author: VAUGHAN, J.

text:
    SUPERIOR INCINERATOR CO. OF TEXAS v. TOMPKINS, City Auditor.
    No. 10738.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 23, 1931.
    Rehearing Denied April 4, 1931.
    Burgess, Burgess, Chrestman & Brundidge and L. E. Elliott, all of Dallas, for appellant.

      James J. Collins, CJity Atty., A. A. Long, W. Hughes Knight, and H. P. Kucera, Asst. City Attys. all of Dallas, for appellee.
   VAUGHAN, J.

This suit was brought by appellant, Superior Incinerator Company of Texas, duly incorporated, against appellee, R. V. Tompkins, auditor of the city of Dallas, to compel him as such auditor to countersign a certain contract alleged to have been duly executed by the city of Dallas, acting by and through its board of commissioners on April 15,1929, under which contract appellant was to construct a 60-ton incinerator- for the city of Dallas, on a site to be selected by the city, for the sum of $43,000. Appellant, in its petition filed June 22, 1929, based its prayer for relief on the following alleged facts: That on December 15,1927, by a home rule election, as provided by statute, the city of Dallas was authorized to issue coupon bonds in the amount of $150,000 for the constrüction, improvement, and enlargement of the incinerator system of the city of Dallas; that thereafter, on June 8, 1928, by ordinance duly passed, the city issued $50,000 of the amount so authorized, and caused said sum to be placed in the treasury of the city, where such sum, or an amount thereof sufficient to satisfy appellant’s contract, had at all times remained ; that on February 25, 1929, the board of commissioners duly passed an order adopting specifications prepared by the city engineer, “covering enlargement of the North Dallas incinerator and the construction of an additional 60-ton incinerator,” and ordered the city secretary to advertise for bids accordingly ; that the city secretary thereupon caused to be published in the Dallas Dispatch, the official organ of the city of Dallas, an advertisement or notice that sealed bids would be received until 10 o’clock a. m., March 11, 1929, for the redesigning, remodeling, and repair of the North Dallas incinerator to bring its burning capacity up to 160 tons in twelve hours, and the construction of a new incinerator plant to be placed on a site to be furnished by the city of Dallas, and to be known as “Incinerator Plant No. 5”; that bidders were instructed to bid .on both projects on blanks furnished by the engineer for the bidding, “in strict accordance to the terms of ‘Instructions to Bidders’ and the ‘Specifications,’ copies of which may be had from the City Engineer” ; that bidders were also instructed that the city might accept the bid of any contractor for either project and reject his bid for the other, and further that a certified check for $5,000 should • be submitted with the bid; that this notice was published five times, beginning February 26, 1929,; that on March 11, 1929, the board of commissioners opened the bids, and referred them to the city engineer, who made written recommendation to the street commissioner that “the Superior Incinerator bid being the lowest bid on Incinerator No¡ 5, it would also be my recommendation that the contract be awarded them for the building of No. 5”; that on April 15, 1929, the board of commissioners passed an order awarding appellant the contract for building incinerator No. 5, in accordance with the specifications for $43,000, “this being the best bid submitted”; that the city auditor was, by said order, directed to prepare a contract accordingly; that the order specified that the amount was to be “paid out of the incinerator bond fund”; that the city attorney thereupon prepared, inspected, and passed upon a written contract for the construction of said incinerator plant No. 5, and on April 15, 1929, same was duly executed in triplicate by appellant, and the city of Dallas, acting by its mayor pro tern., and attested by the city secretary and the seal of the city of Dallas affixed; that the contract required the execution by appellant of a bond in the penal sum of $43,000, guaranteeing the due performance of the same, which appellant as principal, and the Massachusetts Bonding & Insurance Company and Sam H. Riley, as sureties, duly executed, and said bond was approved by the commissioner of finance and revenue; that the contract further provided for a bond in the penal sum of $10,000, conditioned to indemnify the city against damages, costs, and expense on account of any cause of action growing out of the use of any patented invention or the infringement of any patented invention used in said construction work, which bond was also executed by appellant, as principal, and Massachusetts Bonding & Insurance Company and Sam H. Riley^ as sureties, and approved by the commissioner of finance and revenue; that, in said contract for the construction of plant No. 5; the city agreed to set aside and appropriate out of the funds arising out of the issuance and sale of incinerator bonds the sum of $43,000, “which funds are now in the City Treasury,” to pay the contractor in accordance with the terms of the contract, and thereupon did, by said contract, appropriate same to said use by agreement that “said funds shall constitute a sacred fund for the payment of said contractor, and shall not be drawn upon or diverted to any other purpose”; that, at the time of the issuance of the bonds, the city had, by proper ordinance, levied a tax and made provisions for sinking fund payments, and had sold $50,000 of the bonds and placed the money in the city treasury, where same was at the time of the passing of all the ordinances hereinabove referred to, and the making and executing of the contract, and the bonds required by appellant thereby, and at. the time appellee was called upon to countersign the contract and charge the amount of said contract to the incinerator bond fund then in the city treasury; that appellee refused to countersign the contract or charge the amount thereof required to the funds appropriated for the payment of the amount provided in the contract.

By his first amended original answer, filed October 10, 1929, appellee interposed a general demurrer, general denial, specific denial of appellant’s material allegations, and, in addition thereto, special pleas alleging: That the c-ity attorney had not approved the contract, and had advised appellee not to sign the same; that the advertisement for bids ran for the first time on February 26, 1929, was not published for the requisite number of times subsequent to the taking effect of the order of February 25, 1929, because it, not having been approved by the mayor, did not take effect until two days after its passing; that the city did not have the advantage of competitive bidding with relation to the contract, because (a) each bidder was required to bid on both plants, (b) the location of plant No. 5 had not been definitely determined and was not specified, (c) there were no plans adopted or approved which would show the size or character of the building to be constructed, (d) each bidder was permitted to supply his own plans, in that, the specifications provided that each bidder must furnish complete working drawings covering the design upon which the bid is placed and they must be in accordance with the specifications, (e) the specifications called for a type of construction covered by patent rights held by appellant; that “Instructions to Bidders” was invalid, because it provided that the party making any bids should furnish evidence “satisfactory to the Street Commissioner” of his experience, familiarity with the work specified, and his financial ability, whereas the charter places such matters within the discretion of the board of commissioners; that the contract, was invalid because the specifications provided for a turnkey job, whereas the contract provided that the city, under certain conditions, should pay the expense of erecting a foundation; that the city of Dallas, by resolution of June 5, 1929, rescinded the board’s orders of April 15, 1929, and breached the contract, for which reason appellant’s remedy by way of suit for damages was adequate.

By its supplemental petition filed October 14, 1929, appellant denied generally and specifically all matters set up by way of defense; pleaded the regularity of all the proceedings upon which the involved contract was executed, the regularity and validity of the advertisement, instructions to bidders, proposals, plans, and specifications, and facts which it claimed produced free and unobstructed bidding; denied the power of the new city officials to rescind the contract regularly made by the former administration and under which appellant claimed vested rights; denied that it had any adequate remedy at law by way of a suit for breach of contract or damages against the city; and alleged that its right to have the involved contract countersigned by appellant in his official capacity was a necessary prerequisite to the right of appellant to have its day in court on the merits of the contract, in the event the city of Dallas should thereafter refuse to perform same.

By his supplemental answer, appellee denied all of the material allegations contained in appellant’s supplemental petition.

The ease was tried to the court without a jury, and judgment rendered October 18, 1929, denying to appellant the relief sought. The proceedings had in the court below are properly before us for review and revision. There are no findings of fact or conclusions of law by the trial court. A general discussion of the major questions presented, without developing the individuality of the material propositions that will be thus covered, we think will not only shorten, but will contribute materially to the clarity of, the opinion ; hence that course will be pursued, and, in addition thereto, no general finding of material facts proven will be made, as such facts will be developed in reviewing this appeal.

The above allegations made by appellant in its original petition we find to have been established, and they are therefore adopted as part of our finding of material facts.

Under the above facts, appellant contends (a) that appellee had no discretion with respect to such contract/ other than to countersign same, as provided by the charter of the city of Dallas, and, upon his failure and refusal to perform what appellant terms a “ministerial duty” with respect thereto, mandamus was the only remedy it had to compel the performance of such duty; (b) that, since the contract was duly and regularly made, in accordance with provisions of the charter of said city with respect thereto, and specifically appropriated out of the funds “arising from the issuance and sale of suc-h bonds of the city, viz. incinerator bonds, the sum of $43,-000, or a sufficient amount of such funds as may be necessary, which funds are now in the city treasury, to pay the compensation to said contractor in accordance with the terms and provisions of the contract, appellee’s duty to countersign the contract was clear, and- he had no right to refuse; (e) that the fact the city of Dallas attempted to annul or rescind the contract with appellant did not give appellant an adequate legal remedy under the circumstances, in that, if the city did breach the contract, appellant could not, under the charter of said city, bring an action on the contract to test its validity, or to recover damages until appellee had countersigned same; (d) that the fact that the present mayor and board of commissioners of the city of Dallas- had attempted to rescind the contract by refusal (which refusal was admitted in evidence for the purpose of showing notice to appellee) did not constitute an excuse for failure upon the part of appellee to countersign the contract, since said refusal was passed more than a month and a half after appellee’s refusal and after appellant’s rights had become fixed, as of April 15, 1929.

If the case were before us solely upon the state of facts, supra, upon which said propositions are founded, we do not think appellant’s right to the remedy sought could be seriously questioned. Thus presented, ap-pellee would undoubtedly, in the matter of countersigning the involved contract), perform but a'ministerial act, as it would not in any respect involve the making of a contract or the approval of the terms and provisions of the contract as made. This is dearly established by the following charter provisions of said city, viz. article 3, § 1, “All power conferred on the city shall, unless otherwise provided in this charter, be exercised by a Mayor and four Commissioners, who together shall be known and designated as the Board of Commissioners”; article 3, § 11, “The Board of Commissioners shall be vested with the power' and charged with the duty of adopting all laws and ordinances not inconsistent with the Constitution and laws of this State touching every object, matter and subject within the purview of the local 'government instituted by this act”; article 14, § 9, “All bonds, contracts, or other instruments, requiring the assent of the City, shall be signed by the Mayor, or the acting mayor.” No such powers are conferred by the charter upon any other officer or officers of the city government.

The provision of said charter of prime importance in this litigation is article 14, § 42, having reference to contracts, and reads as follows: “No contract shall be entered into by the Board of Commissioners until after an appropriation has been made therefor, nor in excess of the amount appropriated, and all contracts shall be made upon specifications and no contract shall be binding upon the City unless it has been signed by the Mayor and countersigned by the Auditor, and the expense thereof charged to the proper appropriation; and whenever the contract charged to any appropriation equals the amount of said appropriation, no further contracts shall be countersigned by the Auditor.”

The language of said section 42, relating to the auditor, clearly indicates that, on a contract having been made by the board of commissioners, in the manner and form as authorized, in behalf of the city, the auditor shall, on finding that the expense of such contract has been charged to the proper appropriation, and that the contract does not exceed the amount of the appropriation, countersign the contract. This does.not involve such discretion as would make such act other than a ministerial one. Undoubtedly, before appellee could be compelled to perform the ministerial act here involved, and sought to be enforced, the duty rested upon appellant to show that a legal contract had been made with the city.

Laidlaw Bros., Inc., v. Marrs, State Supt. of Public Instruction, 114 Tex. 561, 273 S. W. 789, 791. In this case, Judge Pierson, speaking for our Supreme Court, used the following language: “After the contract had been legally executed, the act of the state board of education in reviewing the acts of the state textbook commission, in determining that relator had a valid contract, and in ordering it to be observed, concluded the matter of establishing the identity and validity of the contract, and was final. Nothing remained to be done in that respect. It was then subject to be performed under the statutes regulatory thereof, unless set aside by proper judicial action for sufficient legal reasons. Article 2909n, Vernon’s Ann. Civ. St. Supp. 1918. Rights under the contract had attached; the identity and validity of the contract had been legally determined, and the contract certified for performance at the hands of those charged by law with the doing of acts necessary to its performance. Contractual obligations become fixed, and cannot be recalled. Marbury v. Madison, 1 Cranch, 137, 2 L. Ed. 60.”

That the authority for the making of the contract required same to be made in conformity with the charter provisions of the city of Dallas, see Chrestman v. Tompkins (Tex. Civ. App.) 5 S.W.(2d) 257.

The following decisions from other jurisdictions are not only in support of, but in strict harmony with, the pronouncement made in the case of Laidlaw Bros. v. Marrs, supra, viz.: State of Kansas ex rel. Griffith, Attorney General, v. Board of Commissioners of Linn County, 113 Kan. 203, 213 P. 1062, from the syllabi of this case we quote: “Under a statute requiring a county attorney to indorse his approval upon a contract entered into by the county commissioners if he finds it to be valid, the question of its validity being one of law, hemay be required by mandamus to make such indorsement if the court determines it to be his duty, notwithstanding his own judgment to the contrary. And, if his term of office expires leaving such duty unperformed, it may be required of his successor.”

Commonwealth ex rel. Welsbach, Street Lighting Co. v. Larkin, City Controller, 216 Pa. 128, 64 A. 908, from which we quote: “If the contract be on its face regular, and the requirements of the statutes in connection therewith have been fully met, the controller is without choice in the matter. It becomes at once his duty in such cases to number the contract according to its date, charge it against the proper item of appropriation, and certify it accordingly. * * * It is, however, all predicated of a legal contract. Where statutory prerequisites have not been observed, the contract would be without validity, not a legal contract; and the withholding of the certificate in such case would not be a matter of discretion with the controller, hut a positive duty.” ,

State ex rel. Independent Asphalt, etc., v. Gill, 87 Wash. 201, 151 P. 498, 500, in which it was held: “The ordinance, we think, is not invalid because of want of proper statement therein on that subject. It is insisted that the courts should not control the discretion of the mayor touching the matter of approval of bonds of this nature. Counsel seem to assume that to sustain this judgment would be to interfere with the mayor’s discretion. We do not think such is the case, in view of appellant’s admissions as to the sufficiency of the bond here involved, and his refusal to approve it solely because of the claimed invalidity of this ordinance. There is no question of discretion here involved, but rather a pure question of law, arising upon conceded facts.”

We therefore hold that, under the law, for appellant to be entitled to the relief sought, it was necessary that it not only allege, but, in addition thereto, establish, that a legal contract had been made by the appellant and the city of Dallas, viz..: That all of the preliminary requirements of the charter of said city in reference to the making of the contract involved had been complied with.

The following decisions are cited by appellant as being in support of its contention that the trial court erred in refusing to award him the writ of mandamus: Smith v. Jackson (C. C. A.) 241 F. 747; Smith, Auditor Panama Canal v. Jackson, 246 U. S. 388, 38 S. Ct. 353, 62 L. Ed. 788 (being above case on appeal); Butterworth, Commissioner of Patents, v. U. S. ex rel. Richard Hoe et al., 112 U. S. 50, 5 S. Ct. 25, 28 L. Ed. 656; State ex rel. Mauldin v. Matthews et al., 81 S. C. 414, 62 S. E. 695, 22 L. R. A. (N. S.) 735, 128 Am. St. Rep. 919, 16 Ann. Cas. 182; State ex rel. North & South Railway Co. v. Meier, 143 Mo. 439, 45 S. W. 306; Hoover, Secretary of Commerce, v. Intercity Radio Co., 52 App. D. C. 339, 286 F. 1003; Larkin v. City of Allegheny (C. C. A.) 162 F. 611; State ex rel. Miller et al. v. Niven, City Attorney, 180 Wis. 583, 194 N. W. 30; Board of Commissioners of Morgan County et al. v. MacDougald Const. Co., 157 Ga. 595, 122 S. E. 317; Jones v. Bank of Cumming, 131 Ga. 614, 63 S. E. 36; Williams v. City of Stockton, 195 Cal. 743, 235 P. 986; Milburn v. Commissioners of Glynn County, 112 Ga. 160, 37 S. E. 178.

A careful examination of the authorities last above cited failed to disclose same to be sufficiently in point to direct the decision of the question in favor of appellant’s contention.

Was the contract legal, as above defined? If so, the trial court erred in refusing the writ of mandamus as applied for; otherwise its judgment was correct. Article 14, § 42, supra, in addition to its above-quoted provisions, reads as follows: “All contracts of whatever character, pertaining to public improvements, or the maintenance of public property of said City, involving an outlay of as much as five hundred ($500) dollars shall be based upon the specifications to be prepared and submitted to and approved by the Board of Commissioners, and after approval by the Board of Commissioners, advertisement for the proposed work, or matters embraced in proposed contract shall be made, inviting competitive bids for the work proposed to be done, which said advertisement shall be published in a daily newspaper not .less than five times. All bids submitted shall be sealed, shall be opened by the mayor in the presence of a majority of the 'Board of Commissioners, and shall remain on file in the office of City Secretary and be open to the public inspection for at least forty-eight hours before any award of said work is made to any competitive bidder. * * * Pending the advertisement of the work or contract proposed, specifications therefor shall be on file in the office of the City Secretary, subject to the inspection of all parties desiring to bid.”

The validity of said contract largely rests upon the legal effect of this charter provision. Erom this language it is clear that plans and specifications are required to be made and adopted prior to advertising for bids for the erection of permanent improvements by the city of Dallas, and that such plans and specifications must be complete within themselves, giving full details as to the character of improvement to be erected. Erom this it follows, as a natural sequence, that, if the plans and specifications are so general as to leave the matter of working details to mere conjecture and speculation on the part of bidders, they are not in compliance with said charter provision. Eor the purpose of safeguarding the interest of taxpayers, upon whom must fall the burdens of government, said charter provision requires that all contracts for public improvements, costing as much as $500, must be awarded and executed upon competitive bids based upon specifications prepared therefor and adopted by the board of commissioners prior to the advertisement for bids; therefore same must be viewed in the light of what was to be accomplished thereby. What is meant by the term “specifi.cations” — that is, what is logically and reasonably embraced within that term? In the case of Gilbert v. United States, 1 Ct. Cl. 28, 34, the term “specifications” is defined as follows: “As understood by the profession, not only the dimensions and mode of construction, but a description of every piece of material — its kind, length, breadth, and thickness — and the manner of joining the separate parts together. Bouvier defines them as ‘a particular and detailed account of a thing.’ Gwilt says they are ‘an -accurate description of the materials and work to he used and performed in the execution of a building.’ Worcester’s Dictionary: ‘A written instrument containing an exact and minute description, account, or enumeration of particulars.’ ”

The specifications in part provide:

“Plant No. 5 is to be designed and built as a complete new plant, on a site to be furnished by the City, with a capacity of sixty tons in twelve hours. Drawings furnished by the contractor and accompanying his bid on these specifications must be complete working drawings, showing in detail all parts of the plant, both as to design, dimensions and material, to enable the City Engineer to thoroughly canvass the bid and to protect the best interests of the City.”

Following are the material omissions from the involved specifications, viz.:

The provisions for a motor-driven fan is left blank, no size motor is specified.

“ ‘Plant No. 5, as called for in the general specifications, shall have one or more furnaces.’ The number of furnaces is not specified, nor are the dimensions thereof given; they shall merely be of sufficient size to cremate in twelve hours sixty tons of garbage.
“The size oí the building to house the equipment is nowhere mentioned in the specifications, neither is the thickness of the walls provided for, or how many windows, openings or approaches shall be provided for. * * * All flues shall be designed of sufficient size that the gases will have an unrestricted passage, and driven in blacklash when the furnaces are being charged. No size of flues is called for or designed * * *. A chimney not less' than 125 feet high is called to be erected at Plant No. 5. No inside dimensions of the chimney'are specified; merely specifying that it shall be of sufficient size to have a velocity through the chimney of not greater than 22 feet per second. The foundation for the plant is nowhere described as to how deep the ground shall be excavated and how the same shall be constructed. Provision is made for stairways, but it is not specified how many stairways shall be built. Doors are specified .to be of a certain character, but no provision is made as to how many shall be placed in the building. The bidder is called upon to ‘design, furnish, fabricate and deliver Incinerator Plant No. 5 with all furnaces, buildings, chimneys, equipment, appurte-' nances and accessorie's in place.’ ”

. It is disclosed by the record that each of the bidders for the construction of plant No. 5 made his own plans, drawings, and specifications, and submitted his bid thereon; that the working plans and drawings upon which the.award was made for the construction of incinerator plant No. 5 were prepared by ap pellant.

The instructions to bidders in part provide : “ * * * The Mayor and Board of Commissioners in comparing bids will not necessarily take the guarantees as given by the bidders, but from a study of the plant opera: tion as shown on the plans, arrive at a comparison between the different bids. Bidders shall carefully examine the site of the work and the adjacent premises on the various means of approach to the site and shall make all necessary investigations to inform themselves thoroughly as to the facilities for delivery, placing and operating the necessary plant, and the facilities for delivering and installing the equipment specified and handling material at the site, and to inform themselves thoroughly as to all the work and difficulties that may be encountered in the complete execution of all the work under the attached contract, in accordance with the specifications and drawings. Bidders are also -required to examine all data mentioned in the specifications, etc., as being on file in the office Of the Street Commissioner.

“No plea of ignorance of conditions that exist, or of conditions or difficulties that may be encountered in the execution of the work under this contract, as a result of failure to make the necessary examination and investigation shall be^accepted as an excuse for any failure or omission on the part of the Contractor to fulfill in every detail all of the requirements of said contract, specifications and drawings. * * * each bidder must submit with his bid complete working drawings covering the design on which the bid is placed, and they must be in full accordance with the specifications hereinafter set forth.”

From this it follows, as a natural result, that no complete specifications were drawn up and adopted by the board of commissioners prior to the advertisement for bids on said plant, and that the matter of supplying working specifications was entirely left to the discretion of the bidder. There was no chance for competitive bidding, as no two prospective contractors were required to bid or would bid upon the same character of improvement, as determined by the plans and specifications therefor, this for the want of definite specifications upon which to bid. That an award made on the basis of such bidding was invalid, in view of article 14, § 42, supra, we do not think is open to serious question. Therefore, we hold that the competitive bidding statute of -the city of Dallas was violated. Hannan v. Board of Education, 25 Okl. 372, 107 P. 646, 30 L. R. A. (N. S.) 214; Chippewa Bridge Co. v. Durand, 122 Wis. 85, 99 N. W. 603, 106 Am. St. Rep. 931; Ricketson v. Milwaukee, 105 Wis. 591, 81 N. W. 864, 47 L. R. A. 685; Fones Hardware Co. v. Erb, 54 Ark. 645, 17 S. W. 7, 13 L. R. A. 353; Little v. Southgate, 223 Ky. 735, 4 S.W.(2d) 711; City of Bluffton v. Miller, 33 Inch App. 521, 70 N. E. 989; Coggeshall v. Des Moines, 78 Iowa, 235, 41 N. W. 617, 42 N. W. 650; People v. Board of Improvement, 43 N. Y. 227.

A competitive bidding statute is fundamentally violated where the bidder is asked to furnish plans and specifications, and an award made under such circumstances is void. Ertle v. Leary, 114 Cal. 238, 46 P. 1; Board of Com’rs of Huntington County v. Pashong, 41 Ind. App. 69, 83 N. E. 383; Packard v. Hayes, 94 Md. 233, 51 A. 32; People v. Com’rs of Buffalo County, 4 Neb. 150; Jenney v. Des Moines, 103 Iowa, 347, 72 N. W. 550; Mazet v. Pittsburgh, 137 Pa. 548, 20 A. 693; 44 C. J. Par. 2191; McQuillin on Municipal Corpns. (2d Ed.) vol. 3, par. 1309, 1313; Dillon on Municipal Corporations (2d Ed.) vol. 5, par. 807. To the same effect, see R. C. L. vol. 19, par. 357; also Texas Transp. Co. v. Boyd, 67 Tex. 153, 2 S.W. 364; Ashby v. James (Tex. Civ. App.) 226 S.W. 732.

The plans and specifications on file for the construction of said plant were, as above designated, materially incomplete, and there-' fore not in compliance with the requirements of article 14, § 42, supra; hence competitive bidding for the construction of said plant was not had.

44 Corpus Juris, par. 2191, reads as follows: “Where competitive bidding is required by law, specifications inviting bids must be sufficiently definite and precise to afford a basis therefor, and free from restrictions, the effect of which would be to stifle competition. If it is so loosely awarded as to furnish no standard or basis for comparison, it will invalidate any and all bids made thereunder. Specifications, after their approval in the manner required by statute, cannot be altered except in immaterial details, unless the bids have been invited voluntarily by the city in the absence of statutory requirement and there is no evidence of fraud. The invalidity or nonexistence of specifications will invalidate bids purported to be made thereon.”

McQuillin, Municipal Corporations (2d Ed.) vol. 3, par. 1309, being in part as follows: “In order to attain competitive bidding in its true sense, proposals for bids must be invited un-’ der circumstances which afford a fair and reasonable opportunity for competition. Consequently, it is essential that bidders, so far as possible, be put on terms of perfect equality, so that they may bid on substantially the same proposition and on the same terms.”

Paragraph 13, Id., in part reads: “In order that unrestricted competition may be had, it is necessary that some standard be adopted for the guidance of all bidders. Where, therefore, the plans and specifications are left to the discretion of the individual bidder and submitted with his bid, the effect is to stifle competition, and is therefore a violation of the requirement to'let the- contract to' the lowest bidder.”

To the same effect, see Dillon on Municipal Corporations, supra; R. C. L. vol. 19, par. 357. While not directly in point, the following decisions in a measure support our position in reference to the validity of said plans and specifications, in re this particular defect: Texas Transp. Co. v. Boyd, 67 Tex. 153, 2 S.W. 364; Ashby v. James (Tex Civ. App.) 226 S.W. 732.

The involved contract being void upon and from the face of the record leading up to and including the alleged execution of same, did the board of commissioners have the authority to rescind and annul the order of date April 15, 1929, passed by the former board of commissioners, approving the involved contract, on the ground that said contract was illegal and therefore not a binding-obligation upon said city? The rescinding order is of date, June 5, 1929, and is in part as follows: “That the bids and proposals of the Superior Incinerator Company for the' remodeling and reconstruction of the North Dallas incinerator and the construction of a new plant known as Plant No. 5, when taken in connection with the specifications prepared by the City of Dallas and the notice, and advertisement to bidders issued thereupon, are violative of the competitive bidding provision of the charter of the City of Dallas, and more particularly of Art. 14, sec, 42, by the Superior Incinerator Company is unlawful and invalid.”

We have concluded that said query must be answered in the affirmative; this because the involved contract not being a valid and binding legal obligation on the part of the city of Dallas, its board of commissioners not only had the authority, but it was their duty, to enter said rescinding order in the discharge of their commission to properly represent and protect the interest of said city, viz.: In the instant case, the prevention of an imposition upon the city through a contract made in violation of its charter powers. This power ahd duty, we think, is inherent in the board of commissioners of the city of Dallas or any other governing body of a municipality.

In the case of Burke v. Gormley, 79 N. J. Law, 259, 80 A. 483, it was held: “The first question, therefore, is whether the new board had the right to review the action of the old board, and it is insisted on.the part of the prosecutor that the original resolution approving the claim and ordering it paid was a final adjudication. It is true there are cases in other jurisdictions which hold that a proceeding of that kind is final, but I think I ought not so to hold, in the absence of any binding decision in this state. It is settled by a decision of onr Court of Errors and Appeals that a taxpayer may enjoin the payment of an unjust bill by a city, although the city authorities are willing to pay it. Lodor v. McGovern, 48 N. J. Eq. 275, 22 A. 199, 27 Am. St. Rep. 446. The effect of that decision is to deprive the action of the city authorities of the element of finality which is relied upon in this case by the relator; for, if a taxpayer may bring a bill in equity for an injunction to restrain the payment, until the right thereto shall have been established by a suit at law, it is a necessary conclusion that the city authorities themselves would have the right to review their o’wn prior action in case their approval of the bill was wrongful.”

In the reported case, the proceedings annulled did not involve an illegal, but only an erroneous, act, and therefore only voidable; nevertheless it was held that the governing body of the city had the authority to review the action of its predecessor. State ex rel. Bayer v. Funk, 105 Or. 134, 199 P. 592, 209 P. 113, 118, 25 A. L. R. 625, page 632, from .which we quote, a's being directly in point, the following: “By the passage of the repealing ordinance, the authority of the auditor to draw the warrant was withdrawn, and, if the relator had a legal claim against the city, he had a right to enforce the payment thereof by an action at law. Our statute expressly, directs 'that the writ shall not be issued in any case where there is a plain, speedy, and adequate remedy in the ordinary course of the law. But we can see no reason, and none has been suggested, which would prevent the city council, after the passage of an ordinance which allows a claim jhnd directs its payment, from repealing such ordinance at any time before the payment had been made. It would seem that such power must necessarily be inherent in the city council in order to prevent, in any proper case, an imposition upon the city through fraud, accident, or mistake.”

Furthermore, the contract being void, there was nothing to be countersigned, same not having any potential existence in law, either as a moral or legal obligation upon the city of Dallas. The effect of said rescinding order, in part, was that, at the time this suit was filed and tried, the authority of ap-pellee to countersign the contract as the auditor of the city of Dallas had been revoked, and the original and revoking orders, having been enacted by the same governing body, were therefore of equal dignity. Ap-pellee could not obey both of said orders; a choice between the two had of a necessity to be made. This determination appellant seeks bo compel appellee to make in its favor, notwithstanding that in doing so he would be required to exercise discretion in selecting the order he would obey. Walker v. Barnard, 8 Tex. Civ. App. 14, 27 S.W. 726; State ex rel. Bayer v. Funk, supra; First National Bank v. Cook, 43 Neb. 318, 61 N. W. 693. Therefore appellee could not be required by mandamus to act under the original order, as his authority to act thereunder had bedn revoked prior to the institution of this suit; and, upon establishing that such authority had been revoked, he made out a complete defense to the writ.

Appellant, on assuming to enter into the contract with the city of Dallas, as alleged by it, was charged with notice of the charter powers under which the ¿overning body of the city was authorized to act in making said contract, the same as if said powers had been incorporated therein, and that, in order to make a valid contract, all of the prerequisites of article 14, § 42, supra, were necessary to be complied with in accordance with said charter provisions. Therefore appellant knew, at the time said contract was assumed to be executed, that the certain essential prerequisites herein noted had not been, a,nd. would not be, complied with. Therefore the order canceling .the involved contract did not, in any respect, disturb vested rights existing in .favor of appellant, as such rights can find no abiding place in a .void contract. State ex rel. Bayer v. Funk, supra. We quote therefrom, and adopt as a correct rule of law applicable to the facts of this case, the following: “* * * When all of the provisions of the charter have been complied with, the drawing of a warrant by the auditor in payment of a legal, enforceable claim is a mere ministerial act; but, in a ease like this, if the facts are as alleged in the answer, for the auditor to draw a warrant, whether the council pretended to authorize him to do so or not, would be a gross dereliction of duty upon Ms part.”

We therefore hold, that the court did not err in refusing to grant the writ of mandamus sought by appellant, and that the judgment of the court below should be and it is in all things affirmed.

Affirmed.

On Appellant’s Motion for Rehearing.

A careful review of appellant’s motion discloses that only one of the grounds present new matter, viz.: “This Honorable Court erred in holding that the specifications is a matter of fact depending upon the character of the thing to ba done; and in tMs case, where a process of incineration is required, which is a patented process, the City could not prepare specifications such as required by this Honorable Court, without involving the City in patent infringement suits or without requiring the City Engineer to design a process for incineration that would be wholly new, unheard of, and never tried out or proven successful.”

However, as .it is disclosed by the record that neither appellant nor appellee alleged that the process of incineration under which appellant proposed to erect the incinerator plant was patented, or that the use of a patented process in the construction of the plant was contemplated by the parties to the involved contract, we are not called upon to discuss this ground of the motion. Nevertheless, in view of the fact that the matter thus presented may be interrelated with the questions discussed in our original opinion, we make the following observations in reference thereto:

The charter of tjhe City of Dallas contains no provision as to the manner in which its board of commissioners may secure the right to use any patented article or process; nor is it to be gathered from the pleadings or the instrument, the execution of which is sought to be enforced, that, in the construction of the incinerator plant, the use of a patented process was contemplated. But, conceding that the scheme for the construction of said plant contemplated the use of a patented process, said board of commissioners had full authority to secure the privilege of psing same before proceeding with any of the material preliminary steps required by the charter provisions of said city to be observed in order to complete for it a binding contract. This course was not adopted. The board of commissioners submitted their plans in general terms, and invited bids from those generally engaged in such construction work for the furnishing and installing of all necessary machinery and appurtenances, and for the erection of a building, as a part of the incinerator plant, all to be embraced within one bid. The case of Ricketson v. Milwaukee, 105 Wis. 591, 81 N. W. 864, 867, 47 L. R. A. 685, involved a similar state of facts, with the exception that the charter of the city of Milwaukee provided the mariner in which its board of public works, under proper authority from the council, could secure the right to use any patented article or process; which provision was not observed by the contract involved in that suit. However, we think the following portion of the opinion in that case is a comprehensive and appropriate review of said ground of appellant’s motion and demonstrates that same is not well founded, viz.:

“The indefinite character of the specifications, and the absence of plans had the effect of' stifling all competition. Each bidder was called upon to make a proposal, resting largely upon his own Judgment, with substantially no guide as to details. No one could tell which was the lowest bid, because no 'two would be on the same basis. That fact alone condemns the action taken. Of course, the court must take into consideration what was sought to be accomplished. At the same time it must consider that it cam. only be accomplished in the way pointed out by the charter. If it were true, as assumed, that the different methods of garbage cremation are held under letters patent, the first and the business like plan would be for the council to fix upon some one of the different systems. If the system adopted contemplated the use of certain makes of furnaces, which were necessary to its successful operation, there is no perceivable reason why the city may not bargain for them, with the right to use the process. Having fixed upon a definite scheme, the preparation of appropriate plans and specifications for the plant could be gone ahead with, and bidders secured for erection as pointed out. It is admitted that the right to construct the garbage crematory should be thrown open to the public to bid, so that the city shall get the freest competition; but it is argued that this cannot be secured by the adoption of any given system; that it can only be secured by the lines of policy pursued in 'this case. As already demonstrated, there can practically be mo‘ competition when the bidder is left to hisi own will or judgment in matters material to the scheme. Neither is it demonstrated that there is any such necessary connection between the furnaces used and the buildings to inclose them as to prevent the preparation of proper plans and specifications, and a competitive letting of the contract for their construction. If there is any such relation, the record in this case fails to disclose it. Permitting us to judge from the specifications printed in the record, it would seem that the cost of the buildings for the plant will cover quite a la'rge part of the total expenditure. It is not for us to say whether the plan adopted in this case, or some other one, might lead to the best result for the city. We need only to determine whether the line pursued is within charter -limitations or not. * * * It is equally certain that it has not complied with the other provision as to the preparation of plans. If the city has not a sufficiently definite idea of what it wants to cause proper plans and specifications to be made, then it must wait until further information can be secured, or 'the plan has become so far developed as to be more than a long-felt want.”

Said motion is therefore refused.


source: Caselaw Access Project

author: WILLSON, O. X

license: Public Domain

text:
    BOWEN v. FIRST STATE BANK OF FATE.
    No. 3982.
    Court of Civil Appeals of Texas. Texarkana.
    March 24, 1931.
    Rehearing Denied April 2, 1931.

      H. M. Wade, of Rockwall, for appellant.
    E. D. Foree, of Rockwall, and Carl G. Miller, of Royse City, for appellee.
   WILLSON, O. X

(after stating the case as above).

While confusion has existed in the decisions of courts in this state as to the rule applicable in determining questions like the one here presented, it seems to be now settled, Benson v. Fulmore (Tex. Com. App.) 269 S. W. 71; City Nat. Bank v. Sales Co. [Tex. Civ. App.] 297 S. W. 563; Davisson v. Eastland County [Tex. Civ. App.] 6 S.W.(2d) 782; Long v. Long [Tex. Civ. App.] 269 S. W. 207, in harmony with the holdings in other jurisdictions, 1 C. J. 45, that “the pendency of a prior action or suit for the same cause, between the same parties, in a court of competent jurisdiction, will abate a later action or suit either in the same court or in another court of the same jurisdiction.”

It has been generally held the rule “applies only where plaintiff in both suits is the same person, and both are commenced by himself, and not to eases' in which there are cross suits by a plaintiff in one suit who is defendant in the other; in other words, that where,” as here, “the party defendant in the prior suit is plaintiff in the subsequent suit, the first suit can not be pleaded in abatement of the second.” 1 C. J. 82; Id. 45.

The correctness of the qualification stated of the rule referred to is (we think with good reason and on good authority) questioned in Long v. Long (Tex. Civ. App.) 269 S. W. 207. We are inclined to think the holding in that case is correct, and probably would follow it were it necessary in disposing of this appeal to choose between it and conflicting holdings in cases cited in the opinion of the court in that case.

But, as we view the record before us, it did not appear that the cause of action set up in the instant suit was in all respects the same as that, set up in appellant’s pleading in the justice court, and on that ground it must be held that the court below erred when he sustained appellee’s plea and dismissed appellant’s suit. 1 C. J. 61, 62, 66, et seq. It appears in the agreed facts set out in the statement above that the counterclaim filed by appellant in appellee’s suit against him in the justice court was for items, not described, aggregating $199.75, whereas this suit by appellant against appellee was for items described, aggregating $246.90. It is obvious, therefore, that this suit is not the same as the former suit so far as it is for items representing the difference of $47.15 between the sum appellant sought to recover in that suit and the sum he Sought to recover in this one.

And on another ground it must be held that the action of the court below was" erroneous. Appellee’s plea should not have been sustained unless it appeared appellant could obtain in the suit in the justice court the full relief available to him in this suit. 1 C. J. 72. That he could not do that is plain, for the simple reason, if there was no other, that the justice court was without power to hear and determine a suit involving a greater sum than $200. Dixon v. Watson, 52 Tex. Civ. App. 412, 115 S. W. 100.

The judgment is reversed, and the cause is remanded to the court below for a new trial.


author: LEVY, J.

text:
    CITY OF ATHENS v. EVANS.
    No. 4002.
    Court of Civil Appeals of Texas. Texarkana.
    April 2, 1931.
    Rehearing Denied April 9, 1931.
    Wynne & Wynne, of Athens, for appellant.
    Bishop & Holland, of Athens, for appellee.
   LEVY, J.

The appellee owned lots 1 and 2 in block 19 of “the Town Donation” in the city of Athens, and he and his mother resided in the residence that had been erected upon the lots. The appellee’s two lots are bounded on the north by East College street and on the east by South Carroll street. The residence faces on East College street. In the rear of the two lots was an alley. He brought this suit alleging “that defendant has paved said street (meaning South Carroll Street) and so changed the flow and drainage of the waters on and along said street so as to cause same to flow on and across his said lots; that' from and'since December, 1927, even after an ordinary rainfall, the water from said street flows upon and remains upon said lots, flooding his garage, chicken yards, and garden, and destroying vegetation growing thereon, thereby not only causing this plaintiff great material damage, inconvenience and worry, but also creating disagreeable odors which have a tendency and will cause sickness and impair the health of this plaintiff and his mother. That the defendant is maintaining said street and the drainage of the waters therefrom in such manner as to cause and has caused permanent injury to plaintiff’s said lots and premises.”

The city of Athens entered demurrer and exceptions to the petition, and specially pleaded general denial and the bar of the statute of two years limitation (Rev. St. 1925, art. 5526).

The plaintiff, by supplemental petition, replied'-to the plea of limitation, in the way of estoppel, that, in substance, the governing body of' the city promised the plaintiff the cause of the injury to his property would be remedied, and he relied on such promises to remedy the cause of the injury complained of.

At the time of the dedication of the addition some years ago, there was donation to the city of the alley and South Carroll and East College streets. In 1926 the city of Athens, under the approved plans of a civil engineer, constructed contrete pavements on the streets in the city, including South Carroll and East College and the alley in the rear of the plaintiff’s lots. The grade of South Carroll street was lowered, and the pavement, curbing, and guttering were laid. The paving was all completed and finally accepted by the city on January 18, 1927, and has remained unchanged from that date up to the time of the trial. Plaintiff testified that, before the concrete pavement and gutters were put down on South Carroll street, his property was not overflowed, but that, after the construction of the same, the drainage water from time to time was forced down South Carroll street and in the alley and over upon his lots, flooding his garage and yard, and depositing sand and causing injury to the lots. The cause of the flooding and sanding is explained by the plaintiff’s witnesses as due to the changing of the usual direction of the flow and drainage of the waters and in not constructing gutters and curbing on South Carroll street of sufficient build and depth to confine and properly carry off such waters. There is evidence by the city to the contrary and that it was not feasible to construct the pavements and gutters in a manner otherwise than done. The engineer testified that “the trouble is that the adjoining property (plaintiff’s lots) is lower than the. alley.”

There was a trial before the court without a jury, and a judgment was entered in favor of the plaintiff for $500.

The point on appeal is that of whether or not the cause of action was entirely barred by the statute of limitations of two years. The plaintiff testified:

“No water went on my property before the construction of the paving.
“Since the paving, the water come down the alley and on to my property.
“No, sir, I did not have that trouble (with the water) prior to this paving. It was perfectly dry. Tes, Sir, it has been continuously having that effect during wet weather since we have had the paving there.
“Tes, Sir, when that paving project was started, before they put the surfacing on there, I took it up with the Mayor. Tes, Sir, I knew what it was going to do to me then. Tes, Sir, I knew from the time it was built that this damage was going to happen to me. Tes, Sir, it has been the same damage to me from that time up to now. Tes, Sir, to the best of my recollection, that pavement was accepted by the city on January 18th, 1927. Tes, Sir, from and since that time that damage has been there. Tes, Sir, as it -stands now and as it was constructed then, in my opinion, it is a permanent damage, without something is done to take care of it. Tes, Sir, that permanent damage has continued from and after that time.”

The plaintiff further testified:

, “I expect three or four loads of sand has been washed in there since the paving. * * * I did. not have that trouble (with water) prior, to this pavement. It has been continuously having that effect during very wet weather since we had the paving there. It has washed a big bank of sand in there (the garage) in the last two years since the paving was first there, I judge about that time. The injury to my land has been more apparent since the successive rains. We have had some heavy rains in the last two years — lots of them. * * * All of that wash has come in the last two years. * * * In the last two years the water coming down there has injured the value of my property.”

There was evidence showing considerable depreciation of the general value of the property by reason of the injuries caused by the alleged construction of the street improvements. In the evidence, the trial court was warranted in concluding, as we must assume he did, that, although the damage to the property had been continuous since the construction of the street pavement, yet the greater part of the damage had occurred within the two years next before the filing of the suit. The petition claimed injury from December, 1927. In this view, there is evidence showing damages rightfully recoverable to at least the amount of the trial court’s verdict. The following cases fully support the trial court’s ruling: City of Houston v. Parr (Tex. Civ. App.) 47 S. W. 393; City of Houston v. R. Co., 26 Tex. Civ. App. 228, 63 S. W. 1056; City of Houston v. Merkel (Tex. Civ. App.) 153 S. W. 385; Missouri, K. & T. R. Co. v. Anderson (Tex. Civ. App.) 194 S. W. 662; City of Greenville v. McAfee (Tex. Civ. App.) 230 S. W. 752, 755.

Appellant points out that there was a violation of rule 66 of the district court. The judgment of the court does not so show, and there is no bill of exception indicating it. The review on appeal cannot he predicated on the bare certificate of the court reporter that stenographic notes were taken at the February term.

The judgment is affirmed


author: WALKER, J.

text:
    BEAUMONT, S. L. & W. RY. CO. v. STUBBLEFIELD.
    No. 2062.
    Court of Civil Appeals of Texas. Beaumont.
    March 17, 1931.
    Rehearing Denied March 25, 1931,
    Stevens & Stevens, Andrews, Streetman, Lo-gue & Mobley, W. L. Cook, and Jas. E. Kilday, all of Houston, for appellant.
    R. E. Biggs, of Liberty, for appellee.
   WALKER, J.

This was a suit in county court of Liberty county by appellee against appellant for damages for killing his mule. The mule was killed by appellant on or about the 1st day of September, 1929, within the switching limits of Sandune, a station upon its line of railroad, at a point where appellant was not required to fence its right of way. The mule was found dead about eight feet from a public road crossing, which crosses its switching limits, south of the railroad track and on the side next to the city of Houston. Appellee pleaded against appellant that in approaching Sandune its agents, in operating its train that killed the mule, were guilty of negligence in failing to blow the whistle and ring the bell, as required by law, and that each of these acts of negligence was the proximate cause of the death of the mule. The jury, having found these issues in favor of appel-lee, assessed his damages at $200, and judgment was accordingly entered in his favor.

LI-4] Without reviewing the testimony, it is clear that the verdict convicting appellant of negligence in failing to ring the bell and blow the whistle has abundant support. Appellant’s main point is, conceding negligence, the findings on the issue of proximate cause have no support. On this issue we quote as follows from the testimony of the engineer of the train that killed the mule, taking this statement from appellant’s brief:

“Mr. Lambert, a witness in behalf of the defendant, testified as follows: That he was a locomotive engineer for the defendant railroad company,' and recalls- striking a mule about the time it was claimed this mule was killed. That he left Houston 12:30 A. M. and struck this mule about 3:30 A. M. That the train he was pulling was a medium heavy train, and that he blew for the first crossing and rang the bell for a full distance of SO rods. That he saw the mule ábout 8 feet from the track. That he was not on the track when he first saw him. That he was about 600 feet from the mule when he first saw him. The train was running about 30 miles an hour, and he was going about 20 miles per hour when he struck the mule which he saw about 600 feet ahead of him. That the mule was approaching the railroad track on the south side and got on the track and turned back to the right. The train was going east and going at 20 miles per hour. I could stop the train in about a quarter of a mile, and maybe a little less, if the train was in good condition. That he could stop the train in about five to six hundred yards;' and that the first time he blew the whistle was about 1300 feet from the crossing, at the whistle signs which are put up 1300 feet from the crossing; and that he blew the whistle and rang the bell at every crossing. That he had been an engineer for ten years.
“On redirect examination the witness testified as follows: When I first saw the mule he was not on the track ; and that if he could have stopped the train he would have done so, after he saw the mule get on the track.”

Briefly summarized, this witness said that the mule was about 600 feet ahead of him when he first saw it; that the mule was about 8 feet from the track; the mule was not on the track but was approaching'the track and “got'on the track and turned back to the right * * * if I could have stopped the train I would have done so after I first saw the mule get on the track,” and “the train was running about 30 miles per hour and he was going about 20 miles per hour when he struck the mule which he saw about 600 feet ahead of him.” Notwithstanding the admission by the engineer that he saw the mule approach the track, get on the track, and “turn back to the right,” he failed to blow the whistle or ring the bell, as found by the jury. It was the duty of the engineer, having discovered the presence of the mule on or near the railroad track, to exercise reasonable care to prevent Injuring it. While appellee did not plead against appellant the issue of discovered peril, he dids plead that the failure to blow the whistle and ring the bell constituted actionable negligence. The admissions of the engineer were evidentiary on that issue, and, we think, clearly raised the issue of proximate cause.- This conclusion has support in the holding of Mr. Chief Justice Hightower, speaking for this court, in Houston, E. & W. T. Ry. Co. v. Hall, 219 S. W. 526, 529:

“Can it be said that, even if the whistle had been blown or the bell rung at a point 80 rods distant from the crossing and the bell kept continuously ringing until the engine reached the crossing, the mule would not have heard such warning signals and been frightened away from the crossing?”

The following additional authorities fully support this conclusion: St. Louis, B. & M. Railway Co. v. Knowles (Tex. Civ. App.) 180 S. W. 1146, 1147; Texas Electric Railway Co. v. Reese (Tex. Com. App.) 280 S. W. 179; St. Louis S. W. Railway Co. v. Cox (Tex. Civ. App.) 248 S. W. 1101; Houston & T. C. Railway Co. v. Holbert (Tex. Civ. App.) 182 S. W. 1180; Railway Co. v. Willis, 17 Tex. Civ. App. 228, 42 S. W. 371; Houston & T. C. Railway Co. v. King (Tex. Civ. App.) 160 S. W. 647, 648; Houston & T. C. Railway Co. v. Garrett (Tex. Civ. App.) 160 S. W. 111; International & G. N. Railway Co. v. Bandy (Tex. Civ. App.) 163 S. W. 341. For additional authorities see Texas-Southwestern Digest, Railroads, Key No. 443; Michie’s Enc. Dig., Railroads, Injuries to Animals by Railroads, E, Signals.

• If we correctly understand appellant’s position, the point it made was that proximate cause In this case could have been established only by an affirmative showing on the part of appellee that the agents of appellant discovered the mule on the track in time to avoid injuring it by checking the speed of the train or by stopping the train. Thus appellant says:

“If Lambert’s testimony (its engineer) fails to show the relative positions of the train and mule when the mule went on the track, then the plaintiff has failed to establish proximate cause.”

■ In support of this proposition appellant cites our opinion in International-Great Northern Railway Co. v. Coulter, 27 S.W.(2d) 272. Appellant’s proposition is not the law, nor did we so hold in the Coulter Case. We merely held in that case, on its peculiar facts, that the issue of proximate cause was not raised because the evidence failed to show that the animal got upon the track at such time and in such manner as to render it possible for the operatives of the train to check the speed of the train in time to avoid a collision. In that case we were merely determining the law of its peculiar facts. However, a careful reading of the opinion reflects the same conclusion we have reached here, that is, that the failure to ring the bell or blow the whistle may, under pertinent facts, constitute actionable negligence.

In its brief appellant brings forward a long list of cases, saying that an affirmance of this case would put us in conflict with the cases thus cited. The leading case relied upon by appellant in support of its proposition is Gulf, C. & S. F. Railway Co. v. Anson, 101 Tex. 198, 105 S. W. 989, by the Supreme Court, which was reviewed by Judge Kee in Houston & T. C. Railway Co. v. Garrett, supra, and clearly distinguished from the case before us and all similar cases. We say further that we have reviewed all of appellant’s authorities and find nothing in any of them conflicting in the least with the conclusion above expressed.

By bills of exception Nos. 1 and 3 appellant complains that the court erred in excluding certain testimony over its objection. These bills of exception are defective and present nothing for review, in that they do not show the objections urged and sustained. Skeeters v. Hodges (Tex. Civ. App.) 270 S. W. 907, 6 syllabus.

Affirmed.


author: McClendon, c. j.

text:
    DAMON v. STATE.
    No. 7596.
    Court of Civil Appeals of Texas. Austin.
    March 18, 1931.
    Rehearing Denied April 8, 1931.
    Holland & Holland and George O. Gaines, Jr., all of Houston, for appellant.
    R. L. Bobbitt, Atty. Gefi., W. N. Arnold, Jr., and Sloan Blair, and T. S. Christopher, Asst. Attys. Gen., and Geo. P. Willis, of El Campo, for the State.
   McClendon, c. j.

Appeal from a judgment of the county court in condemnation proceedings awarding the state a right of way for road purposes across the farm of appellant.

The sole ground upon which the appeal is based is the contention by appellant that the undisputed evidence shows that a portion of ¡the land embraced in the condemnation proceedings was a cemetery and was therefore dedicated to a public use and not subject to condemnation.

The controlling facts follow: The land in suit is a strip 100 feet wide across the south side of appellant’s property. The statutory requirements leading up to the condemnation proceedings were compiled with and an agreement with appellant upon the value of the land could not be reached. Whereupon commissioners were appointed who assessed the value. Appellant was not satisfied with the assessment, and appealed to the county court, where for the first time he raised the issue that a portion of the property constituted a cemetery. This issue he raised by cross-action, in which he sought to enjoin the proceeding. The record shows that at the request of appellant ¡his cross¡-action was taken up in the nature of an exception, a hearing had thereon before the court, at which appellant and several other witnesses testified, and the court denied the prayer for injunction. Thereafter the cause was tried on its merits before a jury and, as the judgment recites, “the matters in controversy were submitted to the said jury by the court at the request and by agreement of counsel in five special issues, as follows.” The first of these issues was whether any part of the land sought to be condemned was “now used for cemetery purposes,” which the jury answered in the negative. Just why the prayer for in- ■ junction was heard before the court without a jury and thereafter the cemetery question was submitted as a fact issue to the jury, the record does "not disclose. The evidence was not altogether the same upon the injunction hearing as upon .the case before the jury, only appellant testifying in his own behalf in the latter hearing upon the cemetery issue.

In so far a£ the trial upon the merits is concerned, appellant is precluded from raising the issue that there was no evidence sufficient as a matter of law to support a finding in favor of the state upon the cemetery issue, because as shown from the above quotation from the judgment, that issue was submitted by the court at the request and by agreement of counsel. Hanrick v. Hanrick, 110 Tex. 59, 173 S. W. 211, 214 S. W. 321; Independent Shope Brick Co. v. Dugger (Tex. Com. App.) 285 S. W. 599; National Life & Accident Ins. Co. v. Bunton (Tex. Civ. App.) 10 S.W.(2d) 733; Woodward v. McMillan (Tex. Civ. App.) 34 S.W.(2d) 357.

Independently of this holding, we hold the evidence sufficient to support a finding that whatever may have been the character of use of the property for cemetery purposes at one time, that use had been abandoned by appellant by dedicating the property to an inconsistent use, and therefore, in so far as he is concerned, that issue cannot now be raised.

The testimony of appellant in this regard was in substance that prior to his purchase of the farm, which occurred some 23 years before the trial, the county had owned it and had used a portion of it, including a part of the strip in question, as a cemetery to bury paupers and convicts. There were about 23 graves at the time of appellant’s purchase. Subsequently thereto appellant had permitted as many as three persons to be buried near -the old graves without making any charge; just when these burials took place or the location of the graves was not sliown. The testimony of three other witnesses upon the injunction hearing corroborated appellant as to the burials by the county prior to appellant’s ownership. The following additional quotations are taken from appellant’s testimony :

“The land is used for pasturage for horses, cattle and hogs. The land used for graves is not fenced off from the balance of the property.” “The land, upon which the graves have been located, has been set aside by me as land used for burial purposes; although there has been no setting aside or separating in any manner the land upon which the graves are located from the remainder of the tract. I do not know of any dedication of any part of my land for cemetery purposes, and I know of no plat or formal setting aside of any portion of this land ever having been made by any person.” “I do not sell burial privileges to anyone and this is not a public cemetery in which lots are for sale; but I have in the past and I will in the future permit any poor person who cannot . buy a cemetery lot to inter the remains of their dead on my land. No one has a right to enter upon any portion of my land without my consent. There has been no reservation of any right upon the part of any person or for the benefit'of any person that I know of in the deeds under which I hold title.”

A number of witnesses testified that they had known the land for many years and never heard of any part of it being used for cemetery or burial purposes. Some of these witnesses had been over the proposed right of way recently and failed to find any evidence of any cemetery or even of a single grave.

From the foregoing testimony we think the conclusion was fairly warranted, if not irresistible, that appellant at the time of the trial and for many years prior thereto had not only not recognized any dedication of the property for cemetery purposes, but had repudiated whatever dedication there had been by a use wholly inconsistent with the sacred purposes of sepulture. Appellant contends that once property is dedicated to cemetery uses, it so remains so long as it contains the remains of the dead. There are some expressions in the authorities from which such rule might be inferred. See Barker v. Oil Co. (Tex. Civ. App.) 219 S. W. 874; Peterson v. Stolz (Tex. Civ. App.) 269 S. W. 113; Magnolia P. L. Co. v. Leach (Tex. Civ. App.) 17 S.W.(2d) 471; 9 Tex. Jur. pp. 12 et seq. This language, however, is either too broad or is subject to limitations. The correct rule, we think, is embraced in the following quotation from the Missouri case of Campbell v. Kansas City, 102 Mo. 326, 13 S. W. 897, 899, 10 L. R. A. 593:

“All expressions declaring an eternal and perpetual use should be accepted with qualifications which arise from the nature of the subject-matter, and from necessities of the public good. No human body committed to the earth preserves forever either identity or trace of form. No monument placed above it is proof against the corroding touch of time. In the progress of the ages, both body and monument fade away. * * * if every portion of ground which has been made a burial place for man should be devoted in perpetuity for burial uses, the most populous and cultivated districts, of the world, where millions upon millions of the human race have sunk into the earth in the countless ages of the past, would- have to be abandoned as a dwelling-place or means of support to the living inhabitants of the present day. The devotion of land to any particular use must be subject to the changes and vicissitudes which time may bring to it. The use of a graveyard is twofold,- — for the purpose of continuous burials, and for the purpose of preserving the remains and memory of those who have been buried. The original uses can be continued only by the public continuing to bury, or by continuing to protect the remains already buried, and to preserve the identity and memory of the persons who have left them. * * * The public may cease to bury in the dedicated ground whenever it pleases. It may also refuse or neglect to either erect or preserve any monuments to indicate the identity of those already buried, or to give and continue to the place the character and name of a grave-yard. When this happens the original use terminates, and the fee vests in the original donors, or their legal representatives, free from it.”

The above evidence we think sufficient basis for the conclusion that appellant by his own acts of neglect and adverse user of the property for his own purposes had permitted all of the physical distinguishing marks and characteristics of the property as a place of sepulture to be obliterated, and in so far as he could do so by his own acts had worked an abandonment of that use. We conclude therefore that he. is not in position to assert a former use to which the property may have been dedicated as a defense to the state’s asserted right of condemnation.

The trial court’s judgment is affirmed.

Affirmed.


author: ORITZ, O.

text:
    WELLS et al. v. STONEROCK.
    No. 5711.
    Supreme Court of Texas.
    April 1, 1931.
    See also (Tex. Civ. App.) 1 S.W.(2d) 425; (Tex. Com. App.) 12 S.W.(2d) 961.
    Jasper & Cruse, Taylor & Irwin, and William M. Cramer, all of Dallas, and Elton Cruse, of Beaumont, for plaintiffs in error.
    R. L. Stennis, of Dallas, for defendant in error.
   ORITZ, O.

This suit was filed by J. T. Wells and W. M. Collie against J. W. Stonerock. The Court of Civil Appeals [24 S.W.(2d) 94] holds that the petition in the district court is in thé nature of a bill of rey lew-. We think that the petition cannot be so treated, as one of the parties to the judgment sought to be revised is not made a party to this suit. Certainly a judgment cannot be revised in a suit in the nature of a bill of review unless all parties interested in the subject matter of the suit, which in this instance Is a judgment, are made parties to the proceeding.

It seems from the petition in this ease that on September 9, 1924, J. W. Stonerock recovered in the district court of Dallas county, Tex., the following judgment:

“On this the 9th day of September, A. D. 1924, came on to be heard the above styled and numbered cause and plaintiff appeared by his attorneys and announced ready for trial, and the defendants, though having been duly served and answered herein, failed to appear at the trial either in person or by attorney. Thereupon came a jury of good and lawful men, to-wit: R. B. Prather and eleven others, who, after being duly sworn and impaneled to try said cause, and after hearing the pleadings, the evidence and charge of the court retired to consider their verdict and returned into court upon instruction from the Court, the following verdict;
“ ‘We, the jury, find for the Plaintiff against the' defendants for the amount sued for in plaintiff’s petition, together with legal interest thereon from the first day of January, 1921, aggregating the sum of $504.55, and for a foreclosure of plaintiff’s lien, and for partition of the property described in plaintiff’s petition. R. B. Prather, Foreman of the Jury.’
“It is therefore considered by the Court from said verdict of the Jury and from the uncontradicted evidence that plaintiff, J. W. Stonerock, do have and recover of the defendant, J. H. Garmon, the sum of Five Hundred and Four and 55/100 dollars ($504.55), with interest from this date at the rate of six per cent per annum and costs of court.
. “It is further ordered and decreed by the court that plaintiff have a foreclosure of his lien against all defendants on one certain seven passenger Chalmers touring car, Model 32, Dicense 12089, as same existed at the institution of this suit February '11, 1921, against J. FI. Garmon’s one half interest in said car, and'being the same car replevied by defendant, J. H. Garmon, by repleyy bond executed by said J. H. Garmon, as principal, and W. M. Collie, and J. T. Wells, as 'sureties, of date February 18, 1921, approved February 21, 1921, and filed herein February 23, 1921, for the principal sum of One Thousand Dollars ($1,000.00), to secure said sum of $504.55, and interest and costs of court, and that an order of sale herein issue to the Sheriff or any Constable of Dallas County, or of any county where such property may be found, directing him to seize and sell the same as under execution in satisfaction of this judgment; and if said property cannot be found or if one half of the proceeds from such sale be insufficient to satisfy this judgment, then the officer executing this order shall make the money, or any balance thereof remaining unpaid, out of any other property of said defendant, as in case of ordinary execution.
“And it further appearing to the court that said above described car was owned equally by said J. W. Stonerock and X H. Garmon and at the date of replevy was of the value of Five Hundred Dollars and was replevied by said defendant, J. H. Garmon who executed his replevy bond as above set out in the sum of One Thousand Dollars, with W. M. Gollie, and J. T. Wells as sureties on said replevy (bond, it is therefore ordered, adjudged and decreed by the court that said plaintiff J. W. Stonerock, have and recover of and from the defendants, J. H. Garmon, and W. M. Gollie and J. T. Wells, the sureties on his replevy bond, jointly and severally, the sum of Six Hundred Seven and 10/100 Dollars ($607.10), with interest from this date at the rate of six per cent per an-num and costs of court, for which he may have his execution.
“It is further ordered and decreed by the court that plaintiff recover of and from the defendant J. H. Garmon, one-half interest in the above described car and one certairt promissory note given by S. O. Lewis and wife payable to J. H. Garmon in the sum of Six Hundred Dollars ($600.00) and secured by a lien on a house and lot in the State of Arizona and one note given by W. O. Goff to the said X W. Stonerock and J. H. Garmon in the sum of Four Hundred Dollars ($400.00) and secured by a mortgage on a Ford automobile in the state of Arizona, and for a partition and distribution in equal parts of said car and said notes and 'any proceeds therefrom by and between said X W. Stone-rock and J. H. Garmon.
“It is further ordered by the court that the defendants J. H. Garmon, E. B. Owen, H. B. Taylor and Champion Garage and Machine Shop, take nothing. For all of which let execution and writs of partition issue.”

In the case at bar Wells and Gollie seek to enjoin the collection of the above judgment against them on the ground that it is void, and, in the alternative, they seek to revise and correct it so as to make it conform to'the verdict of the jury.

We have already disposed of the question as to the sufficiency of the petition to adjudicate the right to revise. We are therefore only left to decide one issue, which is whether the pleadings of the plaintiffs are sufficient as against a general demurrer to raise the issue as to whether the judgment is void. After a careful reading of the petition, we have reached the conclusion that, as against a general demurrer, the petition states a cause of action.

An examination of the judgment discloses that the first decreeing clause awards -Stone-rock a judgment against X H. Garmon in the sum of $504.05. The next decreeing clause awards Stonerock a foreclosure of a lien-against a one-half interest in one “Chal-mers touring car,” described as the car re-plevied by Garmon as principal and Gollie and Wells as sureties. The next succeeding paragraph of the judgment states that it appears that the above car was owned equally by Stonerock and Garmon and was worth $500 at the date of replevy, and then proceeds to award Stonerock a judgment against Garmon as principal and Collie and Wells as sureties on the replevy bond in the sum of $607.10.

When we attempt to analyze the judgment and harmonize the several clauses, we are absolutely unable to arrive at its meaning. It awards, in the first instance, a judgment against Garmon for $504.55. In the next instance it awards a judgment against Gar-mon for $607.10. We are absolutely unable to ascertain from the judgment whether the $504.55 is a part of the $607.10, or whether the latter sum is in addition to the first sum. • Furthermore, we are at a loss to understand from the statements of the judgment itself why Stonerock recovered a judgment against Garmon in the second instance for more than . he did in the first instance, or why judgment was recovered against the sureties for more than the value .of the car. The judgment states upon its face, “And it further appearing to the court that said above described car * * * on the date of replevy was of the value of Five Hundred & No/100 ($500.00) Dollars,” and then based on this finding awards a recovery of $607.10.

The judgment discloses that Garmon and Stonerock owned the above car equally. Also the judgment discloses that only the one-half interest of Garmon was foreclosed on to secure the payment of the judgment for $504.-55, yet the matter of the other- one-half interest which belonged to Stonerock is left in the air. A reading of the judgment as a whole leaves the impression that the car was sequestrated by virtue of an asserted lien on one-half interest thereof. If this bé true, the only conclusion to be drawn from the' judgment is that the replevy bond cover only a one-half interest. In spite of this the sureties on the bond are held for even more than the entire interest. We think that there is no end to be attained in pursuing this discussion further. The judgment is utterly unintelligible on its face. It may be that when the entire judgment roll is considered in connection with the judgment that we can understand it,. but the petition is certainly sufficient as against a general demurrer to present the issue of unintelligibili’ty to the trial court.

We here wish to state that we find no fault with the rule announced in Olayton v. Hurt, 88 Tex. 59-5, 32 S. W. 878, cited and quoted from by the Court of Civil Appeals. Also we think the other authorities cited by that court which are in harmony with Clayton v. Hurt are still the law of this state. However, we do not think that these eases are authority to hold that a petition which demonstrates that a judgment is utterly unintelligible upon its face is subject to a general demurrer just because the trial court had -jurisdiction of the case in the first instance and the parties thereto.

The pleadings in the instant case plead the judgment and plead that it is void for certain reasons. Such a pleading is good against a general demurrer.

It may be that when the entire judgment roll, including the original pleadings, are in evidence, the judgment may be understood.

The judgments of the Court of Civil Appeals and district court ought to be reversed, and the cause remanded to the district court for a trial upon the merits.

CURETON, ’ C. J.

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


author: SHORT, C.

text:
    ROBISON et al. v. WHALEY FARM CORPORATION.
    No. 5714.
    Supreme Court of Texas.
    April 1, 1931.
    Pirkey & Atchley, of New Boston, for plaintiffs in error.
    Leachman & Gardere, of Dallas, and J. 8. Crumpton, of Texarkana, for defendant in error.
   SHORT, C.

This lawsuit arose out of the attempt of the commissioners’ court of Bowie county to lay out a public road between two points about six miles in length, a small portion of which crossed land belonging to the defendant in error, and was commenced by the latter in the form of an application for an injunction which was granted by the district court of Bowie county. Upon a trial before the court, without the intervention of a jury, wherein findings of fact and conclusions of law were filed by tbe trial judge, the injunction was dissolved, but,' upon appeal to the Court of Civil Appeals at Texarkana, a supersedeas bond having been given in the meantime, the judgment-of the district court was reversed and judgment rendered in favor of the defendant in error, perpetuating the injunction. 25 S.W.(2d) 242. The plaintiffs in error have been granted a writ of error.

The first assignment of error is to the effect that the Court of Civil Appeals erred in holding, as it did, that the commissioners’ court, which assumed upon its own motion, without any application having been filed, to institute proceedings, having for their ultimate purpose the establishment of a public road across lands belonging to individuals, necessarily including the condemnation of such lands for public- use, was without lawful authority to do so.

The Court of Civil Appeals did not discuss any other question after having reached the conclusion that the commissioners’ court was without power of its own motion to establish a public road, but, having reached this conclusion, it very properly reversed the judgment of the district court, and rendered a judgment in favor of the defendant in error. While we have reached the conclusion that the judgment of the Court of Civil Appeals should be affirmed upon other grounds than those upon which it based its decision, yet the holding of the Court of Civil Appeals that a commissioners’ court has no authority to lay out a public road, upon its own motion, is a matter of so much public importance that we think the question should be discussed and decided.

Article 5, section 18, of the Constitution, provides that: “The county commissioners’ court, shall exercise such powers and jurisdiction over all county business, as is conferred by this constitution and the laws of the state, or as may be hereafter prescribed.” Article 2351, R. S. 1925, is as follows: “Each commissioners court shall * * * lay out and establish, change and discontinue public roads and highways,” etc.- Article 6703, among other things, provides that: “The commissioners court shall order the laying out and opening of public roads when necessary.” It also provides that the commissioners’ court, when it shall be deemed expedient, shall discontinue or alter any public roads under certain circumstances not necessary to mention, but which are specifically stated in this article.

The establishment of highways is primarily a function of government which belongs to the state, and the right to establish them resides primarily in the Legislature, which can do anything with reference thereto which is not prohibited by the Constitution. Robbins v. Limestone County, 114 Tex. 345, 268 S. W. 915. The Legislature has declared in so many words that, whenever the commissioners’ court shall deem it necessary to do so, it has the power to lay out a public road. The other part of this article has reference to the discontinuance of altering of a road already public, and the court is given authority to do this, when it shall deem the sarnie to be expedient, under certain restrictions named in the article, and which are not involved in this lawsuit. In Haverbekken v. Hale, County Judge, 109 Tex. 106, 204 S. W. 1162, the facts show that the controversy grew out of an order made by the commissioners’ court on the application of others, though it also appears that the application for the road was not signed by the requisite number of freeholders. Chief Justice Phillips in writing the opinion, in answer to certified questions, lays great stress upon three words in article 6860 of the R. S. of 1911, which do not appear in the revision of 1925, holding that these words especially limited the powers of the commissioners’ court to the provisions of that article, in so far as the same related to'second and third class-roads, in one of which classes is the road involved in this proceeding. Since the revision of 1925 does not contain these words, and since they were construed before said revision occurred, we conclude that the revisors of the Code of 1925 had this construction of the statute in view when they eliminated from the previous statute these words, to wit, “As hereinafter prescribed.”

Judge Williams, speaking for the Court of Civil Appeals in Kopecky v. Daniels, 9 Tex. Civ. App. 305, 29 S. W. 533, discusses the law as it existed previous to the Revised Statutes of 1895", and reaches the conclusion that the commissioners’ court had the power of its own motion to lay out public roads when necessary, though it also had the power, under certain restrictions, to do so, upon the application of private persons. Chief Justice Phillips, in his opinion, written after the Statutes of 1895 had been adopted, shows incidentally that this identical question was not involved, and that what he said referred to the necessary procedure where private persons had made an application to the court to open a public road, while the opinion rendered by Judge Williams shows the question was directly involved. We think the opinions in these cases are correct and in entire harmony when each is considered in the light of its facts. However, should we assume that the words, “As hereinafter prescribed,” under the old law, did confine the power of the commissioners’ court to the provisions of the law, following article 6860, R. S. 1911, we feel, in view of the Constitution and of the statutory law now in force (Rev. St. 1925, art. 6703), relating to the question under discussion, justified in concluding that the commissioners’ courts do have power of their own motion, when the necessity in their opinion exists, to order the laying out and opening of a public road of the second and third class, as well as of the first class, subject to the rights of owners, however, to erect gates across a third-class road. While the commissioners’ court has this power to act upon its own motion, it also has the power to act in the premises upon the application of free holders to lay out and open a public road, subject, of course, to the provisions of the law with reference thereto. We therefore think that the Court of Civil Appeals erred in holding that the commissioners’ court of Bowie county did not have the power of its own motion to institute the proceedings which were instituted.

While we think the commissioners’ court had this power, we are also of the opinion that the manner in which the record shows it exercised it, when strictly construed, as, in duty bound, the courts must do, did not have the legal effect to deprive the defendant in error of its property, and,of course, did not have the legal effect to appropriate this property to the use of the public for road purposes. The trial judge, among other things, found that the commissioners’ court appointed five individuals as a jury of view, only three of whom took the oath of office, and only two of whom actually viewed the land sought to be appropriated, and none of whom were actually served with a notice, which the law required the clerk to issue, and the sheriff to serve. It does appear, however, that the third member, who did not view the land, and who signed the report with two other members, had a general personal knowledge of the land sought to be appropriated.

The power thus to appropriate lands of an individual for the use of the public, by the commissioners’ court, is undeniable, but, in order to do so, the statutes with relation thereto must be complied with. A landowner cannot prevent the exercise of this power, but he can demand that the exercise thereof be in strict conformity with the provisions made by the Legislature. Since, by the Constitution and statutes of this state, the district court has supervisory control over the- commissioners’ courts, an equitable suit for injunction brought in the district court is a direct attack upon all the proceedings of the commissioners’ court, with reference to establishing a public road and taking land for that purpose. Crawford v. McDonald, 88 Tex. 626, 33 S. W. 325; Haverbekken v. Hale, supra.

Where it appears, as it does in this case, affirmatively, that some of the members of the jury of view did not serve, and also that, while three of'the members took the oath of office and signed the report filed with the commissioners’ court, only -two of the five members actually traversed the land sought to be appropriated, it is clear that the provisions of the law were not strictly followed in these particulars. Besides, the record also discloses that there are other provisions of the law which we think are mandatory and which were not followed, but which we do' not think it necessary to discuss, in view of the disposition we shall make of the case.

In McIntyre v. Luker, 77 Tex. 259, 13 S. W. 1027, 1028, the Supreme Court off this state, among other things, said: “The statutes providing for the establishment of public roads rest upon the right of eminent domain, and the well-established doctrine that the undisputed interest and will of the citizen must yield to the necessities and convenience of the public. In authorizing the appropriation of individual property for the public use, the constitution and • laws have prescribed certain conditions and procedure which must be strictly observed and performed.” Where the law requires the jury of view to meet, after the members have been notified of the meeting, and where it appears that there has been an omission to give this notice to all the members, and only a part of the members of the jury of view met and participated in the proceedings, this situation renders null and void what a part of the members of the jury of view did. The mere attendance of a quorum, under such circumstances, does not constitute a legal body, but every member has a right to be present and participate in what shall be decided to be done. McQuillen on Municipal Corporations, vol. 2, § 603, p. 403; Elliott, Roads and Streets, 218, 219; Lewis on Eminent Domain, par. 605. In Vogt v. Bexar County, 5 Tex. Civ. App. 272, 23 S. W. 1044, an opinion by the Court of Civil Appeals, wherein a writ of error was refused, discusses at great length the necessary steps which must be taken by the commissioners’ court before its proceedings become legally sufficient to deprive an owner of private property of his ownership and to appropriate the same to the public use. The trial judge found that the road, as ordered opened, would cross a strip of land owned by the defendant in error, and yet, in the next paragraph, also found that this road had its beginning as a road used by the general public for all purposes, since the year 1888 and probably previous to that time. Taking these two findings- of fact, in view of the whole record, we necessarily reach the conclusion that the trial judge did not intend to find that the strip of land in controversy had been acquired from the owner by prescription. The general rule is that, before a highway can be established by prescription, it must appear that the general public, under a claim of right, and not by mere permission of the owner, used some defined way, without interruption or substantial change, for at least the longest period of limitation prescribed by statute in an action Involving the title to land. Elliott, Roads and Streets, p. 137; Cunningham v. San Saba County, 1 Tex. Civ. App. 480, 20 S. W. 941.

Since the record shows without dispute that only three of the members of the jury of view were ever sworn, and that only two of the three who had been sworn actually participated in viewing the land sought to be appropriated, and since we have reached the conclusion that these' are mandatory provisions of the law, while we think the ground upon which the Court of Civil Appeals reversed the judgment of the district court and rendered the case in favor of the defendants in error is not a correct one, yet we are of the opinion that the judgment of the Court of Civil Appeals should be affirmed, and it is so ordered.

CURETON, O. J.

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