author: FANNING, Justice.

text:
    The TRAVELERS INSURANCE COMPANY, Appellant, v. Carzie ADAMS, Appellee.
    No. 7758.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 4, 1966.
    Rehearing Denied Oct. 25, 1966.

      Cahill Hitt, Atchley, Russell, Hutchinson & Waldrop, Texarkana, for appellant.
    Franklin Jones, Jr., Jones, Jones & Baldwin, Marshall, for appellee.
   FANNING, Justice.

Appellee, Carzie Adams, brought suit against appellant insurance company, under the Workmen’s Compensation Act, to recover monies spent for surgical treatment, medicines and hospital services incident to such treatment.

Trial was to the court without a jury. The trial court filed findings of fact and conclusions of law as follows:

“FINDINGS OF FACTS AND CONCLUSIONS OF LAW
“1. On or about the 29th day of August, 1958, the Plaintiff, Carzie Adams, received a compensable injury while in the course and scope of his employment for Yates Construction Company and Yates Construction Company had Workmen’s Compensation insurance with the Defendant.
“2. That as a result of such accidental injury the Defendant paid the Plaintiff Workmen’s Compensation benefits, settled its claim with the Plaintiff, and left all future medical payments open to future determination of the accrual of benefits.
“3. That as a result of the injury of 1958, Plaintiff’s condition became critical during the first half of 1965, and further medical and surgical treatment was necessary.
“4. That Plaintiff first demanded of Defendant that it furnish him medical and surgical treatment, and that Defendant refused to do so.
“5. That after so demanding, and after having filed a claim with the Industrial Accident Board of the State of Texas for surgical benefits and medical treatment, Plaintiff’s condition, as a result of his previous compensable injury, became so grave that emergency surgery was necessary.
“6. That at all material times the Defendant refused to furnish any medical treatment of any nature whatsoever to the Plaintiff.
“7. That the Plaintiff obtained medical services and treatment at his own expense, all of which were necessary as a result of his previous injury, and that the charges for such medical and surgical treatment were in the aggregate amount of $1,318.30, and that all such charges were necessary, and the amounts charged were reasonable for the time and place where such services were rendered.
“8. That all jurisdictional prerequisites to confer jurisdiction upon this Court have been complied with by the Plaintiff.
“CONCLUSIONS OF LAW
“1. That the Defendant is liable to Plaintiff in the sum of $1318.30 under the Workmen’s Compensation Act of the State of Texas.”

Additional findings and conclusions were requested, some were given, the others were refused; they are not set out here as they do not materially affect the main findings and conclusions set out above.

It is appellant’s position under its points 1 through 4, that appellant was not legally required to provide all necessary surgical treatment, medicines and hospital services incident to the performance of such surgical treatment after the original claim for compensation (for injury received on Aug. 29, 1958) had been terminated by compromise settlement agreement made on April 20th, 1961.

This appears to be a case of first impression in Texas and we have found no authorities in point on the questions posed by appellant’s contentions under its points 1 through 4. Sections 12e and 7 of Art. 8306, and Sec. 5 of Art. 8307, are the pertinent statutes to be considered.

Sec. 12e of Art. 8306, enacted in 1917, is found below. Sec. 7 of Art. 8306, as amended in 1957, reads in part as found below. Section 5 of Art. 8307, as amended in 1957, reads as found below.

The term “medical aid” in its broad sense includes “surgical aid”. The practice of medicine includes many branches and is a broad term. It of course includes surgery. “And as used in the Medical Practice Act, the terms ‘physician’ and ‘surgeon’ are also synonymous, and the terms ‘practitioners’, ‘practitioners of medicine’, and ‘practice of medicine’ are construed to refer to and include physicians and surgeons.” 45 Tex.Jur.2d, p. 118.

In Words and Phrases, Vol. 40A, p. 468, Surgery, it is stated:

“Webster’s Dictionary describes ‘surgery’ as a branch of medical science. It cannot be denied that practical surgery is ordinarily thus spoken of. U. S. v. Massachusetts General Hospital, 100 F. 932, 938, 41 C.C.A. 114.”

In Words and Phrases, Vol. 26A, p. 616, Medical Treatment, it is stated:

“In construing a contract of a physician to furnish medical treatment, the court said: ‘It appears from the evidence that medical treatment in its enlarged sense includes surgery, and in a restricted sense, as used in medical parlance, may mean a division of the curative art exclusive of surgery.’ And the court held that the term in the contract, which was made with the officers of a county, was used in its broadest sense, and included services in surgical cases. County of Clinton v. Ramsey, 20 Ill.App. 577, 579, 20 Bradw. 577, 579.”

In Truck Insurance Exchange v. Seelbach, 161 Tex. 250, 339 S.W.2d 521, it was stated in part as follows:

“The term ‘surgery’ is not defined in the statute though technically it has a broad meaning. It does comprehend as suggested in Bellah some slight and simple procedures. It has been described as ‘that branch of medical science which treats of mechanical or operative measures for healing diseases, deformities or injuries.’ Aetna Life Ins. Co. v. Orr, 205 Ark. 566, 169 S.W.2d 651, 654; State v. Eustace, 117 Kan. 746, 233 P. 109. Yet we are constrained to the opinion that as the term is used in the statute it refers to the common ordinary understanding of that word and as the art is practiced by a skilled surgeon. We think it would not be held generally to include mechanical application of weights and traction and other remedial devices, but embrace only cutting operations. * * *
“Finally, the insurer claims that the 1957 amendments have worked far-reaching changes in the compensation law and would render the testimony admissible from the effective date of these amendments though it was not admissible theretofore. Section 7 of Art. 8306 formerly had a specific limitation of 90 days from the date of the injury for ‘medical attention, nursing or chiropractic services,’ and a specific limitation of 180 days from the date of injury for hospital services. Effective September 1, 1957, as amended, this section now reads in part as follows:
“Section 5 of Art. 8307 as amended now provides in part: * * *
“We are of the opinion that these two amendments in no way affect the question before us or operate to relax the rule. The Legislature has the power to expand the benefits of this Act in any way and to any extent that it may deem appropriate. That is what the Legislature has attempted to do by providing that even after a final award or judgment the Board has continuing jurisdiction to render successive awards against the Association for the cost of medical aid and hospital services. This may increase the carrier’s liability and as claimed by it even result in payment of compensation for total and permanent disability when that condition has been remedied at the expense of the insurer and no longer exists. But even to avoid the latter result we are not at liberty to disregard the terms of the law as it is written by the Legislature and the necessary implications therefrom.
“It is to be understood that we are not called upon here to interpret or construe these two 1957 amendments or to define the resp.eefive duties and obligations of the parties thereunder. All such questions are expressly reserved for consideration when and if they arise.” (Emphasis added.)

Should the term “medical aid” as used in Sec. 7 of Art. 8306, V.A.C.S., and in Sec. 5 of Art. 8307, V.A.C.S., be given a broad and liberal meaning so as to include “surgical aid” or should it be given a restricted meaning so as not to include cutting operations? There are of course many kinds of cutting operations, some of very minor nature and some of very serious nature, but all of them are designed for the purpose of curing or attempting to cure or heal the patient. We think some guidance on this question is furnished by the general rule that the Workmen’s Compensation Act should be liberally construed so as to effectuate the beneficent purposes for which it was enacted. Travelers Insurance Company v. Hernandez, 5 Cir., 267 F.2d 267; Texas Employers Ins. Ass’n v. Andrews, 130 Tex. 502, 110 S.W.2d 49.

After carefully considering the questions raised by appellant’s points 1 through 4, it is our best judgment that the three statutes above referred to (Art. 8306, Sec. 7, Art. 8306, Sec. 12e and Art. 8307, Sec. 5) should be harmonized and should be given a broad and liberal interpretation to effectuate the beneficent purposes for which the Texas Workmen’s Compensation Act was enacted, and it should be held that the term “medical aid” includes “surgical aid” as well, and that appellant was liable for the expenses of the operation under the record in this cause. Appellant’s points 1 through 4 are overruled.

We further hold that the trial court properly held that appellee took all reasonable steps necessary to comply with Section 12e of Art. 8306, V.A.C.S., especially in view that under the circumstances appel-lee was justified in having the surgery performed on his own volition since it was an emergency operation.

On March 31, 1965, appellee wrote the Board demanding medical and surgical benefits. In this letter a report of Dr. By-waters was enclosed indicating that surgery would materially improve appellee’s condition. Nothing was done by the Board until April 6, and the Board instead of ordering a physical examination, after acknowledging receipt of appellant’s letter and demand, stated to the effect that the Board did not have authority at that point to order surgery and suggested that appellee file a request with appellant insurance company for surgery, which request was refused by appellant. Being unable to get any affirmative action on his request to the Board and his request being denied by appellant and with appellee’s condition becoming much worse, and with the pain “running him crazy” or words to that effect, on June 14, 1965, ap-pellee had disc and back surgery on his own volition and upon the strong recommendation of his doctor. Appellee submitted the-bills incurred in the surgical treatment and other expenses incident thereto, to the Industrial Accident Board of Texas and such Board held appellant not responsible for their payment. The jurisdictional requirements for bringing this suit were followed.

It has been held that in cases of emergency, compliance with the provisions of Section 12e of Art. 8306, V.A.C.S., is not a condition precedent to the employee’s right to recover expenses of a surgical operation. Great American Indemnity Company v. Beaupre, Tex.Civ.App., 191 S.W.2d 883, wr. ref., n. r. e.; Ocean Accident & Guaranty Corp. v. Nance, Tex.Civ.App., 25 S.W.2d 665, no writ.

Appellant’s points 5 through 10 are overruled.

We further hold that there was evidence of probative force, and that the same was sufficient, to support the trial court’s findings that the original injury was a producing cause of the difficulty which necessitated the operation sued upon, and that such operation was emergency in nature. Appellant’s points 11 through 18 are overruled.

The judgment of the trial court is affirmed.

      . “Sec. 12e. In all cases where liability for compensation exists for an injury sustained by an employé in the course of his employment and a surgical operation for such injury will effect a cure of the employé or will materially and beneficially improve his condition, the association or the employé may demand that a surgical operation be had upon the employé as herein provided, and the association shall provide and pay for all necessary surgical treatment, medicines and hospital services incident to the performance of said operation, provided the same is had. In case either of said parties demands in writing to the board such operation, the board shall immediately order a medical examination of the employé in the same manner as is provided for in the section of this law relating to hernia. If it be shown by the examination, report of facts and opinions of experts, all reduced to writing and filed with the board, that such operation is advisable and will relieve the condition of the injured employé or will materially benefit him, the board shall so state in writing and upon unanimous order of said board in writing, a copy of which shall be delivered to the employé and the association, shall direct the employé at a time and place therein stated to submit himself to an operation for said injury. If the board should find that said operation is not advisable, then the employé shall continue to be compensated for his incapacity under the general provisions of this law. If the board shall unanimously find and so state in writing that said operation is advisable, it shall make its order to that effect, stating the time and place when and where such operation is to be performed, naming the physicians therein who shall perform said operation, and if the employé refuses to submit to such operation, the board may order or direct the association to suspend the whole or any part of his compensation dui-ing the time of said period of refusal. The results of such operation, the question as to whether the injured employé shall be required to submit thereto and the benefits and liabilities arising therefrom shall attach, be treated, handled and determined by the board in the same way as is provided in the case of hernia in this law. Acts 1917, p. 269.”

      . “Sec. 7. The association shall furnish such medical aid, hospital services, nursing, chiropractic services, and medicines as may reasonably he required at the time of the injury and at any time thereafter to cure and relieve from the effects naturally resulting from the injury. Such treatment shall include treatments necessary to physical rehabilitation, including proper fitting and training in the use of prosthetic appliances, for such period as the nature of the injury may require or as necessary to reasonably restore the employee to his normal level of physical capacity or as necessary to give reasonable relief from pain, but shall not include any other phase of vocational rehabilitation. The obligation of the association to provide hospital services as herein provided shall not be held to include any obligation on the part of the association to pay for medical, nursing or surgical services not ordinarily provided by hospitals as a part of their services. If the association fails to so furnish reasonable medical aid, hospital services, nursing, chiropractic services and medicines as and when needed after notice of the injury to the association or subscriber, the injured employee may provide said medical aid, nursing, hospital services, chiropractic services, and medicines at the cost and expense of the association. The employee shall not be entitled to recover any amount expended or incurred by him for said medical aid, hospital services, nursing, chiropractic services, or medicines, nor shall any person who supplied the same be entitled to recover of the association therefor, unless the association or subscriber shall have had notice of the injury and shall have refused, failed or neglected to furnish it or them within a reasonable time. At the time of the injury or immediately thereafter, if necessary, the employee shall have the right to call in any available physician, surgeon, or chiropractor to administer first-aid treatment as may be reasonably necessary at the expense of the association. * ⅜ s. As amended Acts 1957, 55th Leg., p. 1186, ch. 397, § 1.”

      . “Sec. 5. Notwithstanding any other provision of this law, as amended, no award of the Board, and no judgment of the court, having jurisdiction of a claim against the association for the cost or expense of items of medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances furnished to an employee under circumstances creating a liability therefor on the part of the association under the provisions of this law, shall include in such award or judgment any cost or expense of any such items not actually furnished to and received by the employee prior to the date of said award or judgment. The first such final award or judgment rendered on such claim shall be res judicata of the liability of the association for all such cost or expense which could have been claimed up to the date of said award or judgment and of the issue that the injury of said employee is subject to the provisions of this law with respect to such items, but shall not be res judicata of the obligation of the association to furnish or pay for any such items after the date of said award or judgment. After the first such final award or judgment, the Board shall have continuing jurisdiction in the same case to render successive awards to determine the liability of the association for tlie cost or expense of any such items actually furnished to and received by said employee not more than six (6) months prior to the date of each such successive award, until the association shall have fully discharged its obligation under this law to furnish all such medical aid, hospital services, nursing, chiropractic services, medicines or prosthetic appliances to which said employee may be entitled; provided, each such successive award of the Board shall be subject to a suit to set aside said award by a court of competent jurisdiction, in the same manner as provided in the case of other awards under this law. Paragraph added Acts 1957, 55th Leg., p. 1186, ch. 397, § 2.”


source: Caselaw Access Project

author: DIXON, Chief Justice.

license: Public Domain

text:
    Jerry DONALD et al., Relators, v. Waggoner CARR, Attorney General, et al., Respondents.
    No. 16846.
    Court of Civil Appeals of Texas. Dallas.
    July 29, 1966.

      Howard Lydick, Richardson, for rela-tors.
    Henry Wade, Dist. Atty., Robert M. Hill, Dallas, Waggoner Carr, Atty. Gen., Mary K. Wall, Asst. Atty. Gen., Austin, for respondents.
   DIXON, Chief Justice.

On July 12, 1966 Relators Jerry Donald, Stan Bynum, Bill Cherry, Suzanne Lytton and Howard Lydick filed their “First Amended Original Petition for Declaratory Judgment on Aritcle 13.09 of the Texas Election Code, V.A.C.S. and for Writs of Injunction and Mandamus.” Relator Lydick is an attorney and represents all the Relators.

The Respondents are Waggoner Carr, Attorney General of Texas; Henry Wade, District Attorney of Dallas County; Tom Ellis, County Clerk of Dallas County; and John Leedom, Chairman of the Dallas County Republican Executive Committee.

Relators’ petition sworn to by Attorney Lydick, alleges that Relators are citizens of the State of Texas and of the United States; that they are qualified voters under the laws and Constitution of the state; that they voted in the Republican Party Primary Election held on May 7, 1966; and that at that time they wrote in the titles of five offices not printed on the Primary ballot and the name of a qualified person for each office, said offices being Treasurer of Dallas County and Places Three, Nine, Thirteen and Fourteen of the Texas House of Representatives.

They further allege that the above mentioned votes were not counted by the Chairman of the Republican County Executive Committee and were not reported to the Committee because to do so would violate Article 13.09 of the Election Code, V.A. C.S.; that said statute violates their rights under Article 1, Sections 2, 3 and 19 of the Vernon’s Ann.St. Constitution of Texas and the 14th Amendment to the Constitution of the United States; that in practical effect the statute. — Article 13.09 of the Election Code — applies only to the Republican Party; and the statute is an attempt to disfranchise the Republican voters of Texas and is an attempt by the Legislature to exercise power not granted to it.

Relators say that we have original jurisdiction to hear and grant their petition by virtue of Art. 1735a and Art. 2524 — 1, Sec. 1, Vernon’s Ann.Civ.St.

Relators pray that we declare Article 13.09 of the Election Code unconstitutional; that we issue an injunction against the County Clerk of Dallas County forbidding him to destroy the ballots cast in the Republican Primary Election of May 7, 1966; that we issue injunctions against the Attorney General of Texas and the District Attorney of Dallas County forbidding them to enforce Article 13.09; and that we issue a writ of mandamus against John Leedom, Chairman of the Executive Committee ordering him to count all votes cast in the Republican Primary Election of May 7, 1966 for the five offices heretofore mentioned.

We issued temporary ex parte restraining orders as prayed, and set Relators’ petition for submission and oral argument on its merits on July 20, 1966.

In his written reply, John Leedom, County Republican Chairman, files (1) a plea to the jurisdiction; (2) a plea in abatement; (3) a plea in bar; (4) exceptions to the sufficiency of the affidavit of Relator Lydick; (5) a general denial; and (6) an answer setting up certain defenses to the issuance of a writ of mandamus. Attached to his pleading is an affidavit by Leedom as to certain facts.

The County Clerk filed an answer stating that the ballots in his possession would be held pending determination of Relators’ petition. The other Respondents filed answers in which some of the pleas of the County Chairman were duplicated. An amicus curiae brief was filed by Douglas Bergman. All of the Respondents and the amicus curiae contend that Article 13.09 of the Election Code is not unconstitutional.

We sustain the plea to the jurisdiction of Respondent Leedom for these reasons:

1. Being an appellate court we do not have authority to render declaratory judgments. It has been so held in Texas and other jurisdictions. Parr v. State, 293 S.W.2d 280 (Tex.Civ.App.); Walz v. Northcutt, 278 Ky. 616, 129 S.W.2d 124; State ex rel. Wulfing v. Mooney, 362 Mo. 1128, 247 S.W.2d 722; Bank of Yorktown v. Boland, 259 App.Div. 987, 20 N.Y.S.2d 1017, affd. 284 N.Y. 749, 31 N.E.2d 510; Dyar v. Bingham, 100 Ohio App. 304, 136 N.E.2d 444. Relators have not cited us to an instance of a declaratory judgment where the suit did not originate in a trial court.

2. Certainly if it could ever be said that this court has jurisdiction to render declaratory judgments it could be only in those cases where the material facts are established beyond dispute. As an appellate court, we have no juries or other means available to us to try disputed fact issues. It cannot be held that Art. 2524 — 1, V.A.C.S., the Uniform Declaratory Judgments Act, changed us from an appellate court to a trial court with the powers of a judge or jury to hear evidence and resolve disputed fact issues. Section 9 of Art. 2524 — 1 expressly provides that when a suit for declaratory judgment involves an issue of fact, such issue is to be determined in the same manner as issues of fact are determined in other civil actions.

In this proceeding it has not been established beyond dispute (1) that Relators are qualified voters; (2) that they voted in the Republican Primary of May 7, 1966; (3) that they wrote in the titles of offices, not printed or shown on the ballots; (4) that they wrote in the names of candidates for said offices; or (5) that the persons, whose names were written in were qualified to be candidates.

The only affidavit in behalf of Relators is that of Attorney Lydick. Since the law protects the voters and their individual votes with a mantle of secrecy, we must regard Attorney Lydick’s affidavit as to how the Relators voted as hearsay with reference to all the Relators except himself. As to the names of candidates alleged to have been written in Attorney Lydick simply asserts that Relators " * * at the time wrote in the name of a qualified person for each such office.” The quoted statement is merely a conclusion of law, even with respect to the write-in vote of Lydick himself. No facts are stated which would enable a trier of facts to make findings which would support a conclusion that the name of a “qualified person” had been written in. Anderson v. Polk et al., 117 Tex. 73, 297 S.W. 219, 224; Templeton v. Weatherly, Tex.Civ.App., 62 S.W.2d 286; McGuire v. City of Dallas et al., 151 S.W.2d 617 (Tex.Civ.App., error dism.); McMullen v. Glenn-Colusa Irr. District et al., 17 Cal.App.2d 696, 62 P.2d 1083, 1086. The record contains no evidence from the other Relators by deposition, affidavit or otherwise in regard to the material facts alleged. Now-here in the record is there mentioned the name of any of the persons whose names are alleged to have been written in.

In the County Chairman’s affidavit he swears that in the precinct where Relator Jerry Donald lives the return made by the precinct election judge does not show any write-in votes for offices not shown on the ballot.

3. It has often been held that the Uniform Declaratory Judgments Act is not intended to give jurisdiction where none exists, or to confer additional jurisdiction, but is merely a procedural device. Cowan v. Cowan, 254 S.W.2d 862 (Tex.Civ.App.); Phillips v. City of Odessa, 287 S.W.2d 518 (Tex.Civ.App.); Lam Tat Sin v. Esperdy, 2 Cir., 334 F.2d 999, cert. denied, 379 U.S. 901, 85 S.Ct. 190, 13 L.Ed.2d 176; 26 C.J.S. Declaratory Judgments § 113, page 255; 149 A.L.R. 1103.

4. As to the writ of mandamus for which Relators petition: it is true that Art. 1735a, V.A.C.S. gives jurisdiction to the Supreme Court or any Court of Civil Appeals to issue the writ of mandamus to compel various election officers to perform their duties in accordance with the laws of the state. But we hold with reference to the above statute as we did with reference to Art. 2524-1, V.A.C.S., that the statute does not change this court from an appellate court to a trial court. Under Articles 1823 and 1824, V.A.C.S., as well as Article 1735a, we have authority to issue writs of mandamus, but it is well established that we do not have such authority unless the facts are established beyond dispute. Rogers v. Lynn, 121 Tex. 467, 49 S.W.2d 709 (Tex.Com.App. opinion adopted by Supreme Court), rehearing denied, 121 Tex. 467, 51 S.W.2d 1113; Austin v. City of Alice, 193 S.W.2d 290, 293 (Tex.Civ.App., writ ref., n. r. e.); Dick et al. v. Kazen, 156 Tex. 122, 292 S.W.2d 913, 915.

If we be mistaken in holding that we do not have jurisdiction to entertain Re-lators’ petition for declaratory judgment and mandamus we nevertheless should deny their petition because we believe Respondents’ pleas in abatement must be sustained not only for the reasons stated in connection with our sustaining of the pleas to the jurisdiction, but for these additional reasons:

(1) The main purpose of a declaratory judgment is preventive in nature. It is intended as a means, unknown to the common law, for determining the rights of parties when a controversy has arisen even before any wrong has actually been committed. Cobb v. Harrington, 144 Tex. 360, 190 S.W.2d 709, 172 A.L.R. 837; Arterbury v. United States Nat’l Bank, 194 S.W.2d 803 (Tex.Civ.App., no writ hist.); Ainsworth v. Oil City Brass Works, Tex.Civ.App., 271 S.W.2d 754; Scott-Burr Stores Corp. v. Wilcox, 5 Cir., 194 F.2d 989; Dewey & Almy Chemical Co. v. American Anode, 3 Cir., 137 F.2d 68, cert. denied, 320 U.S. 761, 64 S.Ct. 70, 88 L.Ed. 454. Here Relators plead that the alleged wrong has already been committed: the County Chairman has failed to count their votes. They are not seeking to prevent an alleged wrong; for they do not ask that election officials be required to place on the official ballot for the general election in November the names of any of the candidates whose names Relators say they wrote in in the May Republican Primary. Section 6 of the Uniform Declaratory Judgments Act, Art. 2524 — 1, V.A.C.S., expressly provides that a court may refuse to enter a declaratory judgment “where such judgment * * would not terminate the uncertainty or controversy giving rise to the proceeding.”

(2) It is not the duty of the County Chairman to count the votes cast in the election except to total the returns as delivered to him by the precinct election judges. It is the duty of the latter officials to count the votes cast by the individual voters in their respective precincts, then place the ballots in a box which is delivered to the County Clerk. Articles 13.23 and 8.32, Election Code. A copy of the returns as so prepared by the precinct election judges is delivered to the chairman of the political party holding the election. Articles 13.24, 8.29 and 8.29b, Election Code. The returns and the tally lists are canvassed by the Executive Committee, and the result of the election declared by the committee. We shall not issue the writ of mandamus prayed for by Relators for to do so would be to order the County Chairman of the Republican Party to perform acts which under the law it is not his duty to perform. City of McAllen v. Daniel, 147 Tex. 62, 211 S.W.2d 944; Taliaferro v. Hale, Tex.Civ.App., 47 S.W.2d 340; 55 C.J.S. Mandamus § 64, p. 104.

(3) We think the precinct election judges whose duty it was to count the votes in the five precincts (the precincts are not designated in the petition) where Relators allege they voted are necessary parties to this proceeding. City of Beaumont v. Stephenson, Tex.Civ.App., 95 S.W.2d 1360, error dismissed; Northeast Tarrant County Water Authority v. Trinity River Authority of Texas, Tex.Civ.App., 370 S.W.2d 746, 749; 55 C.J.S. Mandamus § 252a, p. 470.

For the reasons stated we have concluded that the petition of Relators should be dismissed. It is so ordered.

Dismissed.

      . Art. 13.09, V.A.C.S., as amended in 1963, provides in part as follows: “On tlie general primary ballot, an appropriate space for a write-in candidate shall be provided under the title of each office. If for any office, * * * there is no candidate tohose name is to he printed on the general primary ballot, the title of the office shall not he printed on the ballot and no write-in vote for such office shall he counted." We have italicized the portion of the statute which Relators contend is unconstitutional.

      . The cited sections of the Texas Constitution read in part as follows:
      “Sec. 2. All political power is inherent in the people, and all free governments are founded on their authority, and instituted for their benefit.”
      “Sec. 3. All free men, when they form a social compact, have equal rights,
      “Sec. 19. No citizen of this State shall be ⅜ * ⅜ in any manner disfranchised, except by the due course of the law of the land.”
      Relators refer to that portion of the 14th Amendment, Sec. 1, of the Constitution of the United States as follows:
      “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of tlie United States; ⅜ ⅜ * nor deny to any person within its jurisdiction the equal protection of the laws.”

      .Article 1735a provides in part as follows :
      “The Supreme Court, or any Court of Civil Appeals, shall have power, or authority, or jurisdiction, to issue the Writ of Mandamus, ⅜ * * against any Chairman or member of any Executive Committee, or primary committee, or primary election officer, of any political party, to compel the performance, in accordance with the laws of this State, of any duty imposed upon them, respectively, by law”
      Article 2524 — 1, Sec. 1, V.A.C.S. provides as follows:
      “Courts of record within their respective jurisdictions shall have power to declare rights, status, and other legal relations whether or not further relief is or could be claimed. No action or proceeding shall be open to objection on the ground that a declaratory judgment or decree is prayed for. The declaration may be either affirmative or negative in form and effect; and such declarations shall have the force and effect of a final judgment or decree.”

      . In the folder or jacket containing the court papers of this proceeding there is an unattached piece of paper which is blank except for the notation at the bottom, “Exhibit A”. Pasted onto this piece of paper are five smaller pieces of paper consisting of printed forms which have been filled out as poll tax receipts con-taming the names of Relators. There is no explanation whatever accompanying “Exhibit A”. The purported tax receipts bear no attestation, certification or authentication of any kind, either by the County Clerk,' whose duty it is to issue poll tax receipts, or by any of the Re-lators. There is nothing to show that they are original receipts, or are true and correct copies of the original receipts. “Exhibit A” was delivered to the Clerk of this court several days after the submission of Relators’ petition and oral argument thereon. “Exhibit A” and the forms pasted to it are not evidence in this proceeding and cannot be accepted as such.


author: MURRAY, Chief Justice.

text:
    Ruth Walker GOLDEN et al., Appellants, v. Jim Allen YORK et al., Appellees.
    No. 14514.
    Court of Civil Appeals of Texas. San Antonio.
    Sept. 28, 1966.
    Rehearing Denied Oct. 26, 1966.

      Guilford L. Jones, Big Spring, Owen H. Ellington, El Paso, for appellants.
    Ralph William Scoggins, El Paso, Paul Worden, McKinney, and Fred J. Morton, El Paso, for appellees.
   MURRAY, Chief Justice.

This appeal calls for an interpretation and construction of § 38(a), paragraph 4, of our Probate Code, V.A.T.S., reading as follows:

“If there be none of the kindred aforesaid, then the inheritance shall be divided into two moieties, one of which shall go to the paternal and the other to the maternal kindred, in the following course: To the grandfather and grandmother in equal portions, but if only one of these be living, then the estate shall be divided into two equal parts, one of which shall go to such survivor, and the other shall go to the descendant or descendants of such deceased grandfather or grandmother. If there be no such descendants, then the whole estate shall be inherited by the surviving grandfather or grandmother. If there be no surviving grandfather or grandmother, then the whole of such es-state shall go to their descendants, and so on without end, passing in like manner to the nearest lineal ancestors and their descendants”.

Newton F. Tidwell died intestate on the 11th day of June, 1962, and was survived by neither spouse, children, father, mother, brother nor sister. The paternal grandparents were deceased, and the deceased was survived on the paternal side by 83 persons who are descendants of his great grandfather. The maternal grandparents were likewise deceased and the decedent was survived by 9 persons who are descendants of his maternal grandparents.

On July 7, 1964, an application to declare heirship was filed by the maternal kindred and proper notice given. On September 17, 1964, judgment was entered declaring the nine maternal kindred to be the heirs at law of decedent, and further providing for a partial distribution of the estate.

On December 2, 1964, an application was made for partition and final distribution of the estate to the maternal kindred, and an order was entered setting a hearing thereon. Prior to a hearing of such application, a motion to show cause was filed by Joe Tidwell, one of the paternal kindred of decedent. Thereafter, on March 26, 1965, there was filed an application to set aside the judgment of September 17, 1964. On April 9, 1965, an agreed statement of facts was filed, and there was an amended judgment bearing the same date, which was not filed of record until June 29,1965, amending the judgment of Sept. 17, 1964, requiring the estate to be divided into two moieties, with one moiety to the maternal kindred and the other to the paternal kindred. No appeal was taken from the judgment of September 17, 1964, and the latter judgment was rendered at a subsequent term of the court.

There was no dispute as to the facts. The maternal kindred were descendants of decedent’s maternal grandparents, and the paternal kindred were the descendants of his great grandfather. Appellants, who are the maternal kindred, contend they should inherit the entire estate because they are closer kin to decedent than are the appel-lees, who are another step removed from decedent. This exact question was decided in McKinney v. Abbott, 49 Tex. 371, in an opinion written by Chief Justice O. M. Roberts, “The Old Alcalde.” This case has never been overruled or modified by the Supreme Court.

The trial court properly divided the estate into two equal moieties and gave one to the maternal kindred and one to the paternal kindred, even though they were a degree further removed from decedent than were the maternal kindred.

Appellants contend that the judgment of September 17, 1964, had become final and could not be set aside or amended at a subsequent term of the court. We do not agree. Section 31 of the Probate Code provides as follows:

“Any person interested may, by a bill of review filed in the court in which the probate proceedings were had, have any decision, order, or judgment rendered by the court, or by the judge thereof, revised and corrected on showing error therein; but no process or action under such decision, order or judgment shall be stayed except by writ of injunction, and no bill of review shall be filed after two years have elapsed from the date of such decision, order, or judgment. Persons non compos mentis and minors shall have two years after the removal of their respective disabilities within which to apply for a bill of review.”

The pleadings filed by appellees were sufficient to constitute a bill of review as provided for in Sec. 31, although they were called something else. Schoenhals v. Schoenhals, Tex.Civ.App., 366 S.W.2d 594. The appellants did not except to the pleadings and proceeded to stipulate to all the facts upon which the matter was heard. They are not now in a position to complain of the pleadings. Scott v. Slaughter, 97 Tex. 244, 77 S.W. 949.

The judgment of the trial court is affirmed.


author: PRESLAR, Justice.

text:
    Garnet P. FRANCIS, Jr., Appellant, v. Anna Goldlustova FRANCIS, Appellee.
    No. 5771.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 28, 1966.
    Rehearing Denied Oct. 19, 1966.

      Doyle H. Gaither, El Paso, for appellant.
    Gerald B. Shifrin, El Paso, for appellee.
   OPINION

PRESLAR, Justice.

Appellant filed this suit seeking to set aside a portion of a property settlement agreement, incorporated into a divorce decree, on the grounds that it was alimony and thus against public policy and void. We are of the opinion that the provision in question is in the nature of alimony.

Appellant and appellee were married in 1954 and divorced in 1959. The appellee wife obtained the divorce on her cross-action and was awarded the care, custody and control of the child of the marriage, and support and maintenance for the child in the amount of $150.00 per month. The appellant husband is a dentist and a Colonel in the United States Army Dental Corps. The parties entered into an agreement which provides in part:

“ * * * and both parties there to being desirous of settling their community property rights in the event that a divorce is granted to either party, it is agreed by and between the parties hereto that they shall divide same as follows, no other agreement withstanding or to the contrary, this being the final and only agreement of the parties.
I.
“That in consideration of Cross-Plaintiff, Anna Goldlustova Francis’ relin-guishing any and all right, title and interest in and to the property of Cross-Defendant, Garnet P. Francis, Jr., the said Anna Goldlustova Francis is to have as her sole and separate property the sum of Fifteen Thousand Dollars ($15,-000.00) payable by Cross-Defendant, Garnet P. Francis, Jr., as follows: Seven Thousand Five Hundred Dollars ($7,-500.00) of said sum to be paid to the Cross-Plaintiff, Anna Goldlustova Francis as hereinafter set out regardless of her future marital status, and the balance of said Fifteen Thousand Dollars to be paid as hereinafter set out only if the said Cross-Plaintiff, Anna Goldlustova Francis remains single and unmarried, said total sum of Fifteen Thousand Dollars ($15,000.00) to be due and payable from Cross-Defendant, Garnet P. Francis, Jr., to Cross-Plaintiff, Anna Gold-lustova Francis, as follows: In monthly installments of Fifty Dollars ($50.00) per month each, first installment of which is due and payable on or before the 5th day of May, 1959, and like installments due and payable on or before the same date of each and every month thereafter until January 5, 1960, at which time said monthly installments shall increase to the sum of One Hundred ($100.00) Dollars per month each, and said sum of One Hundred Dollars ($100.-00) per month shall be due and payable on the 5th day of each and every month after the said 5th day of January, 1960, until the entire sum is fully and finally paid, said amount and indebtedness to be evidenced by one certain promissory note which is to be interest-free, containing the above terms.”

The first $7,500.00 had been paid at the times the appellant husband brought this suit, seeking declaratory judgment that the $7,500.00 to be paid in the event that the wife remain unmarried is an agreement to pay alimony and is contrary to the law of the State of Texas and is void. From a judgment upholding the validity of the agreement and the judgment into which it was incorporated, the husband brings this appeal.

An award of permanent alimony is against public policy of this State and is void. McBride v. McBride, Tex.Civ.App., 256 S.W.2d 250; McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722; Lodge v. Lodge, Tex.Civ.App., 368 S.W.2d 40. The question here is whether the conditional $7,500.00 is in the nature of alimony, or whether it has some connection with and is referable to any property either spouse may have owned. Was this an award of alimony, or was it a division of the property of the marriage?

Before passing to the question posed, we should like to first dispose of appellee’s contention that the agreement is a “contract” and should be construed under the laws relating to contracts. We are of the opinion that the agreement was merged in the judgment, is the judgment of the court, and should be so construed. The court was required to divide the estate of the parties, and either it was done by its approval of this instrument, or it was not done. Article 4638 of Vernon’s Ann.Tex. Stats, provides:

“The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate.”

In passing on this article, the Supreme Court said:

“Our community property system naturally affects our plan of property division upon a marriage dissolution. Under our laws, permanent alimony is not recognized, nor is a Texas court authorized to divest either spouse of his or her title to separate property, Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299, but the wife, in the main, must look to the community property for her share of the material gains incident to an ill-starred marriage.” (McElreath v. McElreath, supra.)

In the judgment of divorce in the case at bar, the only reference to the properties of the parties is the recitation:

“It further appearing to the Court that the parties hereto have arrived at a community property settlement agreement which the Court has examined and finds to be fair and reasonable and just, the Court hereby ORDERS it APPROVED and filed herewith.”

Then, in its final declaratory judgment, from which this appeal is taken, the court said that the community property settlement agreement “was carried forward into the Final Judgment of this Court in cause No. 90029 and entered on May 5, 1959, and is a valid and subsisting Judgment.” That statement is repeated in the Court’s Conclusions of Law, and indicates that the trial court made the contract its judgment. The right of the parties to enter into enforceable contracts is recognized, but in a divorce suit they cannot ask the court to substitute such contract for its statutory duty without its becoming a judgment. The parties cannot avoid the command of the statute that the court “shall also decree and order a division of the estate of the parties”, except that their agreement be treated as stipulations in lieu of other proof. Thus, we consider the present arrangement as a judgment based on stipulations, to be construed by the laws relating to judgments. Under the authorities noted above, it was a judgment which the court was without power to enter if it decreed alimony.

In calling on the court to divide their estate in such a way as the court shall deem just and right, the parties did not list or set out any properties, but simply provided that the wife relinquished any and all right, title and interest in and to the property of the husband and, in return, was to have the note payable by him. In the present action, evidence was presented as to what the estate of the parties consisted, and the court found that at the time of the divorce they owned “miscellaneous personalty, including Two Thousand Five Hundred ($2,500.00) Dollars cash, furniture, crystal and china”; and the court found that the husband, as an Army lieutenant colonel during the four and one-half years of the marriage “did earn and become entitled to retirement benefits from the Retirement Pay Act of the United States Army and that this was community property of the parties at the time of the divorce.” These findings are challenged by the appellant on the grounds that there is no evidence to support them or, in the alternative, insufficient evidence. In passing on the “no evidence” points, we consider only that evidence favorable to the finding, and in passing on the “insufficient evidence” points, all of the evidence both pro and con is weighed. The evidence is clear that there was a bank account of some $2,500.00 at the time of the divorce. It is not so clear that they owned furniture, crystal and china, for the wife testified as to such in general terms, but could recall no specific items acquired during the time of marriage, while the husband was positive that all was acquired by him prior to marriage. There is some evidence to sustain this finding, and it cannot be said that the finding is against the great weight and preponderance of the evidence so as to require a reversal and remand. There is no evidence to sustain the finding as to accrued retirement benefits from the “Retirement Pay Act of the United States Army” and that this was community property of the parties. There is no evidence to explain what the “Retirement Pay Act of the United States Army” is, nor how its operates; whether it consists of a fund; who, if anyone, contributes; what or how much. In fact, there is no mention of any “Act” by name. The only evidence is the following by the husband:

“Q And during the time you were married to Anna Francis, did you acquire retirement benefits for those years ?
A Would you explain this, what you mean by ‘retirement benefits’. In the regular army you are supposed to put in thirty years, I mean this is the contract you have with the government, and you do have retirement at the end of that thirty year period.
Q All right, did you get credit for the time from 1954 through 1959 on your retirement ?
A This is over all of my thirty years service, yes sir.
Q And that credit you did receive during the time you were married to this lady ?
A Yes sir.”

This is all of the evidence on this matter and, to our minds, it shows no vested right or property which could be a part of the estate of the parties within the meaning of Article 4638, and as same is defined by the Supreme Court in the late case of Herring v. Blakeley, Tex., 385 S.W.2d 843 (Jan. 1965).

Under the judgment of the court, then, the wife received the $15,000.00 — $7,-500.00 absolutely, and $7,500.00 if she did not remarry. The husband received the $2,-500.00 bank account and some furniture and china. Since the statute says that the court should take into consideration the rights of the children in dividing the estate of the parties, it should be noted that, in addition to the child support payments of $150.00 per month, it was provided that the husband would keep in effect a $10,000.00 life insurance policy with the child of the marriage as beneficiary. We are constrained to hold that the $7,500.00 to be paid in the event that the wife did not remarry is alimony. From the record before us, it is obvious that such sum is to be paid monthly from the future earnings of the husband and, as said in the McBride case, supra, “it had no connection with, is not payable from and is not referable to any property which either spouse may have owned or claimed”.

The judgment of the trial court is reversed, and judgment here rendered that that portion of the judgment of divorce in cause No. 90029, entered on May 5, 1959, which provides that Garnet P. Francis shall pay Anna Goldlustova Francis $7,500.00 in the event she shall remain single and unmarried, is void and unenforceable.


author: CLAYTON, Justice.

text:
    Clay KITCHENS, Ind. & as Independent Executor et al., Appellants, v. Peggy Viola KITCHENS et al., Appellees.
    No. 5801.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 21, 1966.
    Rehearing Denied Oct. 19, 1966.
    M. C. Blackburn, Junction, Lavern D. Harris, Kenneth L. Clark, Kerrville, for appellants.
    Stovall & Gibbs, San Angelo, Cayton & Gresham, Lamesa, for appellees.
   OPINION

CLAYTON, Justice.

Suit for Partition. John P. Kitchens died on February 24, 1952, intestate, and no administration has been had on his estate. His wife, Inez Kitchens, died October 31, 1960, and her son, Clay Kitchens, is the Independent Executor of her estate, having been named in her will. She had two other children — Lynette Wallace and Ray Kitchens, the latter having died on November 14, 1959, leaving a will devising his interest, if any, in the lands involved in this suit to his wife and naming her, Peggy Viola Kitchens, Independent Executrix of his estate, and administration of his estate has been completed. Their only child is Patricia Anne Bunyard.

On April 5, 1923 one August Dunlop obtained a judgment in the amount of $865.-00 against John P. Kitchens on which judgment no abstract of judgment or execution was ever obtained, and the judgment was paid off and released in 1941.

One Gus Noyes died on January 13, 1923, and in his will he devised all the real property in Gaines County, Texas which he owned to eighteen different persons, including John P. Kitchens, all eighteen of whom, in turn, joined by the widow and daughter of Gus Noyes, conveyed said real estate to E. L. Noyes as Trustee, in order to effect a partition of said real estate under the terms of the will. The share to which John P. Kitchens was entitled under the Noyes will was 482 acres of said property. In an attempt to place part of said real estate beyond the reach of the judgment creditor, August Dunlop, John P. Kitchens and his wife, Inez Kitchens, caused these 482 acres to be conveyed by E. L. Noyes in the amount of 200 acres to John P. Kitchens, and 282 acres to Inez Kitchens. No consideration was given to the grantor for any of the conveyances above mentioned. Inez Kitchens then bequeathed all of the land and property in Gaines County, Texas, to which she had any claim, title or interest, one-third to Clay Kitchens, one-third to Lynette Wallace, and one-third to Patricia Bunyard.

It was agreed by the parties to this suit, in which Peggy Viola Kitchens and her assignees, W. J. Beckham and M. G. Riggan, are plaintiffs (appellees here), and Clay Kitchens, individually and as Independent Executor of the Estate of Inez Kitchens, Patricia Anne Bunyard and her husband, Mike Bunyard, and Lynette Wallace and her husband, J. P. Wallace, are defendants (appellants here), that there is no controversy as to the undivided one-third interest in the property in question which is owned by Clay Kitchens or as to the undivided one-third interest therein owned by Lynette Wallace or her assignees, Beckham and Riggan. The only controversy involved in the suit is as to the ownership of the remaining undivided one-third interest in said property, as to whether this one-third interest is owned by plaintiff Peggy Viola Kitchens or by defendant, Patricia Anne Bunyard. The property in question is the 482 acres to which John P. Kitchens was entitled as his share of the estate of Gus Noyes.

In a trial before the court without a jury, the court held that the 200 acres which John P. Kitchens retained out of the 482 acres was the separate property of John P. Kitchens and was presently owned by W. J. Beckham, M. G. Riggan and Clay Kitchens, in shares of two-thirds to Beck-ham and Riggan, share and share alike, and one-third to Clay Kitchens. The court further held that the 282 acres conveyed to Inez Kitchens was the community property of John P. and Inez Kitchens, and was presently owned by Beckham, Riggan, Clay Kitchens and Patricia Anne Bunyard in shares of one-half to Beckham and Riggan, share and share alike, one-third to Clay Kitchens and one-sixth to Patricia Anne Bunyard. From such judgment this appeal was taken.

Appellants have three points of error: First, that the court erred in determining that the 282 acres of land conveyed to Inez Kitchens was the community property of John P. and Inez Kitchens; second, that this property was the separate property of Inez Kitchens, and the court erred in not so finding; and third and last, that the court erred in holding that plaintiff and her assignees own any interest in the 282 acres conveyed to Inez Kitchens. The case was tried on the stipulations and their accompanying exhibits.

As to the first point of error, we are of the opinion that the trial court did not err in determining that the 282 acres conveyed to Inez Kitchens was the community property of John P. and Inez Kitchens. The deeds to the 282 acres conveyed to Inez Kitchens were conveyed during the marriage of John P. and Inez, and recited that they were conveyed “to Inez Kitchens, her heirs and assigns” and contained no language tending to show that this property was purchased with the separate funds of the wife, since under the stipulations there was no consideration paid for the transfer, or to show that the property was conveyed to Inez as her separate property. In the Supreme Court case of Brick & Tile v. Parker, 143 Tex. 383, 186 S.W.2d 66, 67 (1945), it is held:

“Since the property was acquired during the marriage of F. K. Parker and wife, it was presumably their community property, and this presumption prevails even though the deed was taken in the name of the wife, in the absence of language in the deed tending to show that it was purchased with the separate funds of the wife, or that it was conveyed to her as her separate property. Stiles v. Japhet, 84 Tex. 91, 19 S.W. 450; Ross v. Martin, 104 Tex. 558, 140 S.W. 432, 141 S.W. 518; Cooke v. Bremond, 27 Tex. 457, 86 Am.Dec. 626; Speer, Law of Marital Rights, 3rd Ed., § 352, p. 428; Connor v. Boyd, Tex.Civ.App., 176 S.W.2d 212.”

See also Lockhart v. Garner, 165 Tex. 580, 298 S.W.2d 108, 110 (1957), which recites :

“ * * * Our conclusion to consider the 50-acre tract as community property is based on the fact that the tract was conveyed to Mrs. Davis during coverture and is presumed to be community property. There being no recital in the deed or evidence to the contrary, the presumption is conclusive that the land involved is community property.”

In a suit related to this suit, but involving different land, Kitchens v. Kitchens, 372 S.W.2d 249, 255, 256 (Tex.Civ.App., 1963; err. ref.) the Court of Civil Appeals holds:

“Having been acquired during the marriage of John P. and Inez Kitchens, ‘presumptively it was community property, even though’ the deed to Inez ‘was drawn in her name, there being no language in the deed disclosing that the consideration was paid from her separate funds or that the property was conveyed to her as her separate estate.’ Magee v. Young, 145 Tex. 485, 198 S.W.2d 883, 884; Brick & Tile v. Parker, 143 Tex. 383, 186 S.W.2d 66, 67; Van v. Webb, 147 Tex. 299, 215 S.W.2d 151, 152; Art. 4619, Sec. 1, Vernon’s Ann.Tex.Stats.”
* * * * * *
“The burden of proof on the issue is upon the party claiming the property was the wife’s separate estate. John Hancock Mut. Life Ins. Co. v. Bennett, 133 Tex. 450, 128 S.W.2d 791, 795; Wilson v. Wilson, 145 Tex. 607, 201 S.W.2d 226, 227; Presidio Min. Co. v. Bullis, 68 Tex. 581, 4 S.W. 860, 862 (partition); and cases cited, 30 Tex.Jur.2d 181, p. 283, 284.”

This burden was not met by appellants. See also Duncan v. Duncan, 374 S.W.2d 800, 802 (Tex.Civ.App., 1964; n. w. h.); Magee v. Young, 145 Tex. 485, 198 S.W.2d 883, 884, 885 (1947).

Such a construction, as community property, may derive some support from the language of the will of Inez Kitchens which, in a limitation clause, speaks of “my undivided one-half interest in 42 acres of land in Gaines County, Texas,” from which the inference may be drawn that at least with reference to the 282 acres, part of the 482 acres involved, Mrs. Kitchens regarded the deed to her as part of the community property, rather than her separate estate, and thus negatives any donative intent to make it her separate property by gift. In Belkin v. Ray, 142 Tex. 71, 176 S.W.2d 162, 165, 166 (1943), Ray Marks and her husband, Harry Marks, conveyed property to one H. H. Ray for a recited consideration of $10.00, which was not paid. Thereafter, H. H. Ray and wife conveyed the property to Harry Marks and wife, Ray Marks, for a recited consideration of $10.00, which was not paid. The Supreme Court held:

“It is not necessary for us to here determine whether the deed from Ray Marks and husband, Harry Marks, to H. H. Ray and the deed from H. H. Ray and wife to Harry Marks and wife, Ray Marks, did or could have the effect of making the property the community property of Harry Marks and wife in a technical sense, for if they could not have that effect they at least operated to convey the property to Marks and wife jointly so that each owned an undivided one-half interest therein. Riley v. Wilson, 86 Tex. 240, 24 S.W. 394; Kellett v. Trice, 95 Tex. 160, 66 S.W. 51; Taylor v. Hollingsworth, 142 Tex. 158, 176 S.W.2d 733. In this particular instance the property passed to the devisees named in the will in the same manner, whether it was the community property of the husband and wife or was merely owned jointly by them.”

We are constrained to overrule appellants’ first point of error and to affirm the finding of the trial court that the 282 acres of land conveyed to Inez Kitchens was community property. It follows that appellants’ second point, that the land was the separate property of Inez Kitchens, must also be overruled.

The third point of error charges the court with error in holding that the plaintiff, Peggy Viola Kitchens, and her assignees, Beckham and Riggan, own any interest in the 282 acres conveyed to Inez Kitchens. Since it has been determined that these 282 acres are community property, only one-half thereof went to Inez Kitchens, of which she devised one-third each to her children — her daughter, Lynette Wallace (who assigned her interest to Beckham and Riggan), and her son, Clay Kitchens; and one-third to her granddaughter, Patricia Anne Bunyard. Thus, neither Peggy Viola Kitchens nor her assignees, Beckham and Riggan, received any part of the community interest of Inez Kitchens in the 282 acres conveyed to her. But it is seen that Peggy Viola Kitchens did receive a part of the 282 acres, and Beckham and Riggan received her part thereof by assignment from her, since she received by inheritance through her husband his one-third interest in his father’s one-half interest in the community 282 acres, or one-sixth of the 282 acres. It is necessary, therefore, to overrule appellant’s third point of error.

Our calculations reflect that of the 482 acres, the total land involved herein, in view of the stipulations agreed to by the parties, John P. Kitchens retained as his separate property the 200 acres deeded to him, and one-half of the community realty, or 141 acres, a total of 341 acres. After the death of Inez Kitchens, ending her life estate in one-third of John P. Kitchens’ realty, these 341 acres descended one-third (or 113.66 acres) each to Peggy Viola Kitchens, as widow and sole devisee of Ray Kitchens, which went by assignment to Beckham and Riggan; one-third to Lynette Wallace, which also went by assignment to Beckham and Riggan; and one-third to Clay Kitchens. The one-half share of Inez Kitchens in the community realty, or 141 acres, was devised in equal parts to Clay Kitchens, Lynette Wallace and Patricia Anne Bunyard, or 47 acres each, with the share of Lynette Wallace going by assignment to Beckham and Riggan.

The appellees herein persuasively argue in a cross-point that the 282 acres of land conveyed to Inez Kitchens remained the separate property of John P. Kitchens as having been acquired by him during cover-ture by inheritance, and that there was no donative intent on his part in having the name of Inez Kitchens inserted in the deeds as grantee. The appellees contend:

“The stipulations on file in the present case and upon which the case was tried, show that both John P. Kitchens and Inez Kitchens caused the deeds in question to be made to Inez Kitchens in an attempt to defraud creditors and thus as a sham transaction in which title would not actually pass to the wife. No showing was made that the parties intended title to actually pass to the wife. When both the husband and wife are moving parties to the transaction, with its accompanying intent, the intent is given effect and the property does not pass to the wife as her separate estate— it remains the separate property of the husband, if that was its original nature.”

However, we have found no authority to support this contention, and feel that the cases cited by appellees do not in fact support this precise question. The existing law appears, rather, to support the position as set out above: that these 282 acres became community property of John P. and Inez Kitchens. This cross-point of ap-pellees is overruled.

We believe, however, that the fractional interests of the parties as set out in the judgment vary from those found in this opinion, and this cause is accordingly remanded for revision of fractional interests of the parties in accordance with our findings.

Reversed and remanded with instructions.


text:
    J. L. FORD, Appellant, v. TOWN OF COPPELL, Texas, et al., Appellees.
    No. 16762.
    Court of Civil Appeals of Texas. Dallas.
    July 22, 1966.
    Rehearing Denied Oct. 7, 1966.
    Eades & Eades and Eric Eades, Dallas, for appellant.
    Saner, Jack, Sallinger & Nichols and Lawrence W. Jackson, Dallas, for appellees.
   DIXON, Chief Justice.

Appellant J. L. Ford filed suit against the Town of Coppell, Texas, its Mayor and Councilmen, seeking a judgment declaring invalid the acts of the Town in taking over and abolishing the Dallas County Coppell Fresh Water Supply District No. 17, which was entirely encompassed by the Town. Appellant also asks for an injunction to restrain the expenditure of funds made pursuant to said alleged illegal acts.

Both sides filed motions for summary judgment. The motion of appellant was overruled. That of appellees was sustained.

The Water Supply District was formed on February 17, 1955.

The Town of Coppell was incorporated under Chapter 11 of the general laws of the State of Texas on November 18, 1955. This chapter provides for the creation of “Towns and Villages”.

The Town by its Ordinance No. 11 adopted Art. 1182c-l, Vernon’s Ann. Civ. St. on April 24, 1964 so as to authorize the Town to take over the Water District.

The Town on May 5, 1964 by its Ordinance No. 12 fixed the date it would take over and abolish the Water District.

The Town physically took over the facilities of the Water District on May 6, 1964. It took over the funds on hand of the Water District on June 1, 1964.

The Town on March 1, 1965 pursuant to Art. 961, V.A.C.S. passed its Ordinance No. 21 adopting the provisions of Chapters 1 through 10, Title 28, V.A.C.S., thereby changing its status from that of a town or village to that of a city or town, with greater powers.

Appellant concedes that there are no material issues of fact in the case. In his first point on appeal he says that the court erred in denying appellant’s motion for summary judgment and in granting appellees’ motion because Art. 1182c-l, V.A.C.S. was not applicable to the Town of Coppell at the time the ordinances were passed, hence the Town did not have power to take over and abolish the Water District.

Under this point appellant argues (1) that Art. 1182c-l was not applicable to the Town of Coppell when Ordinances Nos. 11 and 12 were passed, for the Town was incorporated and was then operating only as a town or village under Chapter 11, Title 28, V.A.C.S. and Art. 1182c-l was and is applicable only to cities and towns incorporated and operating under Chapters 1 through 10, Title 28, V.A.C.S.; and further, (2) Art. 1182c-l is unconstitutional.

Art. 1182c-l, V.A.C.S. contains the following provisions:

“Section 1. This Act shall apply to all incorporated cities and towns, including Home Rule Cities, and those operating under general laws or special charters
“Sec. 2. * * * The governing body of such city shall, by ordinance, designate the date upon which the city shall take over, shall assume all debts, and such district shall be abolished, and said date shall be in no event later than ninety (90) days after the effective date of such annexation; provided, that if the city fails to adopt such ordinance, the city shall automatically take over and assume such debts and the district shall be abolished ninety (90) days after the effective date of such annexation(Emphasis ours.)

We see no merit in appellant’s first point. The Town of Coppell was and is a town operating under the general laws. Art. 1182c-l, V.A.C.S. by its express terms is made applicable to all towns including those operating under the general laws. Though Art. 1182c-l is to be found in Chapter 13, not in Chapter 11, of Title 28, its express language makes it applicable to all towns operating under the general laws, without respect to the chapter under which it is to be found. Mallow v. State ex rel. City of Denton, Tex.Civ.App., 374 S.W.2d 732, 736 (ref.n.r.e.); see also Trueman O’Quinn’s historical comment, page XXVII, Vol. 2A, V.A.C.S.

Appellant also argues that Art. 1182c-l was never intended to apply to a Chapter 11 town or village because such a town or village has no power to issue any kind of bond and only the limited power to levy a tax of one-fourth of one per cent per $100 valuation.

Attached to appellees’ motion for summary judgment is an affidavit by the Town’s City Secretary showing the budget and the expenditures of the Town of Cop-pell for the years 1964 and 1965. The Town maintains two separate funds. One is a general fund. The other is a fund to defray the expenses of the water supply system. The money from the latter fund is expended only for said system. The Town has no bonded indebtedness except that assumed in taking over the Water District. All payments due on Water District bonds and all expenses of operation of the water system have been met as they became due. The tax rate was and is 25 cents per $100 valuation. The Town was not exceeding its permissible tax rate under Chapter 11, Title 28, V.A.C.S.

Moreover, we know of no reason why possible increases, if any, in the expenses of the water supply system could not be met, if necessary, by increasing the water service charges to users without looking to the ad valorem taxes to meet such possible increased expenses.

When Chapter 11 was first enacted by the Legislature more than one hundred years ago the powers of municipalities created thereunder were very limited indeed. But in the meantime the Legislature has passed many laws enlarging the powers of the various classes of cities and towns. Consequently some of the cases decided prior to these later enactments, though doubtless decided correctly at the time, are not decisive of the powers of cities and towns under existing present statutes. For example, appellant cites and quotes from the opinion of our Supreme Court in City of Waxahachie v. Brown, 67 Tex. 519, 4 S.W. 207, decided in 1887. The statute here under consideration, Art. 1182c-1, V.A.C.S., was not enacted by the Legislature until 1947 and has been amended five times since its enactment. Obviously the above cited case should not control our decision here.

Appellant contends that Art. 1182c-l is unconstitutional since it does not provide the property owners of the Town a hearing on the question of the benefits and burdens created by the taking over of the Water District. In support of his contention appellant cites the Supreme Court holdings in State ex rel. Merriam v. Ball, 116 Tex. 527, 296 S.W. 1085 and Browning v. Hooper, 269 U.S. 396, 46 S.Ct. 141, 70 L.Ed. 330.

The holdings in the above cited cases do not support appellant’s position. They are to the effect that statutes are unconstitutional which leave the question of the boundaries of a water district up to the few persons who signed the petition for the creation of the district. Thus the petitioners would be allowed to determine the spread or area of the district. However, in both cases the courts said that where the burden is spread by the Legislature or a municipality the owners of the property over which the burden is spread have no constitutional right to be heard on the question of benefits. The language of Art. 1182c-l, being mandatory, is in effect a spreading of the burden by the Legislature.

The constitutionality of the statute has been expressly upheld in Dallas County Water Control & Imp. District No. 3 v. City of Dallas, 149 Tex. 362, 233 S.W.2d 291, 294. Though the attack there was based on other grounds than are presented here the Supreme Court concluded its opinion with the broad statement, “In our opinion, both of the statutes attacked by the appellants are constitutional.”

Appellant’s first point is overruled.

In his second point appellant asserts that the Town’s subsequent adoption on March 1, 1965 of the provisions of Chapters 1 through 10, Title 28, V.A.C.S. could not cure its prior illegal act of May 5, 1964 in undertaking to take over and abolish the Water District when the Town was still operating under Chapter 11, Title 28, V.A.C.S.

Appellees answer appellant by pointing out that in their motion for summary judgment they do not claim that the Town’s subsequent adoption of Chapters 1 through 10, Title 28 cured a prior illegal act of the Town. What they did and do claim is that the subsequent adoption pursuant to Art. 961, V.A.C.S. of the provisions of Chapters 1 through 10, Title 28, V.A.C.S. unquestionably brought into play the provisions of Art. 1182c-l, V.A.C.S. which automatically by operation of law abolished the Water District and required the Town to take it over, therefore the question at issue has become moot.

We agree with appellees. The portion of Art. 1182c-l heretofore quoted includes a provision that if a city fails to adopt an ordinance taking over a water district the city shall automatically take over the district within ninety days. The Town on March 1, 1965 became a city or town under Chapters 1 through 10, Title 28, V.A.C.S. The fact is not disputed. As such its powers were considerably enlarged. Whatever may have been said before it cannot now be said that Art. 1182c-l, V.A. C.S. is not applicable. We do not hold that the article should be given a retroactive effect. We simply hold that if it be said that the Town did not take over and abolish the Water District by ordinance on May 5, 1964, it did take over and abolish the Water District by virtue of the automatic provision of the statute ninety days after March 1, 1965 when it adopted the provisions of Chapters 1 through 10, of Title 28, V.A.C.S. Appellant’s second point on appeal is overruled.

The judgment of the trial court is affirmed.

Affirmed.

      . Art. 961, Chapter 1, Title 28, V.A.C.S. provides that any city, town or village containing 600 inhabitants or over may accept the provisions of Title 28 relating to cities and towns; and shall thereafter be “vested with all the rights, powers, privileges and immunities and franchises therein conferred.” (Emphasis ours.) The validity of the adoption of said provisions by the Town of Coppell is not attacked by appellant.