source: Caselaw Access Project

author: GRIFFIN, Justice. STEAKLEY, Justice

license: Public Domain

text:
    GIBRALTAR SAVINGS & LOAN ASSOCIATION, Petitioner, v. J. M. FALKNER, Banking Commissioner of Texas et al., Respondents.
    No. A-9218.
    Supreme Court of Texas.
    July 24, 1963.
    Rehearing Denied Nov. 6, 1963.
    Monteith, Baring & Monteith, Houston, Graves, Dougherty, Gee & Hearon, Austin, for petitioner.

      Waggoner Carr, Atty. Gen., Austin, Dudley D. McCalla, Bob E. Shannon and Coleman Gay, III, Asst. Attys. Gen., Fulbright, Crooker, Freeman, Bates & Jaworski, Houston, Gibson Gayle, Jr., Houston, with above firm, Clark, Thomas, Harris, Denius & Winters, Austin, James H. Keahey, Austin, with above firm, for respondents.
   GRIFFIN, Justice.

Petitioner, hereinafter referred to as Gibraltar, on February 12, 1958, filed with respondent J. M. Falkner, the Banking Commissioner for the State of Texas, an application to establish a branch office in the proposed Smith-Hofheinz Shopping City in the northwesterly part of Houston, Texas.

Upon request by the Building & Loan Supervisor that the application be supported by an appropriate resolution from its board of directors, Gibraltar submitted a resolution covering its request for establishing a branch “in the proposed Smith-Hofheinz Shopping City or in the vicinity of an area bounded by Westheimer (Street), Sage Road, San Felipe (Avenue) and Post Oak (Road) * * Accompanying this resolution was a letter from Gibraltar’s Executive offices, stating that until completion of the Smith-Hofheinz Shopping City, Gibraltar had made arrangements for office space across the street south and in Lamar Terrace Shopping Center, and enclosed a proposal from the owners of the property, verifying this lease.

After notice to all interested parties, the Commissioner heard those for and against Gibraltar’s proposal. On July 29th, some two or more months after the hearing, the Commissioner refused Gibraltar’s request for the branch office. He notified Gibraltar by sending them the following letter:

“The application is for a branch in an undeveloped shopping center, which would indicate that the volume of business that could be developed would be insufficient to render the operation profitable and, further, there appears to be facilities available to the public within a distance of approximately two (2) miles. We regret that the application does not in our opinion merit favorable action.”

Gibraltar then filed suit in a district court of Travis County to set aside this order of denial. The trial court held that the Commissioner’s denial was not supported by substantial evidence and was invalid, and set aside the order of refusal.

The Commissioner, and other respondents opposing Gibraltar’s application, appealed to the Court of Civil Appeals, and that court reinstated the order and reversed the trial court and held the refusal was reasonably supported by substantial evidence. 359 S.W.2d 56.

This appeal is governed by the substantial evidence rule. First: the order of the Commission is presumed to be a legal and valid order. Second: the burden is on the one appealing from the Commissioner’s order to show that the order appealed from is not reasonably supported by substantial evidence, existing at the time of the entry of the order by the Commissioner. This showing must be made at the trial court hearing. This may be done by a showing that all of the evidence available to the Commissioner, and given in the trial court on appeal, so conclusively demands an affirmative finding on all requirements that a negative finding on any requirement can have no support in substantial evidence; therefore negative findings are arbitrary. Board of Firemen’s Relief & Retirement Fund, Trustees v. Marks (1951), 150 Tex. 433, 242 S.W.2d 181(3), 27 A.L.R.2d 965; Alamo Express, Inc. v. Union City Transfer (1958), 158 Tex. 234, 309 S.W.2d 815 (6); Hawkins v. Texas Company (1948), 146 Tex. 511, 209 S.W.2d 338; Jones v. Marsh (1947), 148 Tex. 362, 224 S.W.2d 198; Thomas et al. v. Stanolind Oil & Gas Co. et al. (1946), 145 Tex. 270, 198 S.W.2d 420; Railroad Commission v. Shell Oil Co. (1942), 139 Tex. 66, 161 S.W.2d 1022; Phillips v. Brazosport Savings & Loan Ass’n. (Sup.Ct.1962), 366 S.W.2d 929; Tex. Emp. Comm. v. Hays (Sup.Ct.1962), 360 S.W.2d 525(2); Neill v. Cook (Tex.Civ.App.1963), 365 S.W.2d 824 (13-15) n. r. e.; 1 Tex.Jur.2d p. 687-8, Sec. 148; 73 C.J.S., Public Administrative Bodies and Procedure §§ 205 and 206, p. 556 et seq., 2 Am.Jur.2nd pp. 649-652, Sections 748-750. This proposition of law has become well settled by many other Supreme Court and Court of Civil Appeals decisions, too numerous to list here.

Acting under its legal powers, the Building and Loan Section of the Finance Commission and the Banking Commission promulgated rules governing the issuance of permits to Building and Loan Associations to establish branch offices.

Sec. 3.3 is a part of those rules, and that section as pertains to this cause reads as follows:

“3.3. No application to establish and maintain an additional office shall be approved unless the Commissioner shall affirmatively find from the evidence before him that:
“(a) * * *
“(b) * * *
“(c) The functions and facilities proposed are adequate to serve the public convenience and advantage in the neighborhood proposed to be served and the volume of business there is such as to indicate that a profitable operation is possible;
“(d) The proposed operation will not unduly injure any other association operating in the area of the proposed location ;
«(e) * * *
«(f) * * *» (Emphasis supplied).

It was stipulated by all parties to the proceeding that Gibraltar’s evidence fully met the requirements of subsections (a), (b), (e) and (f) of the above rule. This discharged Gibraltar’s burden as to these requirements, and we will not discuss them further.

This leaves only (c) and (d) requirements of Rule 3.3 upon which Gibraltar must discharge its burden by showing that the Commissioner’s finding, set forth in his letter refusing the permit, is not reasonably supported by substantial evidence.

It is apparent from the terms of the order of denial that the Commissioner construed petitioner’s application as seeking approval for an additional office to be located in an undeveloped shopping center; and that the adverse finding that petitioner could not develop a sufficient volume of business to render the additional office profitable,, rested, in turn, upon the fact that the shopping center had not developed at the time the Commissioner acted. In our view, the proper construction of petitioner’s original application as supplemented at the request of the Building and Loan Supervisor, and as represented to the Commissioner at the hearing, is that the application sought approval of an office to serve an area in which the proposed Smith-Hofheinz Shopping City would be located. It was petitioner’s proposal to locate in the Shopping City if and when it became a reality, but the application was not contingent upon the establishment of the Shopping City.

The action of the Commission in denying the application is not to be tested solely by the facts pertaining to the projected Smith-Hofheinz Shopping City. Approval of an additional office is not required on the basis alone of the potential of a proposed shopping center. At the most, the prospective additional potential of a proposed shopping center is one of the facts to be weighed by the Commissioner in arriving at his decision. Respondent urges application of the rationale of Railroad Commission v. Southwestern Greyhound Lines, Inc. (1941), 138 Tex. 124, 157 S.W.2d 354. The decision is not in point. This court in the Greyhound case denied the power of the Railroad Commission to grant a certificate of public convenience and necessity to operate a bus line over a projected but nonexistent state highway. The holding was that a proposed highway must have materialized sufficiently for the Commission to know its characteristics before the Commission would have jurisdiction to grant the certificate.

The testimony of the witnesses related both to a two-mile radius of the proposed location in the vicinity of the proposed Smith-Hofheinz Shopping City and to a trade area generally extending four miles east and west. Petitioner’s witnesses testified that Buffalo Bayou and Memorial Drive are a recognized north barrier to the trade area, and Alief Road and the T. & N. O. (S.A.A.P.) Railway limited the trade area to the south. Witnesses offered by the intervenor, San Jacinto, testified that there was a total of 28,500 people residing in the trade area in 1958, with 15,600 living east of Post Oak Road, and 12,900 living west of Post Oak Road, and that 24,000 people lived within a two-mile radius of the proposed branch office location. An exhibit offered by these witnesses lists forty-five subdivisions in the trade area in various stages of completion. It was also their testimony that a current study established that the average value of one hundred and five dwellings sold east of Post Oak Road was $30,180.45; and that the average value of one hundred and twenty-eight dwellings sold west of Post Oak Road was $24,897.83. The average annual incomes were estimated to be $15,000.00 in the eastern half and $12,400.00 in the western half. The office of San Jacinto which opened in March, 1957, had total accounts of $700,-000.00 on June 30, 1958.

Testimony offered by petitioner included evidence that the 1950 population of the area of 14,700 had increased to 44,400 in 1958; that in 1950 the new electrical connections made in the area were at the rate of 382 annually which in 1958 had increased to 909 annually; that the 1950 building permits equaled 4 million dollars which had increased in 1958 to a level of 14.6 million dollars annually. It was further shown that the average family income in the area in 1955 was $10,600.00 which had increased in 1958 to an average of $11,900.00. This income level would produce an income of 144 million dollars annually, of which 26 million dollars would represent savings favorable for investment. The savings and loan industry could expect to receive 11.9 million dollars in new savings deposits annually if the Houston associations received a percentage equal to the national average.

It was further shown that the petitioner had 600 savings accounts within a two-mile radius of the proposed location and a total of 1,844 accounts representing 6.7 million dollars in savings, in the trade area. There was an additional potential of 11.9 million dollars annually in new savings in the trade area.

Witnesses offered by petitioner also testified in detail concerning the exceptional growth of the Houston metropolitan area in terms of population, labor force, building permits, value of residential and nonresidential completions, loans and disposable income. For example, there was an increase in the population of Houston of 42 per cent from 1950 to 1958, representing an increase of over 42,000 people annually; the projected population for 1970 is one million eight hundred thousand; and the residential completions increased from 143 million dollars in 1950 to 172 million dollars in 1958.

With respect to the savings and loan industry in Houston, witnesses for petitioner testified that the volume of loans in Houston increased from 300 million dollars in 1956 to 476 million dollars ini 1958; that the assets of Houston associations increased from 40.6 million dollars in 1951 to 172.3 million dollars in 1958; that the savings deposits in the Houston associations increased from 118.7 million dollars to 172.3 million dollars in the two years from 1956 to 1958; that in 1951 there were available for savings in Houston a cumulative 25 million dollars which increased to 495 million dollars in 1958, of which latter amount only 172 million dollars have been deposited in Houston savings and loan associations.

It was stipulated that petitioner was organized in 1921 and has been continuously engaged in business since its organization; that petitioner has adequate reserve and surplus to warrant the additional branch office; that petitioner’s financial statement of June 30, 1958, showed assets of $61,244,226.16 balanced by liabilities which included members’ share accounts of $53,928,729.50, permanent capital of $540,-000.00, specific reserves of $210,245.05, and general reserves and surplus of $3,129,841.-65.

The two witnesses who testified in support of the respondent Commissioner were the vice president of the intervenor, San Jacinto, and a qualified real estate broker and appraiser. We have previously referred to a portion of their testimony. Other portions of their testimony are excerpted in some detail in the opinion of the Court of Civil Appeals. 359 S.W.2d 56, 59-61. The evidence offered by San Ja-cinto’s vice president was principally in support of the position of his association as an intervenor, and of his view that petitioner’s proposed branch office would injure the branch office of his association operating in the area. The evidence offered by the real estate broker consisted principally of his views concerning the competitive effect of the Smith-Hofheinz Shopping City upon other shopping centers in the area in the event the Shopping City were completed. This witness also supported the views of the vice president of San Jacinto that Post Oak Road and the railroad approximately paralleling each other north and south, and located between the Highland Village Center and the area in which petitioner’s branch office would be located, did not constitute a vehicular or shoppers’ barrier to east and west traffic. The general effect of this testimony was that petitioner’s proposed office would draw accounts from the residents of the area east of Post Oak Road and within the four-mile radius to the east.

It is also to be noted that the extent of the testimony of the Commissioner upon the trial of this case was that petitioner’s proposed office would be “competitive” with the office of San Jacinto; he did not testify that in his opinion the proposed office would unduly injure San Jacinto.

On the record before us we hold the evidence of a possibly profitable operation of the branch office applied for and of no undue injury to another association operating in the area is so conclusive that a finding to the contrary would be arbitrary. Since a negative finding to any of the requirements of Rule 3.3 would be arbitrary, it follows that the order denying the application has no support in substantial evidence.

We hold that in orders hereafter published in such matters the Commissioner should make affirmative or negative findings on each requirement set out in the adopted rules. This would give greater clarity to the decisions of the Commissioner and enable one whose application has been rejected to apprehend what his burden will be on appeal.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

STEAKLEY, Justice

(concurring).

The following opinion (omitting the review of the evidence) was written for the Court but did not become the majority view except in the result. This concurring opinion is filed for the purpose of recording the views of the writer, and of Associate Justices NORVELL and GREENHILL who join in the opinion. The majority is unwilling in this case to imply findings favorable to petitioner in respects not found adversely by the Commissioner and to limit the burden of proof of petitioner on appeal under the substantial evidence rule to that of establishing that the order of denial was arbitrary in the respects found adversely. It is our view that the rigidities with which the substantial evidence rule has been surrounded should be relaxed when appropriate, and that this is a proper case' in which to do so.

Petitioner, Gibraltar Savings and Loan Association, on February 12, 1958, filed application with respondent, J. M. Falkner, the Banking Commissioner of Texas, for authority to establish a branch office. The original application specified the proposed location as being “in the proposed Smith-Hofheinz Shopping City, located in the vicinity of Westheimer and Sage Roads, Houston, Texas.” Under date of February 11, the Building and Loan Supervisor acknowledged receipt of the application of petitioner and requested that the application be supported in certain respects, including “copy of resolution of your Board of Directors authorizing application for branch” and “specific location of proposed branch.” In compliance therewith petitioner under date of March 27 furnished a copy of the resolution of its Board of Directors reading as follows:

“WHEREAS, Gibraltar Savings and Loan Association desires to open an additional office in the proposed Smith-Hofheinz Shopping City or in the vicinity of an area bounded by West-heimer, Sage Road, San Felipe and Post Oak to provide greater service and convenience for approximately six hundred of our savers located within a two-mile radius of this area; * *

The complying letter described the specific location as follows:

“The specific location of the proposed new office will be in the immediate vicinity of Post Oak, Westheimer, Sage and San Felipe Roads. There are presently several shopping centers in this area and two additional to the Smith-Hofheinz Shopping City are in the construction stage. One is the Sakowitz Center, estimated at a cost of Six Million Dollars. We propose to locate in the Smith-Hofheinz Shopping City, which will be one of the largest if not the largest in the United States. It will be located on a 110-acre tract at a cost of One Hundred Million Dollars. We are presently negotiating for a lease in: the center’s mall area which will be 1600 feet long, completely covered and air conditioned. The total space available for leasing in the shopping center will be one million square feet.”

Hearing was held on the application on June 12, 1958. Petitioner’s chief executive officer stated to the Commissioner that petitioner proposed to occupy temporary quarters in the Lamar Terrace Shopping Center located across the street from the proposed Smith-Hofheinz Shopping City; this statement was, in turn, supported by a rental proposal in writing by the owner of the space to be rented by petitioner. The Commissioner upon the trial of the case testified that it was his view that the establishment of a branch office in the area proposed to be served was within the “content” of the original application. He further stated that his requirements were met if the “general plan” was followed.

Under date of July 29, respondent Commissioner denied petitioner’s application. The denial letter dated July 29, 1958, read as follows:

“The application is for a branch in an undeveloped shopping center, which would indicate that the volume of business that could be developed would be insufficient to render the operation profitable and, further, there appear.? to be facilities available to the public within a distance of approximately two (2) miles. We regret that the application does not in our opinion merit favorable action.”

Petitioner then filed suit to set aside the order of denial. The trial court held that the order was not reasonably supported by substantial evidence and was invalid. The Court of Civil Appeals held that there was substantial evidence to support the order of denial and reversed the judgment of the trial court, and rendered judgment for respondent. 359 S.W.2d 56.

The statement of the respondent Commissioner in his denial order that “there appears to be facilities available to the public within a distance of approximately two (2) miles,” refers to a branch office of San Jacinto Savings and Loan Association located in the area of the Highland Village Center. San Jacinto was a protestant at the hearing before the Commissioner and is an intervenor in support of the order of denial in this suit. The status of its branch office should be noted. On December 28, 1956, San Jacinto filed application with the Commissioner for a branch office which it opened on March 15, 1957, prior to action on its application. On April 1, 1957, the Commissioner denied the application and San Jacinto filed suit to set aside the denial order. It continued to operate its branch office in question. The suit of San Jacinto had not come to trial when the petitioner’s application in the instant case was heard by the respondent Commissioner on June 12, 1958, or when he denied petitioner’s application.

Article 881a-2, Vernon’s Annotated Texas Civil Statutes, provides that before granting a certificate to a proposed building and loan association the Commissioner shall ascertain “ * * * whether the public convenience and advantage will be promoted by allowing such proposed building and loan association to he incorporated and engaged in business, and whether the population in the neighborhood of such place and in the surrounding country affords a reasonable promise of adequate support for the proposed building and loan association.”

In interpreting Article 881a-2, this Court held in Southwestern Savings and Loan Association of Houston v. Falkner, 160 Tex. 417, 331 S.W.2d 917, that “ * * * the same basic standards are set for the approval or disapproval of applications to open branch offices as are set for the granting of an application for a charter in the first instance. The statutory standards of public convenience and advantage, and adequate population to assure reasonable support, are sufficient statutory basis for the rules and regulations.”

The rules and regulations referred to in the above opinion by this Court are those promulgated by the Building and Loan Section of the Finance Commission and the Banking Commissioner, governing the granting of charters to building and loan associations and the establishment of additional offices. Rule 3.3, relating to the approval of an additional office application, provides as follows:

“3.3 No application to establish and maintain an additional office shall he approved unless the Commissioner shall affirmatively find from the evidence before him that:
“(a) The applying association has adequate reserves and surplus to warrant the additional place of business;
“(b) The applying association has successfully operated its principal office for at least three (3) years prior to such application and the proposed operation will not impair the applying association’s ability to carry on its overall operations;
“(c) The functions and facilities proposed are adequate to serve the public convenience and advantage in the neighborhood proposed to be served and the volume of business there is such as to indicate that a profitable operation is possible;
“(d) The proposed operation will not unduly injure any other association operating in the area of the proposed location;
“(e) A separately enclosed office area will be provided within which no activity or business except that which is related to the affairs or services of the association will be conducted, provided that such enclosure may be by counters or ceiling of less than ceiling height; and
“(f) The proposed location of the additional office is within the same county as the home office of the applying association except in cases where it appears that the proposed additional office is in a neighboring or adjacent county to that in which the home office of the applying association is located and that there is no other association, either State or Federal, adequately serving the neighborhood in which such additional office is to be located.”

Rule 3.3 was promulgated to establish standards to govern the establishment of additional offices by existing associations. It requires the Commissioner to affirmatively find compliance with each requirement as prerequisite to approval of an application for an additional office. It will be implied that the Commissioner found that the application met the requirements of Rule 3.3 in respects not expressly found adversely to the application, and we will accord the recognized presumption of validity of acts of administrative agencies to these implied findings. The presumption of validity will persist in the appeal of the parties adversely affected by the Commissioner’s order, subject to the right of parties interested in sustaining the order of denial to assume the burden of establishing that the implied findings favorable to the application were arbitrary, that is, that they lack reasonable support in substantial evidence.

Here, the parties stipulated that petitioner’s application complied with Rule 3.3 except as to the requirements of Rule 3.3 (c) and (d). The adverse finding of the Commissioner in his order of denial was in terms of Rule 3.3(c). Thus the burden on appeal of petitioner, seeking as it was to set aside the order of denial, was one of establishing that the order of denial in terms of Rule 3.3(c) was arbitrary as lacking reasonable support in substantial evidence, and that a favorable affirmative finding was required.

Rule 3.3 is a reasonable exercise of the statutory duties of the Finance Commission and the Banking Commissioner. The requirements of the rule for the establishment of an additional office by an existing association comports with Article 881a-2 and with our decision in Southwestern. The implied findings of compliance with Rule 3.3 in respects not found adversely are consistent with the spirit and purpose of Article 881a-3 which requires the Commissioner to endorse “the reasons for such refusal” when he denies the application of a proposed building and loan association. Rule 3.3 as we construe it makes possible a proper limitation of the issues in an appeal from an order of the Commissioner disapproving an application for an additional office. The courts should not be concerned with a requirement of Rule 3.3 which the Commissioner has not found adversely to an applicant. The elimination of issues about which there is no real controversy is consistent with progressive judicial processes.

Under the evidence reviewed in the majority opinion, we would hold that petitioner discharged its burden of establishing that the evidence required an affirmative finding by the Commissioner that the volume of business in the neighborhood of its proposed branch office was “such as to indicate that a profitable operation is possible.” The only reasonable conclusion from the record as a whole is that the prospective profitability of petitioner’s branch office was established as a probability of substantial certainty. The order of denial in terms of Rule 3.3(c) was therefore shown to be arbitrary.

We would also hold that the implied findings favorable to petitioner’s application in terms of Rule 3.3(d), that is, that petitioner’s proposed additional office would not unduly injure any other association operating in the area of the proposed location, was not shown to be without reasonable support in substantial evidence.


author: STEAKLEY, Justice. SMITH, Justice.

text:
    Robert S. CALVERT, Comptroller of Public Accounts of Texas, et al., Petitioners, v. CANTEEN COMPANY et al., Respondents.
    No. A-9547.
    Supreme Court of Texas.
    Oct. 2, 1963.
    Rehearing Denied Nov. 6, 1963.
    Waggoner Carr, Atty. Gen., H. Grady Chandler, W. E. Allen, Asst. Attys. Gen., Austin, 'for petitioners.
    Heath & Davis, Austin, for respondents.
   STEAKLEY, Justice.

Respondents, Canteen Company et al., are in the business of selling tangible personal property at retail from mechanical vending machines. They sell through the machines separate items with a sales price of twenty-four cents or less. The items consist generally of candy, chewing gum, coffee, and soft drinks. The Comptroller of Public Accounts, the principal petitioner, required respondents to pay a two per ■cent tax on the total receipts from their sales. Respondents did so under protest and fded claims for refund. The refunds were disallowed and respondents brought this suit as a class action. The judgment of the trial court ordering the refunds was affirmed by the Court of Civil Appeals, with one Justice dissenting. Calvert v. Canteen Company, 365 S.W.2d 662. We reverse the judgments of the courts below and render judgment for petitioners.

The tax statute is Article 20.01 et seq., Vernon’s Annotated Texas Statutes, Tax-•Gen., V.A.T.S., known as the Limited .Sales, Excise and Use Tax Act, Acts 57th Leg., 1st C.S., 1961, Ch. 24, p. 71. The pertinent provisions of the statute are as follows:

“Art. 20.02. Imposition of Limited Sales Tax.
“There is hereby imposed upon each separate sale at retail of tangible personal property made within this State a limited sales tax at the rate of two per cent (2%) of the sale price of each item or article of tangible personal property when sold at retail in this State.”

Article 20.01(L) (1): “‘Sales Price’ •means the total amount for which tangible personal property is sold, valued in money, whether paid in money or otherwise,” ■(with deductions not relevant here).

Article 20.02(A): “Method of Collection and Rate of Limited Sales Tax. The tax hereby imposed shall be collected by the retailer from the consumer.
“(1) The tax shall be as follows and shall be collected by using the following bracket system formula on each retail sale:
Amount Tax
$ .01 to $ .24 No Tax
.25 to .74 $ .01
.75 to 1.24 .02
1.25 to 1.74 .03
1.75 to 2.24 .04
Provided, further, that for each additional fifty cents (50‡) of purchase, or fraction thereof, one cent (l<f) limited sales tax shall be collected thereon.”
* * * * * ⅜
“Art. 20.05. Return and Payments * * *
“(B) Method Retailer is to Use in Computing Tax. The limited sales tax levied under Article 20.02 hereof shall be computed and paid to the Comptroller on the basis of two percent (2%) of all receipts from the total sales of such tangible personal property sold by such retailer under said Article.”

Article 20.01(D) (1): “ ‘Receipts’ means the total amount of the sale or lease or rental price, as the case may be, of the retail sales of retailers, valued in money, whether received in money or otherwise,” (without enumerated deductions not relevant here).

Respondents concede that they do not come within the specific exemptions otherwise authorized by Article 20.04. Their contention is that Article 20.02(A) is “the tax imposition article, the tax levying article, the rate of tax article, the tax collection article, and designates the subject matter of the tax.” Crucial to respondents’ position is their insistence, predicated on the bracket formula of Article 20.02(A), that no tax is imposed on any transaction from one cent to twenty-four cents. They argue that the burden of paying the tax is solely on the consumer; that the statute contemplates that the retailer will collect from the consumer the tax of two per cent of all receipts from total sales which Article 20.05(B) requires the retailer to pay to the Comptroller; and that if no part of the tax is collected from the consumer there is no tax.

Respondents rely principally on the case of Winslow-Spacarb, Inc. v. Evatt, 144 Ohio St. 471, 59 N.E.2d 924. The Ohio statute, Gen.C. 5546-2 provided that “If the price is less than nine cents, no tax shall be imposed.” The Supreme Court of Ohio held that taxpayers operating devices selling a single five cent drink were not subject to the tax as clearly provided by the statute. Respondents urge that the same construction should be given to the bracket formula of Article 20.02(A) in its provision that no tax shall be collected by the retailer from the consumer on retail sales from one cent to twenty-four cents. They recognize that that which is taxed by Article 20.02 is “the incident, event or transaction of retail sales of tangible personal property.”

We construe Article 20.02 as levying a two per cent limited sales tax— a transaction tax — on retail sales, with the tax to be collected in accordance with the rates enumerated in the bracket system formula of Article 20.02(A). The tax is to be collected by the retailer from the consumer in each separate retail sale at the rates and to the extent authorized by the bracket system formula. The retailer pays the whole tax if his sales do not permit collection of any- portion of the tax from the consumer, such as respondents here. The retailer pays a portion of the tax if his sales are preponderantly in certain brackets, e. g., fifty-one cents to seventy-four cents; the retailer collects more than the tax from the consumer if his sales are preponderantly in other brackets, e. g., twenty-five cents to forty-nine cents. It is only upon sales of fifty cents and multiples thereof that the tax paid by the consumer is the same as that collected by the retailer and paid to the Comptroller. The bracket system was utilized by the Legislature for collection purposes in contemplation of the fact that it is impossible for the retailer to add exactly two per cent to the sales price of every article sold. The law of averages was invoked to balance the impact of the tax upon retailer and consumer, and to permit the retailer to collect the tax from the consumer to the extent possible under the limitations of the bracket system. White v. Washington, 49 Wash.2d 716, 306 P.2d 230. Cf. Smoky Mountain Canteen Company v. Kizer, 193 Tenn. 598, 247 S.W.2d 69. Stevens Enterprises, Inc. v. State Commission of Revenue and Taxation, 179 Kan. 696, 298 P.2d 326; W. S. Libbey Co. v. Johnson, 148 Me. 410, 94 A.2d 907; Piedmont Canteen Service, Inc. v. Johnson, 256 N.C. 155, 123 S.E.2d 582.

As an alternative counter point, respondents urge that the tax as we have applied it to them is contrary to Sections 1 and 2 of Article VIII of the Texas Constitution, Vernon’s Ann.St., and to the Fourteenth Amendment to the Federal Constitution. The argument is that they are required to pay the debts of another, i. e., the tax is upon the consumer, whose debt it is, but respondents are required to pay it. Further, that they are subject to discrimination in favor of those retailers making sales of twenty-five cents or more who may recoup the tax from the consumers in whole or in part; and, finally, that this results in a system of taxation which is not equal and uniform.

Respondents are not required to pay the taxes of someone else. The tax is upon the transaction and is collectible from the consumer only at the rates, and incident to sales, as specified in the bracket formula. The effect and result are alike upon retailers of the same class and engaged in the same type of business. Respondents are required to absorb the tax only because they have elected to sell items at a retail price less than the price provided for collectibility from the consumer. There is no more discrimination against respondents selling items of twenty-four cents or less than there would be against a retailer selling items between fifty-one cents and seventy-four cents where a portion of the tax would have to be paid by the retailer. It would be impossible for the Legislature to levy a tax of this type that would operate exactly alike upon all, and the consequences are inherent in the taxing system adopted by the Legislature in a proper exercise of its powers. See White v. Washington, and Smoky Mountain Canteen Company v. Kizer, supra.

The judgments of the trial court and of the Court of Civil Appeals are reversed, and judgment is here rendered that respondents take nothing.

SMITH and GREENHILL, JJ., dissenting.

SMITH, Justice.

I respectfully dissent. The Court has failed to follow the basic rules governing the construction of statutes in holding that the retailer is liable for the tax. The Court bases such holding on its construction of Article 20.05(B) only, rather than giving effect to all of the language of the statute. The Court has, in effect, stricken from the Act the clear and precise language of Article 20.02(A) which provides that the tax is to be paid by and collected from the consumer, and that there “shall be” no tax and no tax “shall be collected” on retail sales of property costing one cent (1‡) to twenty-four (24‡).

The construction adopted by the Court fails to take into consideration the fact that Article 20.02(A) deals with imposition of the tax, levying of the tax, rate of the tax, collection of the tax, and subject matter of the tax, while Article 20.05(B) relates merely to the tax return and payment to the State of the tax required by Article 20.02(A). However, whether the two Articles deal with the same subject matter or not, Article 20.02(A) should be recognized as the controlling statute on the imposition, rate, levy, collection and subject matter of the sales tax. Admitting for the sake of argument that the general provisions of Article 20.05(B) are in conflict with the special provisions of Article 20.02 (A) dealing with the same subject, then the former would be controlled or limited by the latter.

It is my position, however, that the two statutes under consideration do not relate to the same subject matter. Thus construed, there is no conflict or inconsistency between the two Articles. They merely supplement one another and necessarily must be read together. Article 20.05(B), under the heading “Return and Payments,” uses the general language of “two per cent (2%) of all receipts from the total sales of such” property. On the other hand, Article 20.02(A) under the heading “Method of Collection and Rate of Tax,” uses the specific language as to rate of tax and collection of tax that “there shall be” “no tax and no tax” “shall be collected” on sales of one cent (1^) to twenty-four (24‡), and further that “[t]he tax hereby imposed shall be collected * * * from the consumer” Emphasis added.

The construction urged by the Comptroller, if adopted, necessarily causes a conflict in the statute. Such construction renders the statute inconsistent and ambiguous. The Court, in following the contention of the Comptroller, ignores the cardinal rule that a proper construction of a tax statute requires that any ambiguity, inconsistency or conflict in the statute must be strictly construed against the Comptroller and resolved in favor of the involved taxpayer. Texas Unemployment Compensation Commission v. Bass, 137 Tex. 1, 151 S.W.2d 567 (1941).

The question before this court does not involve an exemption from taxation. If it did, then the rules of liberal construction in favor of the taxing authority and strict construction against the one claiming the exemption would be applicable.

In the present case, the question is whether or not Canteen Company et al. come within the statutory provisions imposing the tax. In the Bass case [Carpenter v. Bass], supra, where the same question was involved, the Court of Civil Appeals, 142 S.W.2d 406, said:

“In such case, contrary to the rule relating to exemptions the applicable rule of construction is that the statute should be construed strictly against the taxing authority, and liberally in favor of one sought to1 be held liable for the tax. (Citing authorities)
“Under the operation of that rule if there be any ambiguity in the meaning of the word ‘controls’ as used in said (taxing statute) it is to be construed most strictly against the tax liability asserted, and, therefore, of course, most liberally in favor of non liability.”

The Sales Tax Act was passed originally by the 57th Legislature. That same Legislature, at its Third Called Session, passed a resolution requesting the Comptroller to rescind his order requiring all retailers collecting the tax to remit the tax to the Comptroller on the basis of two per cent (2%) of their total gross receipts from all sales of taxable tangible personal property. The resolution stated that as a matter of public policy it was the specific intent of the Legislature in enacting the:

“Limited Sales, Excise and Use Tar to exclude from the computation oi gross receipts from the sales of taxable personal property, those gross receipts, derived from the sale of any taxable item or article of tangible personal property having a value of twenty-four cents (24(⅜) or less; and * * * that the Comptroller of Public Accounts be requested to rescind his present interpretation of the * * * (Act) * * * which is in conflict with this declaration of public policy and that a new interpretation in accord with this declaration be issued. * * ⅜»

The courts are not necessarily compelled to accept such declarations of intentions, however, interpretations and constructions-placed on statutes by the same Legislature that passed the original statute are entitled to be given some weight by the courts. See First National Bank of Port Arthur v. City of Port Arthur, Tex.Civ.App. 35 S.W.2d 258 (1931).

The specific language of the Texas Sales Tax Act imposed a tax upon the incident or the transaction of a sale at retail of tangible personal property, and clearly provided that the tax imposed shall be collected by the retailer from the consumer. Therefore, it is not surprising that the Legislature advised the Comptroller through the above resolution that he was-in error in attempting to require the seller (retailer) to pay a sales.tax on his total gross sales in spite of the fact that the Texas Sales Tax Act clearly, precisely and unmistakably does not levy a tax on retail sales of one cent (1^) to twenty-four cents (24$S).

The law of averages theory adopted by the Court simply cannot be used to change the clear language of the statute. The-bracket-system formula can only be invoked to balance the impact of a tax that has been imposed. The case of Winslow-Spacarb, Inc. v. Evatt, 144 Ohio St. 471, 59 N.E.2d 924 (1955), had under consideration a taxing statute very similar tO' the Texas statute under consideration. In-that case, the Supreme Court of Ohio said r

“If Section 5546-12a were to be applied to such a vendor who collects no tax from the consumer, the vendor would be paying three per cent (3%) on his gross retail sales entirely out of his own pocket, while other vendors in' the same vicinity selling similar or other commodities, some of their sales being taxable and others not, would have the privilege and advantage of deducting ‘the amount of tax paid to the state by means of cancelling prepaid tax receipts,’ for which expenditure they have been reimbursed by the consumer, thus placing them in a more favored position and in some instances, at least, causing them to pay little or nothing. The result would be unfair discrimination among vendors, in violation of the equal protection clauses of Section 2, Article I of the Constitution of Ohio and the 14th Amendment to the Constitution of the United States.”

I can see no material distinction between the Ohio statute and the Texas statute. The Ohio statute, Gen.C. § 5546-2, provides that no tax should be collected on retail sales “[i]f the price is less than nine cents (90)” and the Texas statute provides that “there shall be” no tax and that no tax “shall be collected” on retail sales of twenty-four cents (24⅜⅝) and less.

Our court has failed to distinguish the nature or incidence of the Texas tax, which is a transaction tax upon the event of a retail sale, from a privilege, license or gross receipts tax levied upon the privilege of making retail sales. The Court’s failure to make the distinction is demonstrated in its reliance upon cases from other jurisdictions which are not in point. The case of Smoky Mountain Canteen Co. v. Kizer, 193 Tenn. 598, 247 S.W.2d 69, involved a statute which required a tax for the exercise of the privilege of engaging in the business of selling tangible personal property at retail in the state. The Act further provided that the tax was to be computed on gross sales for the purpose of remitting the amount of tax due to the state, and was to include each and every retail sale. In construing the statute, the Supreme Court of Tennessee said:

“The Tennessee Sales Tax is a levy upon the vendor. It is a tax upon the privilege of selling at retail, leasing or renting tangible personal property. The doing of any of these acts is declared to be a taxable privilege and the Sales Tax Act levies a tax thereon, the measure of which is on the gross proceeds derived by the retailer from’ the sale at retail, * * (Emphasis added)

Other cases upon which the Court relies are Piedmont Canteen Service, Inc. v. Johnson, 256 N.C. 155, 123 S.E.2d 582, and Stevens Enterprises, Inc. v. State Commission of Revenue and Taxation, 179 Kan. 696, 298 P.2d 326. The North Carolina and the Kansas statutes, like the Tennessee-statute, are each different from the Texas statute. These statutes clearly place the tax on the seller or retailer, whereas the Texas statute does not in any manner impose a tax upon the retailer. The Kansas statute, G.S.1951 Supp. 79-3603, for example, provides “ * * * for the privilege of engaging in the business of selling tangible personal property at retail in this state [Kansas].”

These cases have, no doubt, led this court to conclude that “[respondents are required to absorb the tax only because they have elected to sell items at a retail price less than the price provided for collectibility from the consumer.” This holding is entirely out of harmony with the Texas statute. The Texas statute contains no language which can be said to have reference to a “taxable privilege.” The statement of our court is in harmony with the theory that the retailer, in electing to sell items at a retail price less than the price provided for collectibility from the consumer, is exercising a privilege for which a tax is due by the retailer.

This court should also compare the bracket systems of the three states with that of Texas. The Tennessee “bracket system” is an administrative device adopted by the Tax Commissioner to permit the retailer “in so far as practicable” to pass the.tax on to the consumer, while the “bracket system” in the Texas statute is an integral part of the statute itself and by specific statutory language is the actual “Method of Collection and Rate of Tax” for each sale within the bracket. The Tennessee bracket is an administrative limited method of passing the retailer’s tax on to the consumer, while the Texas bracket is the statutory rate of the consumer's tax on each retail sale.

The North Carolina bracket system is an administrative device “for convenience of the retailer in collecting the tax.” The retailer has the burden of paying the privilege tax, however, with permission to pass on to the purchaser only a part of his tax liability, while the Texas bracket system is an integral part of the statute and is the actual statutory “Method of Collection and Rate of Tax” upon the consumer. The same is true as to the Kansas statute.

The case of White v. Washington, 49 Wash.2d 716, 306 P.2d 230, cited by the Court, is not in point. The Washington statute, RCW 82.08.060, is entirely different from the Texas statute. The Washington statute levied a statutory three per cent (3%) tax against the retailer, and then merely authorized the State Tax Commission to promulgate an administrative schedule or a bracket system “of the tax required to be collected by the seller from the buyer,” and the statute further specifies that the administrative methods adopted by the Commission were “to eliminate collections of fractions of one cent (⅛) and so as to provide that the aggregate collections of all taxes by the seller shall, insofar as practicable, equal the amount of the tax imposed by this chapter,” and further provided that “such schedules may provide that no tax need be collected from the buyer upon sales below a stated sum * * Thus, the bracket system under the Washington statute is clearly an administrative device adopted by the Tax Commission to permit the retailer to collect from the purchaser, as nearly as possible, the amount of tax levied against the retailer.

In view of the distinct difference between the tax statutes of other jurisdictions, except Ohio, and the Texas statutes, the cases construing the foreign statutes can be of little or no help to the Court in solving the question before this court. The well-established rules of statutory construction adopted by the courts of this state call for the conclusion that the tax, under Article 20.02(A), is imposed upon the consumer, not upon the retailer. A proper determination of whether the Texas statute levies a collectable tax against the retailer on sales between one cent (1‡) and twenty-four (24¾⅜) depends upon a proper interpretation of the specific language of the statute itself. In arriving at a proper interpretation of the statute, the specific language of Article 20.02(A) must be considered and not ignored.

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

GREENHILL, J., joins in this dissent.

      . It is noted that respondents were expressly exempted from the Limited Sales, Excise and Use Tax by the 58th Legislature at its Regular Session; Acts 58th Leg., 1903, Ch. 138, p. 387, Art. 20.04 (T) which reads:
      “There are exempted from the taxes imposed by this Chapter the receipts from the sale of tangible personal property when sold through a coin-operated vending machine for a total consideration of twenty-four cents (240) or less.”


author: BELCHER, Commissioner.

text:
    Herman BELL, Sr., Appellant, v. The STATE of Texas, Appellee.
    No. 36035.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1963.

      Paul Spillman, Wellington, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for the possession of whiskey and vodka in a dry area for the purpose of sale. The punishment was assessed at five months in jail and a fine of $500.00.

It was stipulated that Hall County was a dry area.

The testimony of the state reveals that Sheriff Neel, two of his deputies and an officer of the Texas Liquor Control Board went to the home of the appellant to execute a search warrant. When they arrived they approached the appellant who was walking from his chicken house to his residence. They informed the appellant that they had a search warrant for his place. In the search they found thirty-four pints of whiskey and vodka in a barrel under the floor of the chicken house and a half pint of whiskey was removed from his pocket.

The appellant did not testify or offer any evidence.

The only complaint urged for reversal is directed to certain argument made by the county attorney to the jury.

There are no formal bills of exception. The statement of facts agreed to by counsel to contain a true and correct summary and statement of all the pertinent evidence is in narrative form. The complaint to jury argument is not presented. Art. 759a, Vernon’s Ann.C.C.P.; Owen v. State, 171 Tex.Cr.R. 361, 350 S.W.2d 542.

The evidence is sufficient to support the conviction, and no error appearing, the judgment is affirmed.

Opinion approved by the Court.


author: BELCHER, Commissioner. WOODLEY, Presiding Judge.

text:
    Allan F. EDWORTHY, Appellant, v. The STATE of Texas, Appellee.
    No. 35929.
    Court of Criminal Appeals of Texas.
    June 29, 1963.
    On Rehearing Oct. 23, 1963.

      Heath, Rosenthal, Atlas & Cattanach, by Joseph E. Turner, Houston, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

The conviction is for rape; the punishment, fifteen years.

The indictment alleged that appellant made an assault upon the prosecutrix who was under eighteen years of age, and did ravish and have carnal knowledge of her, she not being his wife.

To this indictment the appellant entered a plea of guilty, and after being duly admonished as to the consequences of the same his plea of guilty was by the court accepted.

In pursuance of the requirements of the statute where an accused pleads guilty to a felony upon a trial before a jury, the state introduced evidence for the purpose of enabling the jury to intelligently assess the proper punishment. Art. 502, Vernon’s Ann.C.C.P.; Richardson v. State, 164 Tex.Cr.R. 500, 300 S.W.2d 83.

The testimony of the prosecutrix, age fifteen at the time of the commission of the offense charged, and also the written statement of the appellant pertaining to the offense were introduced in evidence before the jury by the state.

The appellant did not testify or offer any evidence.

In accordance with the court’s instruction the jury found the appellant guilty as charged in the indictment and assessed his punishment.

Appellant contends that the evidence showed or raised a defense in that the prose-cutrix was of previous unchaste character at the time of the commission of the act relied on for a conviction in that the state introduced in evidence his written statement in which he admitted having a prior act of sexual intercourse with her which constitutes a defense to the offense charged. Therefore, he argues that at the conclusion of the introduction of evidence, it became the duty of the trial court to withdraw appellant’s plea of guilty and enter for him a plea of not guilty. In failing to do so, the appellant insists that the trial court committed reversible error.

The previous unchaste character of a prosecutrix over fifteen years of age and under eighteen years of age does not constitute a defense to the offense of rape by force.

In considering the effect of the use of the word “ravish” in an indictment in connection with the allegation of carnal knowledge of the prosecutrix, which is the same pleading used in charging the offense in the instant case, this court in Rodrigues v. State, 166 Tex.Cr.R. 1, 308 S.W.2d 39, said:

“The word ‘ravish’ implies force and want of consent, and its use in the indictment in connection with the allegation of rape of a female between the ages of 15 and 18 years, as here, ren•ders the indictment sufficient to support a conviction for rape by force as well as for statutory rape. Dyer v. State, Tex.Cr.App., 283 S.W. 820; Patton v. State, 105 Tex.Cr.R. 128, 287 S.W. 51; France v. State, 148 Tex.Cr.R. 341, 187 S.W.2d 80.
“The word 'ravish’ is not, however, •descriptive of the offense and it is therefore not necessary that force be proven in order to sustain a conviction -under such indictment. Id.
“The use of the word ‘ravish’ by no means precluded a conviction for statutory rape, under the indictment. A conviction could be had thereunder for either rape by force or for statutory rape. Dyer v. State, supra.”

The plea of guilty by the appellant to the indictment containing allegations authorizing a conviction of rape by force sustains the conviction on the plea of guilty.

The judgment is affirmed

Opinion approved by the Court.

ON APPELLANT’S MOTION FOR REHEARING

WOODLEY, Presiding Judge.

The appellant agrees with our holding that the indictment is sufficient to support a conviction for either rape by force or statutory rape. He correctly contends, liowever, that under Art. 1183 Vernon’s Ann.P.C., which defines the offense of statutory rape as well as rape by force, consent of the female is a defense to rape by force and in consent cases where the female is 15 years of age or older, previous unchastity is a defense to statutory rape, though the accused may have contributed to her loss of chastity. Cloninger v. State, 91 Tex.Cr.R. 143, 237 S.W. 288.

The prosecutrix testified to only one act of intercourse. She fixed the time as on or about January 19, 1962, and the place as in her bedroom in the home of her parents. She testified that she was born November 4, 1946, and that she was not the wife of the appellant.

The state then offered appellant’s voluntary statement in which he stated: “During the year 1961 I became intimate with - (prosecutrix) and she became pregnant as a result of our being intimate. On Friday night, January 19, 1962, I went to the house of- (prosecutrix) in Caldwell, Texas, and I knocked on the window on the side of the house, which was the bedroom window of - (prosecutrix). - (prosecutrix) unlatched the screen and let me in the house. I got in the bed with her and had an act of sexual intercourse with her in her bed in her bedroom. This must have been about 8 P.M.”

The state thus corroborated the testimony of the prosecutrix as to the act of intercourse on or about the date alleged in the indictment but introduced evidence which exculpated the appellant and proved or raised the issue that such sexual intercourse was with the consent of the prose-cutrix and not by force, and that it was not her first act of intercourse.

Where, in a trial upon a plea of guilty, the facts placed in evidence by the state make evident the innocence of the ■defendant, or reasonably and fairly present such an issue of fact, the plea of guilty should be withdrawn by the court and a plea of not guilty entered. Burks v. State, 145 Tex.Cr.R. 15, 165 S.W.2d 460; Fite v. State, 163 Tex.Cr.R. 279, 290 S.W.2d 897; Harris v. State, 76 Tex.Cr.R. 126, 172 S.W. 975; Taylor v. State, 88 Tex.Cr.R. 470, 227 S.W. 679; Rayson v. State, 160 Tex.Cr.R. 103, 267 S.W.2d 153.

Appellant’s motion for rehearing is granted, the order of affirmance is set aside and the judgment is reversed and the cause remanded.


author: DICE, Commissioner.

text:
    Tommy Joe McFARLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 35810.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1963.
    No attorney on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   DICE, Commissioner.

Appellant was convicted of the offense of driving a motor vehicle upon a public highway while his operator’s license was suspended, and his punishment assessed at six months’ confinement in jail.

The prosecution and conviction are under Sec. 34 of Art. 6687b, Vernon’s Ann. Civil Statutes, which provides that upon conviction of the offense denounced by said section the defendant shall be punished by fine of not less than $25 and not more than $500, and, in addition thereto, there may be imposed a sentence of imprisonment not to exceed six months.

The judgment assessing appellant’s punishment at confinement in the county jail for six months, without the imposition of a fine, was unauthorized and calls for a reversal of the conviction. Persall v. State, 145 Tex.Cr.R. 476, 169 S.W.2d 4S8; Dotson v. State, Tex.Cr.App., 344 S.W.2d 879.

For such error, the judgment of the trial' court is reversed and the cause is remanded.

Opinion approved by the court.


author: McDonald, judge.

text:
    Charles Henry GENTRY alias Charles Williams, Appellant, v. The STATE of Texas, Appellee.
    No. 36183.
    Court of Criminal Appeals of Texas.
    Oct. 16, 1963.

      No attorney on appeal for appellant.
    Sam L. Jones, Dist. Atty., Corpus Christi, and Leon B. Douglas, State’s Atty., Austin, for the State.
   McDonald, judge.

Appellant was convicted of unlawful possession of marihuana as a subsequent offender, and his punishment was assessed at 15 years in the state penitentiary.

It appears by proper proof that after perfecting his appeal to this Court, appellant escaped from jail. It follows that this Court is without jurisdiction to do other than dismiss the appeal. Art. 824, Vernon’s Ann.C.C.P.; Warjak v. State, Tex.Cr.App., 282 S.W.2d 709; Coe v. State, Tex.Cr.App., 292 S.W.2d 125.

The State’s Motion to Dismiss is granted, and the appeal is dismissed.


author: WOODLEY, Presiding Judge.

text:
    Ex parte A. R. NEWMAN.
    No. 35827.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1963.
    No attorney on appeal, for appellant.
    Leon B. Douglas, State’s Atty., Austin, for the State.
   WOODLEY, Presiding Judge.

The appeal is from an order entered in a habeas corpus proceeding remanding the appellant to custody to be extradited to the State of New Mexico.

The warrant of the Governor of Texas and the requisition of the Governor of New Mexico and supporting documents appear to be sufficient.

Upon the hearing the appellant was identified as the A. R. Newman who obtained the sum of $107.54 at a J. C. Penney Company store in Portales, New Mexico, on October 15, 1962.

No evidence was offered in support of the averment of the application for habeas corpus to the effect that the applicant was not A. R. Newman.

The court did not err in remanding the appellant to be taken to New Mexico to answer the complaint charging him with theft by false pretext of $107.54 from J. C. Penney Company.

The judgment is affirmed.


text:
    H. K. STECHER, Appellant, v. The STATE of Texas, Appellee.
    No. 36048.
    Court of Criminal Appeals of Texas.
    Oct. 23, 1963.
    See also 345 S.W.2d 753.
    James B. Turner, J. Charles Whitfield,. Jr., Houston, for appellant.
    Frank Briscoe, Dist. Atty., Carl E. F. Dally, James C. Brough and Richard P. Hogan, Asst. Dist. Attys., Houston, and. Leon B. Douglas, State’s Atty., Austin, for' the State.
   DICE, Commissioner.

Appellant was convicted of unlawfully parking a vehicle, which was not a commercial vehicle, in a truck loading zone-during prohibited hours, in violation of an. ordinance of the City of Houston.

The prosecution arose in the corporation-court. Trial de novo was in County Criminal Court at Law No. 2, before a jury.. This appeal is from a judgment rendered on¡ the jury’s verdict finding appellant guilty and assessing his punishment at a fine of $200.

Upon the trial it was shown that on October 25, 1962, the date alleged, being on a. Thursday and not a legal holiday, the appellant parked his 1951 Dodge passenger automobile, bearing 1962 passenger license No. SC 6897, on the south side of the 900-block of Preston Avenue in the City of Houston, which was in a truck loading zone marked “for trucks from 9 a. m. to 4 p. m.,’s and &at said vehicle was parked at such-location at the hour of 3:44 p. m.

Certain ordinances of the City of Houston were introduced in evidence, including::

“ ‘Section 41-167, designation of curb loading areas.
“The city traffic engineer is hereby authorized to determine the location of curb loading zones and shall place and. ■maintain appropriate signs indicating the same and stating the hours during which the provisions of this section are applicable.’ ”
“ ‘Section 41-168. Standing in truck loading zones.
'“It shall be unlawful for any person to park or stand any vehicle other than .a commercial vehicle in any truck loading zone between the hours of seven o’clock a. m. and six o’clock p. m. * * ⅜ This section shall not apply •on Sunday or legal holiday.’ ”
“Section 1-8. General Penalty.
“ ‘The penalty for violation of any ■provision of this Code, where no other penalty is specified, shall, upon conviction, be a fine not to exceed two hun•dred dollars as provided in Article 11, Section 12 of the charter.
“ ‘Each day’s violation of any provi•sion of this Code, unless otherwise provided shall constitute a separate offense.’ ”

A traffic engineer’s report relative to ■parking in the 900 block of Preston was introduced in evidence, reading as follows:

4‘ ‘DEPARTMENT OF TRAFFIC AND TRANSPORTATION CITY OF HOUSTON September 18, 1959 ⅜ ⅜ ⅜ ⅜ ⅜ ⅜
NO PARKING ANYTIME TRUCKS 30 MINUTES S:30 A.M. — ‡ P.M. TOW AWAY
900 block Preston, south side, beginning 16' west PVL Main and extending west SO7
6-15-59’ ”

Testifying as a witness in his own behalf, appellant admitted that the Dodge automobile was his personal passenger car and that he parked it at such location on the occasion in question. Appellant further testified that he operated a lawyers’ supply business; that he used the automobile in making deliveries of merchandise to his customers and on the particular occasion in question he parked the automobile in the 900 block of Preston Avenue to make a delivery or deliveries to his customers.

The court in his charge required the jury to find from the evidence beyond a reasonable doubt, before convicting appellant, that he did unlawfully park a vehicle which was not a commercial vehicle in a truck loading zone between the hours prohibited.

In the charge, the court gave a definition of commercial motor vehicle as taken from Art. 6675a-1 (i) and Art. 6701&-1, Sec. 1, Vernon’s Ann.Civ. Statutes, and which was substantially the same as given and approved by this court in Stecher v. State, Tex.Cr.App., 365 S.W.2d 800. It also followed Sec. 41-2 of the 1958 City of Houston ordinance code introduced in evidence by the appellant, which in subsection (9) defines a truck or commercial vehicle as “Every motor vehicle designed, used, or maintained primarily for the transportation of property.”

Appellant objected to the court’s definition on the ground that it defined a commercial motor vehicle as described in the laws pertaining to registration of motor vehicles rather than as it pertains to operation of vehicles.

Appellant further requested the court to instruct the jury as follows :

“Our Statutes further provide that a commercial motor vehicle means any motor vehicle other than a motorcycle, designed or used for the transportation of property, including every vehicle used for delivery purposes.”

The definition requested by appellant, as found in Art. 827a, Sec. 1, and Art. 827b. Vernon’s Ann.P.C. was by this court held insufficient in Ex parte Carter, 143 Tex.Cr.App. 46, 156 S.W.2d 986, in a prosecution under Art. 805, Vernon’s Ann.P.C., for operation of a motor vehicle under improper license.

In overruling the objection and refusing the requested charge, the court did not err.

In his amended motion for new trial, appellant urged as error, a comment alleged to have been made by the court to the jury with reference to certain blank forms furnished them with the charge, to be used in writing their verdict in the case. Such complaint is not verified by a proper bill of exception and is therefore not before us for review.

Finding the evidence sufficient to support the conviction and no reversible error appearing, the judgment is affirmed.

Opinion approved by the court.


author: MORRISON, Judge. McDonald, judge.

text:
    Ex parte O. R. RODGERS.
    No. 35920.
    Court of Criminal Appeals of Texas.
    June 19, 1963.
    Rehearing Denied Oct. 23, 1963.
    Hardeman, Smith & Foy, Justin A. Sever, San Angelo, for appellant.
    Grindstaff & Grindstaff, Ballinger, for respondent.
   MORRISON, Judge.

Appellant, an employee of Mobil Oil Company, was convicted in the County Court of Runnels County upon an appeal from a conviction in the Corporation Court of the City of Ballinger for a violation of an ordinance of said city which prohibited the unloading of gasoline at a retail establishment from a tank truck containing more than 1500 gallons of gasoline. His fine being only $50.00, appellant was unable to appeal; so he applied to the District Court for a writ of habeas corpus, alleging that such ordinance was unconstitutional. The court overruled appellant’s contention, remanded him to custody, and he appealed to this Court from such ruling.

The pertinent portions of the ordinance are Section 2:

“That no person, firm— association or corporation shall unload gasoline or other volatile inflammable oil at any retail establishment within the corporate limits of the City of Ballinger, Texas, from a tank, truck, or other container which contains more than 1500 gallons of such gasoline or other volatile inflammable oil,”

and Section 3:

■“That the foregoing provisions shall not apply to person, firm, association or corporation transporting gasoline or other volatile inflammable oil within or through the corporate limits of the city of Ballinger, Texas, in the normal course of business, and not for the purpose of unloading the same at a retail establishment within such corporate limits, and shall not apply to any wholesale establishment; commonly referred to as bulk plant.”

Appellant asserts that these sections create an arbitrary and unreasonable classification and were designed to discriminate in favor of certain retail establishments who bought their gasoline from companies maintaining a consignee and a warehouse in the city, from which they make deliveries to the filling stations in smaller trucks, over the filling stations who buy their gasoline from the larger tank trucks delivering gasoline directly to their stations from a central dispersing point, which system enables them to effect a saving of approximately one cent per gallon.

We are confronted with the determination of whether or not there is a reasonable basis for the creation of this class by the city council. San Antonio Retail Grocers Inc., v. Lafferty, 156 Tex. 574, 297 S.W.2d 813.

The only basis upon which the city relies is that of safety. We have examined the testimony on this question with care and have concluded that appellant has met the burden of proving that no greater danger of fire was inherent in the direct delivery by transport truck over the system of delivery to a storage tank and then redelivery by smaller truck to the station, the method employed by Mobil’s competitor, the Standard Oil Company.

That portion of the ordinance which regulates the size of underground tanks at filling stations need not be discussed because the city concedes, and their own witnesses testified, that no greater danger is inherent in a larger than in a smaller underground tank.

The ordinance does not limit the size of the tank, truck or container from which gasoline, etc. may be delivered to retail establishments so long as the amount of gasoline, etc. in the container does not exceed 1500 gallons. There is no disagreement between the parties that a properly vented tank and properly constructed equipment will prevent the escape of fumes, and therefore the quantity of gasoline carried does not create a fire hazard which the ordinance by its terms seeks to prevent.

Appellant has met his burden and has shown that the ordinance is unconstitutional. San Antonio Retail Grocers Inc. v. Lafferty, supra; Ex parte Johns, 129 Tex.Cr.R. 487, 88 S.W.2d 709; Ground Water Conservation Dist. No. 2 v. Hawley, Tex.Civ.App., 304 S.W.2d 764; and Hawley v. Ground Water Conservation Dist. No. 2, 157 Tex. 643, 306 S.W.2d 352.

Relator is ordered discharged.

ON MOTION FOR REHEARING

McDonald, judge.

The City, in its motion for rehearing, relies on the proposition that the larger transport carrying 8,000 gallons of gasoline will allow more fumes or vapors to escape and thus a need for regulation is created as a safety measure.

A thorough review of the record, with careful consideration given to that portion of the statement of facts which Respondent points out as the basis for this contention, leads us to a contrary conclusion. The record reflects that the prohibited deliveries create no greater danger of fire than those allowed under the ordinance. The above contention of the Respondent is therefore without merit.

The City contends secondly that the appellant has not met his burden in proving the ordinance to be discriminatory, unreasonable and arbitrary and thus unconstitutional. In support of this contention Respondent cites City of Bellaire v. Lamkin, 159 Tex. 141, 317 S.W.2d 43, 66 A.L.R.2d 1289. We cannot agree that Lamkin is contrary to our holding on original submission of this cause. The extraordinary burden has been met, the test being whether or not there is a reasonable basis for the creation of this class by the city council. San Antonio Retail Grocers, Inc. v. Lafferty, 156 Tex. 574, 297 S.W.2d 813; see also our original opinion and cases cited therein.

“Ordinances relative to the storage, transportation and handling of gasoline and oil, like all ordinances must be reasonable and not arbitrary.” Mc-Quillin on Municipal’ Corporations,. Vol. 7 Section 24.477.

We remain convinced that our prior opinion correctly disposed of this case.

The Respondent’s Motion for Rehearing is overruled.


author: RENFRO, Justice.

text:
    W. E. THOMPSON, Appellant, v. Wynona THOMPSON, Appellee.
    No. 16452.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 4, 1963.
    Rehearing Denied Nov. 1, 1963.

      Nelson & Sherrod and Stan Carter, Wichita Falls, for appellant.
    Jones, Fillmore, Robinson & Lambert, Clyde Fillmore and Ray Farabee, Wichita Falls, for appellee.
   RENFRO, Justice.

The defendant appealed from a judgment in the amount of $9,600 in favor of his former wife.

The plaintiff Wynona Thompson filed a complaint in the 30th District Court of Wichita County asking that her former husband, W. E. Thompson, be held in contempt for failure to pay child support payments in the amount of $9,675.00. By further pleading she requested the court to extend the child support payments from the child’s sixteenth until its eighteenth birthday.

The defendant filed a complaint asking the court to hold the plaintiff in contempt for removing the child from the Str la without permission of the court.

No other pleadings were filed and no evidence was introduced except such as pertained to the two contempt complaints and the motion to extend payments for a two year period.

The court extended the payments for a two year period. The court found that neither party was in contempt of court, but rendered a personal, final money judgment in favor of plaintiff against the defendant for the sum of $9,600, with interest at six per cent from date of judgment, and providing for execution.

The only question before us is whether or not the trial court had authority to enter a personal, final judgment against the defendant under the circumstances.

While under Article 4639a, Vernon’s Ann.Civ.St, and Rule 308-A, Texas Rules of Civil Procedure, the trial court has full power and authority to enforce child support orders by civil contempt proceedings, the court in the instant case did not find the defendant guilty of contempt but expressly found that he was not in contempt for failure to make support payments. Instead of ordering the defendant to pay the arrears under contempt order, the court entered personal judgment against the defendant.

In Brito v. Brito, Tex.Civ.App., 346 S.W.2d 133, the court held in a similar case: “ * * * it has long been settled that courts cannot grant judgments for arrearages in child support payments under these circumstances.”

The Supreme Court in Burger v. Burger, 156 Tex. 584, 298 S.W.2d 119, held: “It seems clear from the decisions that the trial court had no power to enter a judgment such as that sought by Mrs. Burger in this case. Whatever power it has in that regard has been held to come from Art. 4639a, V.A.C.S., and that statute is exclusive.”

This court, in Youngblood v. Youngblood, Tex.Civ.App., 163 S.W.2d 731, held that the only remedy for enforcing an order for child support is a civil contempt proceeding as stated in Article 4639a, supra. See also 21 Tex.Jur.2d, pp. 17-18, § 397, wherein it is stated: * * * it has been held that a judgment directing the parent to make periodical payments for the support of a child may be enforced only by contempt proceedings and that the trial court is without power, on motion of a divorced wife, to reduce child support arrearages to a separate judgment.”

Under our construction of the statute and in view of the aforecited authorities, we think clearly the trial court had no authority to enter separate judgment for the amount of the child support arrearages. That portion of the trial court’s judgment is reversed. The judgment is affirmed as to extension of payments for a two year period.

Reversed in part and affirmed in part.


author: CHAPMAN, Justice.

text:
    ESTATE of S. R. CRIM, Deceased, Appellant, v. The STATE of Texas et al., Appellees.
    No. 7273.
    Court of Civil Appeals of Texas. Amarillo.
    June 10, 1963.
    Storey, Sheridan & Hightower, Vernon, for appellant.
    R. D. Oswalt, Vernon, for appellees.
   CHAPMAN, Justice.

Condemnation efforts by Wilbarger County and the State of Texas under the power of eminent domain constitutes the subject matter of this suit.

The first instrument filed by the condemning authorities to take the property in Wilbarger County for state highway purposes described the owner of such lands as “Boyd Barjenbruch, Independent Executor of Will of Estate of S. R. Crim, Deceased, who resides in Montague County, Texas.” There is not any other instrument alleging any other owner. The suit was styled “State of Texas et al vs. Estate of S. R. Crim, Dec’d.” None of the notices, services, or proceedings named anyone as owner of the property sought to be condemned other than as stated. There are strong inferences in the record to the effect that there were other beneficiaries under the will of S. R. Crim, deceased, but there is not any probative evidence as to whom they were. Therefore, we shall not discuss the point raised by appellant on the question of lack of necessary parties.

Appeal was made from the orders of the Special Commissioners and trial was had to a jury in the county court with no stipulations or agreements concerning the right of condemnors to take the property, or the regularity of the proceedings thereof. Judgment was rendered for the State and County based upon a jury verdict.

The exercise of the power of eminent domain is special in character and there must be a showing of strict compliance with the law authorizing the taking of property of an owner for public use. City of Houston v. Kunze, 153 Tex. 42, 262 S.W.2d 947.

It has been held that in order to show jurisdiction of the court to try a condemnation case the proceeding's required in Article 3264 et seq. Vernon’s Ann.Civ.St. such as the resolution of the governing body, the order of the county court in appointing commissioners, their oath, the notice of the time and place of hearing to assess damages, etc., should be introduced into evidence. Vey v. City of Fort Worth, Tex.Civ.App., 81 S.W.2d 228 (writ dismissed); Parks v. City of Waco, Tex.Civ.App., 274 S.W. 1006 (writ dismissed). Those requirements were not complied with and proper questions were raised for such failure.

There are other serious questions raised but we do not consider a discussion of them is necessary to a proper disposition of the case, since they likely will not occur upon another trial. However, we do note in passing that the only right the judgment appears to award is costs against the defendant below. Accordingly, the judgment of the trial court is reversed and remanded for a new trial.


author: DENTON, Chief Justice.

text:
    J. B. MARION d/b/a J. B. Marion Company, Appellant, v Max M. BOWERS et al., Appellees.
    No. 7284
    Court of Civil Appeals of Texas. Amarillo.
    Sept. 23, 1963.
    Rehearing Denied Oct. 21, 1963.
    Edward W. Napier, Lubbock, for appellant.
    Allison, Mann & Allison, Levelland, for appellees.
   DENTON, Chief Justice.

This is a suit for the breach of a written contract under which appellees, Max M. Bowers and Don Samford d/b/a Bowers & Samford, agreed to sell and appellant, J. B. Marion Company, agreed to purchase the 1961 cotton crop of appellees at 30.40 cents per pound. The case was submitted to a jury upon special issues. The jury’s answers were favorable to appellees’ contentions and the trial court rendered judgment in their favor.

Appellees harvested a total of 230 bales of cotton on their farm under contract with appellant. Appellant accepted the first S3 bales and paid the contract price, but refused to accept the remaining 177 bales. It is this alleged breach that provoked this lawsuit. No questions have been raised relative to the validity of the contract or the breach thereof by appellant. The primary question to be determined has to do with whether or not the correct measure of damages was applied. It is the contention of appellant that the trial court erred in failing to obtain a jury finding as to the fair market value of the cotton at the time of the breach at the place of delivery. In response to a special issue, the jury found appellees “exercised ordinary care to sell such 177 bales of cotton for the best price obtainable”.

It is well settled in this state that where a purchaser has wrongfully refused to accept delivery of property, the seller has a choice of three remedies. Waples v. Overaker, 77 Tex. 7, 13 S.W. 527; Leventhal v. Hollamon, (Tex.Civ.App.), 165 S.W. 6, (Error Refused); Avant v. Watson, 57 Tex.Civ.App. 304, 122 S.W. 586; Sour Lake Townsite Company v. B. Deutser Furniture Company, 39 Tex.Civ.App. 86, 94 S.W. 188, (Error Refused). In such a case the seller may hold the goods as the property of the buyer and sue for the contract price; or he may sell them at a fair sale and sue for the deficiency; or he may treat them as his own and sue for the difference between the contract price and their market value on the date fixed for delivery. White v. Matador Land & Cattle Company, 75 Tex. 465, 12 S.W. 866; Smith v. Ratliff, (Tex.Civ.App.), 157 S.W.2d 945; Gugenheim v. Hancock, (Tex.Civ.App.), 231 S.W.2d 935, (Refused, NRE); Clearview Louver Window Corp. v. Rubin Glass and Mirror Company, (Tex.Civ.App.), 284 S.W.2d 221, (Refused, NRE); 37A Tex.Jur., Sales, Section 267, page 552.

Appellees elected to pursue the second remedy outlined above by selling the rejected cotton at a fair sale and suing for the difference between the proceeds of the sale and the contract price. Appellee Bowers testified that five different cotton buyers in the area were contacted and that the rejected cotton was sold for 29.10 cents per pound, the highest price obtainable. The pleadings and evidence are sufficient to support the jury finding.

The judgment of the trial court is affirmed.

Affirmed.


author: LANGDON, Justice.

text:
    C. P. WOODY, Appellant, v. Nora WOODY, Appellee.
    No. 16453.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 4, 1963.
    Rehearing Denied Nov. 1,1903.

      Ben Hagman, Weatherford, for appellant.
    Lattimore & Lattimore, and H. S. Latti-more, Fort Worth, for appellee.
   LANGDON, Justice.

Nora Woody, appellee, instituted suit for divorce and partition of the community property alleging cruel and harsh treatment of such a nature as to render their further living together insupportable. Appellant answered by general denial. The case was tried to the court without a jury. The only testimony was that of the appellee. Judgment was rendered granting the divorce and partition of the community property.

C. P. Woody, appellant, appeals contending that the appellee was not entitled to a divorce because there were no material facts alleged by the plaintiff which were supported by probative evidence; that there is no full and satisfactory evidence of any legal grounds for divorce and that cruel treatment was not established within the statutory grounds such as to render their further living together insupportable.

We have concluded that the judgment of the trial court must be reversed.

The evidence reflects that the parties were married on March 17, 1925. They had no children. They lived and worked together for approximately thirty eight (38) years until the appellee during the absence of the appellant moved out of their home in the country and took residence in the city. Ap-pellee testified that never during their long marriage had the appellant struck or beat her or made a threatening gesture toward her nor in any manner inflicted any bodily harm or injury upon her. There is no testimony that the appellant ever cursed or abused her, drank to excess or that he drank at all or was immoral in any way. In her testimony she was suspicious that he at times consorted with other women but there was no direct testimony as to names, dates and places. Her suspicion was based primarily upon the fact that for some time he was careless in his dress and personal appearance. That she patched his clothes by placing one patch upon another and after about ten (10) years of urging upon her part he finally began to bathe, shave, have his hair cut and use a deodorant. Because a morning application of deodorant appeared to have a lasting effect it was assumed by the appellee that the appellant had not worked cows all day but rather had been out with some woman.

The appellee testified that for many years prior to 1941 her husband worked for various companies and that any time he could buy land, he bought it. That he would fuss at her to keep expenses down so he could have land and cattle.

“That was what he wanted, so I skimped along and did * * * sewing and everything, and we bought land and cattle. * * I gave up, I told him that I could not hold up to the work out in the country. He said that I wouldn’t have to work, but I rode fences, I helped brand cattle, * * *. I helped castrate cattle, I have worked those cattle and did my washing, ironing, and kept house and never did have any help. We put everything in land and cattle like he wanted to.”

In response to the question as to what her grounds for divorce were the appellee stated that regardless of what she did or said it was wrong. That she was fussed at continuously concerning her monthly expenditures which amounted to $65.00 or $70.00. That on one occasion when she called home a woman answered the phone and that when she came home from work she knew that a woman had been there and on one occasion that at least 4 people had eaten at the table. Continuing she stated, “I fixed the evening meal, and Preston said, ‘I’ve got some fish out there, why didn’t you fix them for dinner ? I would have liked to have had them.’ I said, ‘Did you go fishing alone ? ’ ‘Yes.’ That’s all I said, and I went ahead cleaning up from supper, and he went out to clean the fish. I noticed he strung the long net, seine net, out and I know that one man can’t handle one of those nets. I went out and felt of the net and it was wet.” The inference was that appellant was assisted by a woman in using the seine.

In answer to a question as to whether her husband had asked her go get up and leave the place she stated, “ ‘Now, Preston, if you don’t straighten out, I’m leaving you.’ I knew he was not working, I can tell when a man works or is not working, I can tell when a man works in the country. In the first place — now, up until about ten years ago, he worked hard, Preston worked real hard. He worked with the cattle, and he didn’t want to go anywhere, he was always tired. * * * I kept telling him to straighten up and stop fussing at me, or I was just going to have to get out. Well, he’d say, ‘Get out,’ and we went through that, and the fourth time he said, ‘Well, just get out,’ I got out. I felt that the fourth time, he meant it.”

She testified that in 1957 she wanted to fix up the home and her husband wanted a car instead and, “So, we always agreed and bought what he wanted, and we bought this Dodge, Air-conditioned, and didn’t fix up the home.”

In another reference to women in her husband’s life she testified that one night a “squirt” from Fort Worth was out there and had two women with him and another man, “Q Well, there was a couple of men and a couple of women there; anything wrong in that ? A It depends on what they come for, Mr. Hagman. Q Well, what did they come for? A They came to see him. Q Well, he’s got a right to entertain his friends, hasn’t he ? A How did I know who they were? I’d never seen them. * * * Q Now, you told the Court about having followed him around and checked the speedometer? A Yes, sir, I sure did. Q When you followed him, you didn’t find him with any women, did you? A He was sure headed for one. Q Now, just a minute. Did you follow him to when he came in contact with a woman? A No, sir, I didn’t follow — ”

Much of the appellee’s testimony concerned events which occurred in 1941, some 20 or more years past. At most her testimony reflected petty quarreling and trivial misunderstandings over a period of years.

It is within the personal province of an aggrieved spouse to condone a marital offense. Ivy v. Ivy, Tex.Civ.App., 177 S.W.2d 237.

Appellee did not testify to any personal reactions or feelings concerning appellant’s conduct except on one occasion in answer to the question as to whether it was insupportable she answered, “It is” and by way of explanation described a discussion she had with her husband during a fourteen mile drive from Weatherford to Peaster which she terminated by looking at her husband and saying to him, “Phoo”.

On another occasion when she was asked if an illness she had was caused by the treatment she had received from her husband she answered, “Well, I had just been pushed and I was overworked.” She did not by her testimony place the blame upon her husband, although she did criticize him for not thanking her folks for caring for her and because she had to buy antifreeze for the car she drove.

Art. 4629, Vernon’s Ann.Texas St., provides that a divorce may be decreed where either party is guilty of excesses, cruel treatment, or outrages toward the other, if such ill treatment is of such a nature as to render their living together insupportable.

We are unable to find full or satisfactory evidence that the appellant has been guilty of any excesses, cruel treatment or outrages toward the appellee within the meaning of the statute. The conduct complained of is not such as to render further living together insupportable. The term “insupportable” means “incapable of being supported or borne, unendurable, insufferable, intolerable.” Ingham v. Ingham, Tex.Civ.App., 240 S.W.2d 409, 411; Ritch v. Ritch, Tex.Civ.App., 242 S.W.2d 210. The divorce statutes should be strictly construed. Allen v. Allen, Tex.Civ.App., 267 S.W.2d 911; Green v. Green, Tex.Civ.App., 268 S.W.2d 237; Ritch v. Ritch, supra.

The appellee did not testify that any of the acts complained of endangered her health, outraged her feelings or inflicted any mental pain or anguish. She did during cross-examination state that the expression on appellant’s face affected her heart condition, but that he had never touched her personally. There was no evidence concerning a heart condition.

In order to permit a decree of divorce to stand the evidence must he full and satisfactory not only to the trial court but to the appellate court. In our opinion the evidence in this case does not meet this test. Barrett v. Barrett, Tex.Civ.App., 368 S.W.2d 709; Art. 4632, V.A.T.S.; McDonald v. McDonald, Tex.Civ.App., 316 S.W.2d 780.

The appellee contends that the appellant is estopped to contend that there was not sufficient evidence to support the judgment because his attorney announced that there was no contest to the divorce. This counterpoint may be readily disposed of because neither party may waive the requirements of the statute. The parties may not agree to a divorce. Even in a “waiver” divorce it is essential to prove grounds for a divorce in compliance with the requirements of the statute.

Reversed and remanded.


author: COLEMAN, Justice.

text:
    ALLIED FINANCE COMPANY, Appellant, v. Edward MEYER, Appellee.
    No. 14195.
    Court of Civil Appeals of Texas. Houston.
    Oct. 17, 1963.

      Locke, Purnell, Boren, Laney & Neely, John D. Crawford, Dallas, for appellant.
    Jerome Pope, George Donalson, Houston, for appellee.
   COLEMAN, Justice.

This is an appeal by Allied Finance Company from an order overruling its plea of privilege.

Appellee, Edward Meyer, brought suit against Merchants National Bank of Fort Smith, Arkansas, a foreign corporation, W. T. Follis and Allied Finance Company. He alleged that the Bank, acting through its agents, W. T. Follis and Allied Finance Company, converted personal property belonging to him.

Merchants National Bank was dismissed from the suit. Allied Finance Company filed its plea of privilege, and a controverting plea was filed alleging that a crime or trespass was committed in Harris County and that venue is proper in Harris County by reason of Section 9 of Article 1995, Vernon’s Ann.Revised Civil Statutes of Texas. It was also alleged that venue was properly maintained in Harris County by reason of Section 29a of Article 1995.

The only testimony produced at the hearing on the plea of privilege was that of ap-pellee. Certain equipment owned by him was on a truck belonging to Roy Hamilton when it was repossessed on October 1, 1962, from a job site in Harris County. On the 3rd or 4th of October he recovered his property at the place “where Mr. Follis keeps the repossessed cars.” He testified that he was sent out there by a man at the Allied Finance Company office in Palms Center. He didn’t see the man that took the truck. He didn’t know anybody connected with the Merchants National Bank of Fort Smith, Arkansas.

There is nothing in the evidence to indicate that Allied Finance Company had appellee’s equipment in its possession at any time. Neither is there any testimony from which an inference could be drawn that Mr. Follis is an agent or employee of Allied Finance Company. Assuming that the evidence shows that a crime or trespass has been committed in Harris County, Texas, there is no evidence that Allied Finance Company participated as a principal, accomplice, or accessory therein, or that the offense was committed by its agent or representative in the course of his employment. Such proof is necessary if venue as to Allied Finance Company is to be retained in Harris County under Subd. 9 of Art. 1995. McDonald, Texas Civil Practice, Vol. 1, Sec. 4.16, p. 359; Brown Express, Inc. v. Arnold, 138 Tex. 70, 157 S.W.2d 138, opinion adopted; Dillard et al. v. Smith, 146 Tex. 227, 205 S.W.2d 366.

Since the pleading’s and evidence fail to show that Allied Finance Company is a necessary party to this action, the order of the trial court cannot be sustained under Subd. 29a of Art. 1995. Ladner v. Reliance Corporation, 156 Tex. 158, 293 S.W.2d 758; Shaw v. Allied Finance Company, 161 Tex. 88, 337 S.W.2d 107.

In addition it appears that Mr. Follis is a resident of Harris County, in which event Subd. 29a is not applicable. Tarrant v. Walker, 140 Tex. 249, 166 S.W.2d 900; White v. Gamblin, Tex.Civ.App., 203 S.W.2d 1014.

The judgment of the trial court is reversed and the case is remanded to the trial court with instructions that it be transferred to a District Court of Dallas County, Texas, for trial on the merits.