charter of the city, the manage-' ment of the water plant was placed in the' board of water commissioners and both the statute and the charter of the city provided for the pledging of the receipts and revenues of the waterworks for debts incurred for bet-terments and extensions. Also the contract in question made no attempt to bind the city, except as to the lien on the machinery purchased and the net receipts of the waterworks. This section of the commission, speaking through Judge Bishop, upheld the above contract, purely on the theory that it created no obligation or debt on the part of the city which had to be paid out of the revenues derived from taxation, but only an obligation to apply the pledged fund derived from the revenues of the waterworks. The opinion clearly holds that the contract could not create a debt against the city, other than the duty to apply the net income of the water works to the payment thereof.

In the case at bar, we have a very different condition from that in Sowell v. Griffith, because here the statute under consideration-makes the city the absolute guarantor of the instant bonds. Had the contract in Sowell v. Griffith attempted to bind the city beyond the current year for any sum owing on the contract beyond the amount the net receipts of the waterworks would pay, such contract would have been invalid without a tax levy as provided by the Constitution. The holding in the Sowell Case was correct, and meets our approval.

City of Laredo v. Frishmuth, supra, is no authority to sustain these bonds. In that case, the city of Laredo issued $75,000 in bonds by a vote of the people. The bonds were secured by a tax levy of one per cent, on the $100 valuation of taxable property in the city, and by setting apart the money arising from the sale of certain lots owned by the city, the rents and revenues arising from the city hall and market house, and the fines 'ancl forfeitures to be collected by the city. It is further shown that these securities amounted in value to several times the amount of the bonds, and that the city did actually derive such amount therefrom. In such a case, the Court of Civil Appeals upheld the contract, and the liability of the city thereon. Certainly tlie city, haying bound itself no further than the pledged fund, was legally liable to apply such funds to the purposes it had contracted to apply them to, and, having failed to do so, was liable for default in payment, of the bonds. Also in the Uaredo Case a tax was levied, which, together with the pledged funds, was more than sufficient to pay the bonds.

Finally we come to consider whether there is a tax levy to pay these bonds within the meaning of the constitutional provision under consideration. After a careful study of the act itself and the constitutional provisions under investigation, we have reached the conclusion that there is no tax, within the meaning of the constitutional provision under consideration levied to pay these bonds. In the first place, the act itself provides for impounding both paving certificates and mechanic lien agreements. In other words, the bonds issued under the statute may, according to its express provisions, be entirely based on mechanic lien agreements which do not represent, in any sense of the word, a property tax, but merely a private contract lien and obligation.

However, if the law only provided for impounding paving certificates which are only secured by paving assessments and liens created strictly under the paving laws, an assessment of costs against an abutting property owner, which assessment is a tax in a certain sense of the word, would not be a tax within the meaning of sections 5 and 7 of article 11 of our State Constitution, because the tax levy made to pay the paving assessment is by its very nature, and as a matter of law, only a tax lien and charge against each particular piece of abutting property and its owner to pay the costs assessed against that particular piece of property. 44 C. J. p. 1131, § 4064.

We quote the rule as announced in 44 C. J.:

“Except in some jurisdictions, the fact that a municipality has passed beyond its debt limit does not prevent it from contracting a debt payable expressly out of a special fund. The rule is applicable to a debt payable out of a fund derived from the income and revenue of a light or waterworks plant or other .public utility constructed or purchased by the municipality, unless in addition to the revenue, the property itself is mortgaged to secure payment of the indebtedness. A municipality may, without increasing its indebtedness within the meaning of constitutional limitations, contract an indebtedness payable out of the proceeds of a special assessment, provided, at the time of the making of the contract, no liability on the part of the city, other than to pay over the assessment when collected, is created.
“Where an assessment to pay for an improvement is made against the municipality for benefits received, the question whether the liability of the city for the amount of such assessment comes within a constitution-’ al debt limitation depends upon whether the assessment is to be paid by general taxation, including taxation of personal property, or whether the assessment is made only upon abutting real property owned by the municipality, the limitation being applicable in the former case, but not in the latter.”

We recommend that the mandamus be in all things refused.