author: CHRISTIAN, J.

text:
    CUPP v. STATE.
    No. 14237.
    Court of Criminal Appeals of Texas.
    May 20, 1931.
    W. C. Witcher, of Borger, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is selling intoxicating liquor; the punishment, confinement in the penitentiary for one year and one day.

R. J. Smith and his son, E. E. Smith, were special officers under employment by the sheriff of Hutchinson county. Under the terms of their employment they were to aid the officers in detecting violations of the liquor law.' They testified, in substance, that ■ they went to appellant’s home, where R. J. Smith told appellant he desired to purchase a pint of whisky; that appellant told them to drive some distance from his home and wait for him; that in a short time appellant appeared and delivered a pint of whisky to R. J. Smith, for which Smith paid him $3; that in accordance with a previous arrangement, a deputy sheriff and some other officers appeared on the scene and arrested the parties immediately upon the delivery of the whisky to Smith; that all of the parties were placed in jail; that as the witnesses were being released from jail appellant returned R. J. Smith’s money to him and asked him to tell his wife to go to the place where. he delivered the whisky and destroy it; that they informed the officer as to the whereabouts of the whisky, and went with him to secure it. A deputy sheriff of the county testified to having gone to the place where the whisky was sold. He said he made the arrest immediately upon seeing appellant deliver the whisky to Smith.

Appellant did not testify in his own behalf, but offered his sister, who testified that the parties came to appellant’s home on the night in question and asked him to take a drink with them, and that appellant drove away from the house with said parties.

The term of court at which appellant was convicted convened September 22, 1930, and adjourned November 1, 1930. No order extending the time for filing bills of exception .is brought forward. The only bill of exception in the record was filed January 27, 1931, which was 87 days after the day of adjournment. Article 760, subd. 5, Code of Criminal Procedure, allows 30 days after the day of adjournment of court for filing bills of exception, provided the trial term is less than 8 weeks. There being no order in the record extending the time, and the bill not having been filed within 30 days after the adjournment of court, we are compelled to hold that it was filed too late. Davis v. State (Tex. Cr. App.) 28 S.W.(2d) 794; Mann v. State, 102 Tex. Cr. R. 210, 277 S. W. 1085.

Under the count of the indictment submitted to the jury appellant was charged with selling intoxicating liquor. The verdict of the jury found appellant guilty of the offense of selling intoxicating liquor. The judgment and sentence recite that appellant has been convicted of possessing intoxicating liquor for the purpose of sale. The judgment and sentence are reformed in order that it may be shown that appellant has been convicted of the offense of selling intoxicating liquor.

As reformed, the judgment is affirmed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the judges of the Court of Criminal Appeals and approved by the court.


source: Caselaw Access Project

author: HAWKINS, J.

license: Public Domain

text:
    JORDAN v. STATE.
    No. 14406.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    T. B. Bartlett, of Marlin, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for forgery, punishment being confinement in the penitentiary for two years.

The record is before this court without statement of facts or bills of exception. In this condition nothing is presented for review. .

The judgment is affirmed.


text:
    JACKSON v. STATE.
    No. 14408.
    Court of Criminal Appeals of Texas.
    May 27, 1931.
    J. W. Culwell, of Amarillo, for appellant.

      Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for possessing intoxicating liquor for the purpose of sale; punishment being confinement in the penitentiary for 1 ½ years.

The record is before' this court without statement of facts or bills of exception. In such condition nothing is presented for review.

The judgment is affirmed.


author: WILLSON, O. J.

text:
    RICHEY v. STANLEY et al.
    No. 4016.
    Court of Civil Appeals of Texas. Texarkana.
    May 1, 1931.
    Rehearing Denied May 7, 1931.
    Carney & Carney, of Atlanta, for appellant.
    Bartlett & Harvey, of Linden, for appellees.
   WILLSON, O. J.

(after Stating the case as above).

The contention here is that the finding of the trial court’that the truck was delivered to the constable within the meaning of article 6853, R. S. 1925, was without evidence to support it. The only testimony with refer- - ence to the matter was that of appellee H. F. Stanley as a witness that within ten days after the judgment was rendered against him he “got in his ear and went and offered the truck” to Richey and to the constable; that Richey said, “No, he did not want it (the truck) and would not have it” ; and that the constable said they would “get the money out of” him (the witness), and did not have to take the truck; that he (the witness), at all times after making such offers, had “stood ready and willing to tender it back,” and was still “ready and willing to do so.”

Certainly the testimony specified did not show a delivery of the truck to either Richey or the constable. Therefore the contention ought to be sustained and the judgment reversed, unless it 'Should be said that the testimony specified showed such a tender of delivery of the truck as excused the failure to actually deliver It.

There was no evidence showing where the truck was at the time, or afterward; said H. F. Stanley testified he offered it to Richey and the constable, and there was no evidence showing that they (Richey and the constable) would not have accepted delivery of the truck had actual delivery thereof been' tendered at a proper place at a time when the truck was present and in a condition to be so delivered. The rule of law applicable seems to be that “a ‘tender’ requires not merely the readiness and ability to perform or pay, but also the actual production of the thing to be delivered over and an offer of it to the persons to whom the tender is to be made.” Bane v. Ry. Co., 171 N. C. 328, 88 S. E. 477; St. George’s Society v. Sawyer, 204 Iowa, 103, 214 N. W. 877; Jarecki Mfg. Co. v. Fleming, 130 Okl. 95, 265 P. 628, 57 A. L. R. 802; Childs v. Wilkinson, 15 Tex. Civ. App. 687, 40 S. W. 749; Price v. McCoy, 1 White & W. Civ. Cas. Ct. App. § 181, page 72; Hartman v. Stark, 99 Or. 596, 195 P. 1117; 38 Cye. 143, 144. At page 143 of the work last cited it is said:

“In order to make a valid tender of either money or chattels, the thing to be tendered must be actually produced and offered to the party entitled thereto, a mere offer to pay being insufficient; and the tenderer must place the money or property in such a position that his control over it is relinquished for a sufficient time to enable the tenderee, if he so desires, to reduce it to possession by merely reaching out and laying hold of the money or thing; and a person is not bound to say whether or not he will accept the money or thing until it is produced.”

As we view the record, the judgment is wrong. It will be reversed, and judgment will be rendered here denying appellees the relief they sought.


author: COBBS, J.

text:
    KROEGER et ux. v. RISHER.
    No. 8602.
    Court of Civil Appeals of Texas. San Antonio.
    April 22, 1931.
    C. C. Carsner, of Victoria, for appellants.
    K. D. Hall and E. G. Brown, both of Refugio, for appellee.
   COBBS, J.

This suit was instituted by R. L. Risher, appellee, against J. H. Kroeger and his wife, Mary Kroeger, appellants, upon a cause of action arising out of an oral contract between appellants and appellee. Appellee alleged that on or about March 1, 1930, he contracted with appellants to drill a water well on the premises where they now reside. That under the terms of the contract appellee was to perform all labor and furnish all material for drilling and completing the well, and for such labor he was to receive a reasonable salary, and appellants were to pay for all piping and other equipment 'to be used in equipping said well, the total cost amounting to $253.-40. Appellee alleged that appellants breached their contract with him, and that he was compelled to employ an attorney to prosecute and maintain his suit, at an expense of $50. He prayed for judgment in the sum of $303.-40, being the amount of the contract, $253.40, plus $50, attorney’s fees.

The answer of the defendants was by general denial and special answer. In their answer they set up the fact that about June 9, 1927, defendant J. H. Kroeger entered into a verbal agreement with appellee to drill an ar-tesian well, stating the terms of the contract; that said well was drilled, for which service the defendant paid Risher, the plaintiff, ■ $1,-080 for drilling; and purchased curbing to the amount of $378, and one screen of the value of $45, aggregating $1,503; that at the time of the payment for said first well, plaintiff agreed should the first well not be a success to either return the money or drill and complete another well for defendant J. H. Kroe-ger ; that the first well was not a success, and that the well which constitutes the subject of this suit was drilled to comply with plaintiff’s said agreement, but was never completed according to the specifications agreed to by plaintiff and defendant so as to furnish ' the quantity of water as guaranteed by plaintiff, nor did it supply the needs of defendant, which plaintiff had undertaken to supply, and defendant brings cross-action.

This suit is in respect to the second well. Though a very simple fact case there are three assignments of error.

The jury answered at the time of the payment upon the first well there was an agreement as to a second well, and that R. L. Risher agreed to drill another well in accordance with his contract, should he fail as to the first well. S'o the matters herein grow out of the drilling of the second well, never completed.

In this case under the numerous points submitted to the jury the findings were in favor of appellee, and, as the same were jury questions, we feel no disposition to interfere with them.

We think the case has been fairly tried and justice administered. The findings are approved, and the judgment is affirmed.


author: FUNDERBURK, J.

text:
    SIMPSON v. GRISSOM.
    No. 860.
    Court of Civil Appeals of Texas. Eastland.
    April 24, 1931.
    Rehearing Denied May 29, 1931.
    Turner, Seaberry & Springer, of Eastland, for appellant.
    Grisham, Patterson & Grisham, of East-land, and Clyde Grissom, of Haskell, for ap-pellee.
   FUNDERBURK, J.

J. E. Grissom brought suit against Mrs. Elizabeth Simpson to recover upon a promissory note for $11,550, interest and attorneys’ fees, and to foreclose a deed of trust lien upon land situated in Haskell and Stonewall counties. At the time the note was no't due, unless by reason of certain facts, plaintiff had the option to accelerate the due date and thus put the defendant in default. The defendant answered by general demurrer, general denial, and by way of cross-action pleaded that usurious interest had been exacted in the transaction in which the note was given, by reason of which the provision in the note for the payment of interest was void, and that $500 usurious interest had been paid, and a recovery of the statutory penalty in the sum of $1,000 sought. The prayer was as follows: “Wherefore, premises considered, defendant prays the court that she go hence without day and recover her costs. That in the event it should be determined by this court that the defendant is indebted to plaintiff in any sum whatever, then that she have judgment can-celling said note insofar as interest thereon is concerned, and that she have judgment against plaintiff for the sum of One Thousand ($1000.00) Dollars, being double the amount of the usurious interest exacted by plaintiff from this defendant, and for general and special relief.”

After defendant filed her answer and cross-action, plaintiff took a nonsuit and thereafter answered the defendant’s cross-action, among other things by special exceptions, praying judgment of the court as to whether the cause of action asserted in the cross-action was barred by the two-year statute of limitation. The court sustained the special exceptions, and, the defendant declining to amend, the cross-action was likewise dismissed. From the judgment of dismissal, the defendant below has appealed.

Appellant construes the action of the court in sustaining the special exceptions to raise two questions: (1) Was the cause of action asserted in appellant’s cross-action to cancel the note and deed of trust barred by the two-year statute of limitation? and (2) Was the-cause of action asserted in her croSs-aetion for the recovery of á penalty barred by the two-year statute of limitation? Ap-pellee contends that the cross-action asserted no cause of action for cancellation of the note and deed of trust, or any part thereof, and we believe that this is in accord with the proper interpretation of the pleadings.' The defendant’s pleading tendered no issues as a basis for the adjudication by the court of any liability of the defendant upon the note sued on, or whether her land was subject to the lien at first asserted in plaintiff’s petition. Such being the case, that subject-matter of the suit was withdrawn with plaintiff’s non-suit. Defendant only prayed cancellation of the interest upon the notes “in the event it should be determined by this court that the defendant is indebted to the plaintiff in any sum whatever.” When, by plaintiff’s action in withdrawing his suit, the court was no longer empowered to determine whether defendant was indebted to plaintiff, nothing was left for the prayer to operate upon. The only condition upon which the relief was prayed did not and could not then exist. We are therefore of opinion that the cross-action asserted a cause of action, if any at all, only for the statutory penalty.

By the allegations of the cross-action the, $500 claimed to constitute a payment of usurious interest was paid more than two years before the filing of the cross-action. On the face of the record there appears to be presented a case where a plea of limitation may be presented by special exception. Appellant insists that the pleadings disclosed that Mrs. Simpson was, at the time the payment was made, a married woman, and under the disability of coverture, by reason of which the pleading did not disclose that the claim was barred. We have concluded, however, that the pleadings cannot properly be construed as showing that Mrs. SimpSon was under the disability of coverture at the time the alleged payment of usurious interest was made. As pointed out by appellee, the only reference as to whether or not appellant is a married woman is in the deed of trust shown as an exhibit to plaintiff’s petition, in which appellant is referred to as a feme Sole. The certificate of acknowledgment recites that appellant is a feme sole. The only reference to the fact that appellant was ever a married woman is in the third paragraph of her answer and cross-action, wherein she recites that “on January 10th, 1928, this defendant, together with her former husband, P. P. Simpson, Secured a loan from plaintiff,” and “that at the time of securing said loan this defendant, with her former husband, P. P. Simpson, made, executed and delivered unto the plaintiff their joint note,” and “that in addition to the payment of' said $500.00 in cash, this defendant, together with her former husband, P. P. Simpson, executed their joint note,” and “that said sum of $500.00 was paid by check drawn upon the Haskell National Bank of Haskell, Texas, and signed by the former husband of this defendant, to-wit, P. P. Simpson, who was acting for and on behalf of this defendant in said transaction.” (Italics ours.)

We think, without doubt, if the sufficiency of the pleading to State a cause of action had been dependent upon whether or not it alleged as a fact that, at the time in question, Mrs. Simpson was a married woman, we would be compelled to hold the pleading insufficient. Coverture being a defensive matter necessary to be specially pleaded where it does not affirmatively appear, we are of opinion that the special exceptions were properly sustained.

There is another reason not urged which would indicate that appellant was in no event injured by the judgment of the court below. The cross-action, we think, was subject to general demurrer. The statute providing for the recovery of a penalty for usurious interest (R. S. 1925, art. 5073) by its own terms only applies where a greater rate than 10 per cent, “shall have been received or collected.” The allegations of the cross-action show that the amount of the loan was $8,000, and the amount “received or collected” by plaintiff was $500. Regardless of the fact that a contract may provide for the payment . of usurious interest, a right of action for the statutory penalty does not exist unless more than 10 per cent, has been actually “received or collected.” Gunter v. Merchant (Tex. Com. App.) 213 S. W. 604.

Being of opinion that there was no error in the judgment of the trial court, and that it should be affirmed, it is accordingly so ordered.


author: FLY, C. J.

text:
    KNIGHT et al. v. BARTON et al.
    No. 8614.
    Court of Civil Appeals of Texas. San Antonio.
    May 6, 1931.
    Rehearing Denied May 27, 1931.

      Osee Fristoe, of Harlingen, for appellants.
    Jno. C.'Myrick and Homer Maxwell, both of Harlingen, for appellees.
   FLY, C. J.

This suit was instituted by appellants against appellees to recover the sum of $1,-023.16, as against B. P. Barton, $111.69 as against the Texas Cotton Co-operative Association, and $667.90 against Sam Botts and First National Bank of Harlingen. The claims are based on a sum of money alleged to be due by Barton as rental for thirty-nine acres of land for the year 1930. The other claims grew out of sales of cotton by Barton which had been raised on appellants’ land on which they claimed a landlord’s lien.

The cause was tried without a jury and judgment for the claim of $1,023.16 rendered against Barton, and $111.69 against Texas Cotton Co-operative Company, and judgment for the same amount rendered against Barton in favor of the association. Judgment was rendered in favor of Botts and the bank on the ground that appellants had waived their landlord’s lien.

Barton had been a tenant of Mrs. Knight, who claims the land as her separate estaté, for eight years, up to and including 1930. He had exercised absolute control over the land, raising, gathering, and selling the crops without molestation or interference upon the part of Mrs. Knight. She admitted this and said it did not matter to her what he did • with the crops, so long as he paid her rent. She did not even know what crops .he was raising. The rent was fully paid up to 1930, and, when Barton failed to remit the rent for that year, in August She, for the first time, went to the valley and instituted this suit.

Botts pleaded facts showing waiver of rights under the landlord’s lien, and he and Mrs.' Knight fully sustained the pleadings. She had for eight years permitted Barton to ■handle the crops as though they were not subject to any lien and the community, without let or hindrance, dealt with him without having any notice that Mrs. Knight would or could at any time object to the disposal of the farm products. She is assuredly estopped now from holding Botts and the bank liable for any cotton purchased from Barton.

There was no error in the judgment as to Botts and the bank. The cotton association has presented no objection to the judgment against it.

.There is no merit in this appeal, and the judgment is affirmed.


author: HIGGINS, J.

text:
    CARTER v. GOLDGRABER.
    No. 2539.
    Court of Civil Appeals of Texas. El Paso.
    May 14, 1931.
    Harmon & Harmon, of Dallas, for appellant.
    Mayer & Rowe, of Fort Worth, for appel-lee.
   HIGGINS, J.

The appellee brought this suit against the appellant to recover upon a promissory note alleged to have been executed by the latter, and to foreclose a vendor’s lien securing its payment. The defendant answered by general demurrer, general denial, and plea of non est factum. The record discloses the case was called for announcement on May 26, 1930, at which time plaintiff announced ready for trial, and, though defendant’s attorney was present, no announcement was made by the defendant. The next day the court again called for announcement, and the plaintiff announced ready, but the defendant did not appear either in person or by his counsel. A jury having been previously demanded by the defendant, such jury was impanelled and sworn, and the jury, having heard the pleadings and the evidence adduced, was peremptorily charged by the court to return a verdict for the plaintiff in the sum of $1,431.10 and for foreclosure of the vendor’s lien described in the petition, which verdict was returned, and judgment rendered in accordance therewith.

On June 2, 1930, the defendant filed a motion for new trial, which was later amended, in which a meritorious defense was set up and an effort made to excuse the failure of the defendant and his counsel to be present at the trial. To the motion affidavits of the two attorneys representing the defendant were attached undertaking to excuse the failure of the defendant and themselves to be present when the case was called on May 27th.

The order overruling the motion discloses the court heard “the evidence adduced thereon” and was of the opinion and found that the motion should he overruled. The only error assigned is to the action of the court in overruling such motion. The record contains a statement of facts showing the evidence adduced upon the trial proper, but does not contain the evidence adduced in support of the motion for a new trial.

In the absence of the evidence heard by the court upon the motion, this court cannot say that in overruling the motion the trial court abused the discretion which is vested in it in passing upon motions for new trial where judgment has been rendered against a party in the absence of himself and his attorney.

The brief of appellant also contains a suggestion of fundamental error, which is without merit.

Affirmed.


author: SMITH, J.

text:
    P. J. WILLIAMS INDUSTRIES, Inc., v. FIRST STATE BANK OF LYFORD et al.
    No. 8616.
    Court of Civil Appeals of Texas. San Antonio.
    May 6, 1931.
    Rehearing Denied June 3, 1931.
    Jesse G. Foster, of-Raymondville, for appellant.
    A. B. Crane, of Raymondville, and L. D. Hartwell, of Greenville, for appellees.
   SMITH, J.

Antonio Trevino sold three bales of cotton to P. J. Williams Industries, appellant herein, for the sum of $154.96, and the latter gave him its check therefor on the First State Bank of Lyford. Trevino indorsed the check over to W. A. Addington, but payment thereof was stopped by the latter when presented by the indorsee, on account of a dispute over the true ownership of the cotton.

Subsequently appellant instituted this action in the nature of an interpleader against the First State Bank of Lyford, W. A. Adding-ton, Antonio Trevino, and Lorenzo Cavazos, alleging that it had in its hands $154.96, the purchase price of said cotton, which it tendered into the registry of the court to be paid over to the defendants as their right thereto might be ascertained upon the trial. C. A. Sundling intervened, claiming an interest in the stake. The defendant Addington disclaimed any interest in the stake, but in a cross-action sought to recover of the plaintiff (appellee) the amount of the latter’s cheek ($154.96) of which he was an innocent purchaser. The remaining defendants and in-tervener asserted various interests in the stake held by appellant.

Upon a trial, the court divided the stake among the several claimants therefor, and, in addition, rendered judgment in favor of Add-ington against appellant for the amount of said check. It was shown upon the trial that Trevino, of whom appellee purchased the cotton, was'not the true owner thereof, but that it was the property of defendant Cavazos, subject to the.landlord’s lien in favor of in-tervener, Sundling, and a chattel mortgage in favor of the bank.

The Williams Industries, the stakeholder, and the purchaser of the mortgaged property, does not complain of the distribution of the stake tendered by it in the trial court, but has appealed from the judgment recovered against it by Addington for the amount of the check given by appellant and indorsed by the payee to Addington, who was adjudged an innocent purchaser thereof. This statement of the case has been eked out of the record by this court, in the absence of such statement from the briefs of the parties.

Appellant seeks reversal upon two grounds, first, that the justice of the peace court, in which the suit was instituted, was without jurisdiction of the subject-matter; and, second, that appellant’s check for $154.96 given to Trevino, and by the latter indorsed to appel-lee, was not a negotiable instrument, and that therefore appellee could not be held to be an innocent purchaser thereof.

The objection to the jurisdiction of the justice of the peace court is that the amount of the stake, $154.96, tendered by the plaintiff below, and tbe same amount sought to be recovered in the cross-action of the defendant below, should be added together for the purpose of determining jurisdiction, and that the sum of those amounts, being $309.92, exceeded the jurisdiction of said court. We overrule this contention. Jurisdiction in such cases is controlled by the maximum amount sought to be recovered by any party, and not by adding together the several amounts sought against each other by the several parties. Crosby v. Crosby, 92 Tex. 441, 49 S. W. 359. The amount in controversy, therefore, was only $154.96, which was within the jurisdiction of the justice of the peace court.

With reference to appellant’s second contention, it appears that the check in question, otherwisé in the usual form, bears a finely printed indorsement upon ’its back that “original epdorsér certifies that he is the owner of the commodity for which this check is given and has full authority to sell same.” The original indorser was Trevino, the payee, and purported owner of the cotton, but later proven- not to be such owner. The question is whether this indorsement deprived the instrument of its negotiability.

We are of the opinion that the printed in-dorsement upon the check did not affect the apparent negotiability of that instrument, and that the finding of the court from the evidence that appellee took the instrument without notice of any failure of consideration therefor, and under such circumstances as to acquit appellee of any bad faith in acquiring same, is conclusive upon appellant. The in-dorsement had no more effect than to apprise the purchaser of the instrument that it had been given in payment for a commodity which the maker owned and had authority to sell, which would have been implied even if not expressed ; or, in short, that it -had been given for a valid and completed consideration, for the purchase of cotton from the payee. It certainly did not amount to a condition that the instrument should not become effective or payable if the recitals in the indorsement aft-erwards proved to be false. Arrington v. Protective Bureau (Tex. Com. App.) 24 S.W.(2d) 383, 384; American Exchange Bank v. Steeley (Tex. Civ. App.) 10 S.W.(2d) 1038; Mountjoy Parts Co. v. Bank (Tex. Civ. App.) 12 S.W.(2d) 609.

It was said in the Arrington Case that, “in order to-render an instrument nonnegotiable by reference to some extrinsic agreement, it must appear therefrom that the paper is to be burdened with the conditions of the agreement. There is nothing in the language used indicating anything more than a mere reference to the transaction out of which the obligation arose. It is in effect a recital that the obligation disclosed by the instrument is one given for the purchase of goods from the drawer by the acceptor.”

Appellant relies upon the decision of the Commission of Appeals in Lane Co. v. Crum, 291 S. W. 1084. But the qualification in the instrument involved in that case was unlike that here involved, rendering that decision inapplicable here. It is true that some expressions used in the opinion in that case were broad enough to give color to appellant’s contention in this case, but such expressions were explained and their apparent effect expressly neutralized by the Commission of Appeals in the Arrington Case, supra.

The judgment is affirmed.


author: HALL, C. J.

text:
    AMERICAN SURETY COMPANY OF NEW YORK, Appellant, v. AXTELL COMPANY, Appellee.
    No. 3301.
    Court of Civil Appeals of Texas. Amarillo.
    April 29, 1931.
    Wilson, Randal & Kilpatrick, of Lubbock, for appellant.
    Schenck & Triplett, of Lubbock, for appel-lee.
   HALL, C. J.

The rights of-the parties to this controversy turn upon one issue which was certified to the Supreme Court. In response to the questions involving that issue, the Commission of Appeals has held that because the Axtell Company failed to comply with the requirements of amended article 5160, Revised Statutes, it is not entitled to recover upon the bond.

It is unnecessary for us to discuss any other propositions urged, and in accordance with the answers of the Commission of Appeals, 36 S. W.(2d) 715, the judgment of the trial court is reversed and here rendered that the Axtell Company take nothing as against appellant

MEMORANDUM DECISIONS


author: HUGHES, Justice.

text:
    Glenn HALSELL et al., Appellants, v. TEXAS WATER COMMISSION et al., Appellees.
    No. 11186.
    Court of Civil Appeals of Texas. Austin.
    May 27, 1964.
    Rehearing Denied June 17, 1964.

      Hardwicke, Haddaway & Pope, Alex Pope, Jr., Larry K. Montgomery, Fort Worth, for appellants.
    Waggoner Carr, Atty. Gen., F. R. Booth, Asst. Atty. Gen., Austin, H. P. Hodge, Jr. City Atty., Wichita Falls; Vinson, Elkins, Weems & Searls, Victor W. Bouldin, Houston, for appellees.
   HUGHES, Justice.

Glenn Halsell and Mrs. Rosalie Halsell, individually and as executrix of the will of Furd Halsell, deceased, sued the Texas Water Commission and its members in their official capacities to cancel its order of May 4, 1962 granting application No. 2196 filed by the City of Wichita Falls “for a permit to appropriate and divert a total 63,400 acre feet of the unappropriated waters of the State of Texas per annum by impounding between January 1, and January 1 of the following year, from Little Wichita River, a tributary of Red River in Clay County, Texas, for municipal water supply,” and to cancel the Permit issued pursuant to such order.

Appellants own land in Clay County which lies within the watershed of the Little Wichita River and which adjoins such River, on both sides, above and below the site of the proposed dam to be constructed for the purpose of impounding the water to be used by the City of Wichita Falls, and a part of which land will be inundated by such impounded waters.

The order of the Commission and the Permit granted to the City of Wichita Falls authorizes the City to construct a dam at what is called the Halsell site in Clay County across the Little Wichita River and to store water at such site and to take annually up to 45,000 acre feet of such water out of the watershed of the Little Wichita River and into the watershed of the Wichita River for use in Wichita Falls.

Trial without a jury resulted in a take nothing judgment for appellants.

Appellants’ first two points, jointly-briefed, are, in effect, that the Permit issued to the City was void for the reason that its application (No. 2196) did not affirmatively state, as required by Art. 7590, V.A.T.S., and Commission Rule 605.1, that such water was to be taken from one watershed for use in another watershed, and that notice to such effect was not given; further that such Permit was void because the application inaccurately stated that surplus water would be returned to the Little Wichita River, and that no notice was given that such surplus water would be returned to the Wichita River.

Arts. 7508-9 and Art. 7590 provide:

“Art. 7508. Conditions of application
“Before the Board shall approve any such application [to appropriate unappropriated water] and issue any such, permit, notice of such application shall be given substantially in the following manner:
"Such notice shall be in writing; shall state the name of the applicant and his residence; the date of the filing of the application in the office of the Board; the purpose and extent of the proposed appropriation of water; the source of supply; the place at which the water is to be stored, or to be taken or diverted from the source of supply; together with such additional information as the board may deem necessary. If the proposed use is for irrigation, such notice shall contain a general description of the location and the area of the land to be irrigated. Such notice shall also state the time and place when and where such application will be heard by the Board.
“Art. 7509. Publication of
“Such notice shall be published once in each week for four consecutive weeks prior to the date stated in such notice for the hearing of such application in some newspaper having a general circulation in that section of the State in which the source of water is located. In addition to such publication, a copy of such notice shall be transmitted by the secretary of the Board, by registered mail, addressed to each claimant or appropriator of water from such source of water supply, the record of whose claim or appropriation has been filed in the office of the Board. Such notice shall be mailed not less than twenty days before the date set for the hearing.
“Art. 7590. Application for permit
“Before any person, association of persons, corporation, water improvement or irrigation district shall take any water from any natural stream, water course, or watershed in this State into any other watershed, such person, association of persons, corporation, water improvement or irrigation district shall make application to the Board of Water Engineers for a permit so to take or divert such waters, and no such permit shall be issued by the Board until after full hearing before said Board as to the rights to be affected thereby, and such hearing shall be held and notice thereof given at such time and such place, in such mode and manner as the Board may prescribe; and from any decision of the Board an appeal may be taken to the district court of the county in which such diversion is proposed to be made, in the mode and manner prescribed in this chapter for other appeals from the decision of the Board.”

Rule 605.1 of the Commission provides, in part:

“605.1 DIVERSION FROM ONE WATERSHED TO ANOTHER:
Where an applicant desires to divert water from one watershed for use in another watershed, the procedure to be followed is governed by the provisions of Article 7590.
(a) Documents Needed to File: Application made in the usual form and containing the matters required of other applications for a water permit, showing in addition thereto that waters will be taken from one named watershed to another named watershed.
* * * * * *
(c) Notice and Hearing: Notice shall be given to record appropriators in both the watershed of diversion and use, and hearing shall be held in the same manner as prescribed in other applications requesting appropriations or use of State water.”

The application filed by the City with the Commission contained, in addition to the matters above indicated, the following statement:

“Surplus water will be returned to Little Wichita River at a point which bears N 2650 ft. from the Southwest corner of Survey No. 33 (E. Brooks) as indicated on map.” This point is at the base of the dam which the City proposed to build.

The notice sent out by the Commission of the City’s application reads in part:

“No. 2196
“Notice is hereby given to whom concerned that the CITY OF WICHITA FALLS, TEXAS, c/o Kenneth Johnson, Mayor, City Hall, Wichita Falls, Texas, on the 20th day of June, 1961, filed its application in the office of the Board of Water Engineers for the State of Texas, in which it applies for a permit to appropriate of the unappropriated waters of the State of Texas, from the Little Wichita River, a tributary of the Red River, in Clay County, Texas, a total of 63,400 acre feet of water annually for municipal use; and to construct an on-channel reservoir on the Little Wichita River and to impound therein 228,000 acre feet of water, all being more fully set out in said application.
“The proposed dam is located at a point which bears north 1000 feet from the southwest corner of E. Brooks Original Survey No. 33, on the east bank of the Little Wichita River in Clay County, Texas, and is distant in a southwesterly direction from Henrietta, Texas, approximately ten (10) miles; and which site is generally referred to as the ‘Halsell Site.’ ”

It was stipulated that this notice was “sent to everyone to whom, under any theory, it should have been and could have been sent.”

Assuming that two watersheds are involved here, it is apparent that neither the application nor notice complied with Rule 605.1 of the Commission requiring that the application show “that waters will be taken from one named watershed to another named watershed.”

It is the position of the Commission that this rule has been construed by it to apply only where the diversion of water is to be from one river basin to another river basin and that it is inapplicable when the proposed diversion is from one sub-basin or tributary to another sub-basin or tributary of the same river. In this instance the Little Wichita and the Wichita Rivers are both tributaries of the Red River. Evidence was offered by the Commission of its departmental construction of this rule as indicated. Mr. John J. Vandertulip, Chief Engineer of the Texas Water Commission testified on this point as follows-:

“Q * * * Mr. Vandertulip, from your personal experience and knowledge as Chief Engineer of the Texas Water Commission, does the Texas Water Commission consider the diversion of water from the specific situation we have here, of the Little Wichita into the Big Wichita, the Wichita, as an inter-basin diversion of water or diversion of water in this area?
“A No. In our staff work, whenever an application is received, we look at all of the watershed, all of the river basin downstream from this point in question, so that we might properly notify any downstream users. The Red River Basin, of course, the Red River is an interstate stream, is a boundary stream, or — let me use the Brazos River as an example. If we have an application for a reservoir or a tributary of the Brazos River, we do not consider that as a separate watershed, but carry that and notify all parties down-stream on the main stem, because that water will flow down to that, so our concept of watershed is the entire river basin.
“Q Now, Mr. Vandertulip, in your experience with the Texas Water Commission, can you state whether or not all, if not — or most all applications or permits granted by the Commission involve a diversion of water from some smaller tributary of a major watershed into another tributary of the same watershed?
“A When we think of watershed as basin, yes. This is the case.”

Rule 605.1 would serve no additional purpose, as to notice, if applied to the present case because under the regular notice practice of the Commission notices are always sent to down-stream appropriators from the same stream, in this instance the Red River. The purpose of this rule was to provide for notice that but for such rule would not be given, i. e. where water is diverted from one river basin to another river basin.

Actually, appellants do not complain of the notice, per se. They attack the application upon which the notice is based. The application was defective in that it did not name the two watersheds. It did, however, give information from which these facts could be derived. The Little Wichita River was named as the donor watershed. Water from it was to be used by the City of Wichita Falls. Lacking only was the name of the Wichita River as the donee watershed. This was a commonly known physical fact about which there could be no dispute. We are not inclined to hold that this defect is fatal to the validity of the proceedings in the absence of any showing that appellants have been harmed as a result.

The other alleged defect in the application is that the point of return of “surplus” water was incorrectly given. This point is stated in the application to be at the base of the dam. The Permit issued pursuant to this application provided, in part:

“All water diverted hereunder except that which is consumed as a consequence of the reasonable and beneficial use thereof for the purpose specified herein shall be returned to the Wichita River, Red River Basin, at the existing sewage treatment plants of the City of Wichita Falls. Before establishing any additional point or points for the discharge of such return water, the per-mittee shall obtain the approval of the Commission.”

Art. 7579, V.A.T.S. provides:

“Art. 7579. Surplus water
“All surplus water taken or diverted from any running stream and not used by the appropriator or disposed of to consumers for the purposes stated in this chapter shall be conducted back to the stream from which taken or diverted, wherever such water may be returned by gravity flow, whenever reasonably practicable.”

Rule 215.9 of the Commission provides:

“Rule 215.9 SURPLUS WATER RETURN POINT: All applications shall describe the point at which surplus water will be returned to the stream with reference to a corner of an original land survey; this must also be clearly shown on the accompanying map.”

Rule 115.1 (i) of the Commission defines “return water” and “return flow” as follows:

“Return water or return flow is the portion of water diverted from a water supply in excess of the consumptive use.”

On this point we quote from the testimony of Mr. Vandertulip:

“Q Mr. Vandertulip, is it not a fact in connection with irrigation systems that you normally have rather substantial canals and a substantial amount more of water is pumped into this canal from which diversions are made into the fields than is actually ever diverted from the main canal system?
“A Yes. This is an operational problem on an irrigation system, and you often have water in the ditches that is not used, and it is routed back to the main stream channel through a wasteway.
“Q Mr. Vandertulip, I asked you about the language Mr. Pope just read to you from the permit. I notice that this uses the language ‘return water that is not put to reasonable and beneficial use.’ Now, in your opinion, is the type of water here water that has been pumped, gone through the city’s system and then treated, and labelled here as ‘return water,’ is the same type of water as what you would normally consider to be surplus water?
“A No, I wouldn’t call it surplus water.”

In conformity with the expert opinion of Mr. Vandertulip we hold that water which has been used and processed by the City of Wichita Falls is not “surplus” water within the meaning of Art. 7579. It will be “used” water. It will have been disposed of to consumers for the purposes authorized by law and the Commission. There is, then, no statutory requirement that this water, if such it be, be returned to the Little Wichita. We quote, for its argumental value, the following from the brief of appellee, City of Wichita Falls:

“It will be noted that this statute [7579] applies only to ‘surplus waters’ which are ‘not used by the appropriator or disposed of to consumers.’ It does not apply to sewage effluent or other residual waters which will be used by the City of Wichita Falls or disposed of to its customers, commonly called ‘return waters.’ It is absurd to contend that the City of Wichita Falls will pump water from the Little Wichita for a distance of 11 miles over the ridge into the big Wichita tributary of the Red River and, without either using it or selling it to customers, dump it as unused ‘surplus water.’ The only surplus water in the Halsell reservoir which will not be used by the City of Wichita Falls or sold to its customers will be that which spills over the spillway of the dam or passes through the ’ sluice gate at the bottom of the dam. This is the point stated in the application. Return flows from waters which are used by the City or its customers will pass through the City’s sewer system and return to a Red River tributary at the present or future locations of the City’s sewage treatment plants. This is in keeping with the law and the terms of the permit.”

Appellants appeared before the Commission at the hearing on the application made by the City of Wichita Falls, filed written pleadings and were represented by counsel. If there are any defects in the application made by the City, we are of the opinion that appellants have sustained no harm or prejudice therefrom. For this reason and for all the reasons stated above we overrule appellants’ points one and two.

Appellants’ third point is that the action of the Commission in the premises is arbitrary, capricious, not supported by substantial evidence and will result in waste of land and water and does not allow optimum development of the public waters of the Little Wichita River is detrimental to the public welfare, unlawful and is to the prejudice of persons and property in the watershed of the Little Wichita River.

There is no denial that the City of Wichita Falls is pursuing a proper and prudent course in acquiring additional water for its present and future needs. Neither is there a denial that the water of the Little Wichita River is the most desirable obtainable. In fact appellants say, “the characteristics of the Little Wichita River are such that it is an oasis of good water surrounded by water of greatly inferior quality and is the only sizeable source of good water remaining to be developed in the area.”

Appellants also say that, “The controlling factor is whether in the proper and optimum ■development of the Little Wichita River, a reservoir at Halsell [which was authorized hy the Commission] or a reservoir downstream at Ringgold [as earlier authorized hy the Commission] will (1) produce or “yield” more water for the State, and (2) -use less land.” Both reservoir sites are in ■Clay County.

Appellants’ land would not be taken if the Ringgold site had been approved. Appellants’ land, or a portion if it, will be taken if the chosen site at Halsell is sustained.

We will excerpt from the substance of the testimony upon which appellants rely to sustain these points.

Mr. Robert Gooch, a registered professional and highly qualified engineer testified for appellants. He gave this summary of his comparison between the two sites:

"Alternatives for Development of the River
There are two alternatives for development of the Little Wichita river. One is to build first the Halsell Reservoir, controlling some 46% of the now undeveloped portion of the watershed, followed at a later date hy a medium-size reservoir at the Ringgold site near the mouth of the river. The other approach is to build a 164,000 acre-foot reservoir at the Ringgold site initially and to enlarge that reservoir to 433,000 acre-feet when required to obtain full basin development. The alternatives are as follows:
Net Drainage Area (Sq. Mi.) 557 1,202 1,202 1,202
Capacity (Acre-Feet) 228,000 458,000 164,000 433,000
Water Surface Area (Acres) Spillway Level 13,000 26,400 10,700 21,000
Dependable Yield in 1980 (MGD) 27.5 23.6
Dependable Yield in 2010 (MGD) 53.4 64.0
Both alternatives would provide as much conservation storage as is necessary or justified on the Little Wichita river. The two-reservoir approach, however, based on lakes at both the Halsell and Ringgold sites, would produce 10.6 MGD less yield. This is because of the greater reservoir surface area involved and the resulting higher evaporation losses. In either case, Wichita Falls area will need the full supply available from the Little Wichita river before the end of this century.”

The engineer who designed the proposed dam at Halsell did not study the Ringgold site. He just designed the best dam he could for the Halsell site. The Halsell site was selected by a New York engineer not licensed in Texas. He first recommended the Ringgold site. He then went to the Halsell site with a rancher who objected to the Ringgold site. Two months later he changed his recommendation to the Halsell site. This engineer testified that the scope of his employment by the City of Wichita Falls did not require him to consider the optimum development of the Little Wichita.

Appellants point to testimony that 13,000 acres of land would be needed for the dam at Halsell, whereas only 10,700 acres would be needed for the first stage dam at Ringgold. They also point to testimony that even if the dam is located at Halsell it will become necessary in the future to build a dam at Ringgold and the land required would be 5400 acres more than a single dam at Ringgold.

We quote the following from appellants’ brief, which has support in the record:

“The total productivity or yield of a dependable supply of water from the proposed reservoir at Halsell (plus the later supplemental reservoir at Ringgold) is ten million gallons of water a day less than the yield of a single reservoir at Ringgold. The ten million gallons of water a day loss by building at Halsell instead of Ringgold is about what Wichita Falls now uses.”

Appellants also cite evidence of the losses in ad valorem taxes which would result from the condemnation of more land than is required if the Halsell location is sustained and other losses which would occur if this land is withdrawn from commercial uses.

We quote from appellants’ brief as follows :

“There was no testimony by ap-pellees that the diversion from the Little Wichita river would not prejudice ‘any person or property’ within the Little Wichita watershed. There was no testimony by appellees that the remaining water of the Little Wichita river would not be needed in the Little Wichita watershed. The history and presumption of the statute is that diversions cause prejudice, and appellees did not attempt, much less succeed, to prove no ‘prejudice.’ ”

The statute referred to is Art. 7589, V.A.T.S., which reads:

“Art. 7589. Unlawful to divert water
“It shall be unlawful for any person, association of persons, corporation, water improvement or irrigation district to take or divert any of the water of the ordinary flow, underflow, or storm flow of any stream, water course, or watershed, in this State into any other natural stream, water course or watershed, to the prejudice of any person or property situated within the watershed from which such water is proposed to be taken or diverted.”

Appellees called four expert witnesses, as follows: Mr. John Ruhmann, director of utilities of the City of Wichita Falls, who testified in regard to the City’s present water supply and distribution system, the defeat of the Ringgold bond election, the success of the Halsell bond election, and the urgent need for an additional water supply for the City and its inhabitants; Mr. Alfred C. Leonard, a partner in the firm of Malcolm Pirnie Engineers of New York, who testified in regard to engineering and hydrological matters and introduced his firm’s engineering report prepared for the City of Wichita Falls. Mr. Homer A. Hunter of Dallas, who was employed by the City of Wichita Falls as engineer on the Halsell proj ect and who testified in regard to engineering and hydrological matters and who proved up his engineering report to the City of Wichita Falls; and Mr. A. H. Woolver-ton of Austin, formerly chief engineer for the Board of Water Engineers, who was employed as a consultant to Homer A. Hunter Associates and who testified in regard to topographic and hydrological matters and proved up his report showing that the Hal-sell project would lose less water by evapo-transpiration than the Ringgold project. Appellants’ witness Robert S. Gooch agreed that the Halsell project as planned by the City of Wichita Falls fully develops the site, that it is a feasible project both from an engineering and hydrological standpoint and would satisfy expected water needs of the City of Wichita Falls for at least 25 years.

The undisputed evidence shows that the Ringgold site, for which appellants contended, is 27.7 miles from Wichita Falls, whereas the Halsell site is 11 miles from the City. The undisputed evidence further shows that the proposed initial pipeline from the Ring-gold site would be 22 miles long in the early stages and would have to be increased to 27.7 miles if the reservoir is enlarged, whereas the proposed pipeline from Halsell is, and would remain, only 11 miles long. The cost of pumping water from the Ring-gold site would be approximately double the cost of pumping water from the Halsell site. Mr. Leonard testified that the Halsell project would cost $2,100,000 less than the initial Ringgold project and that the estimated construction cost per million gallons of water per day of dependable yield would be $165 at Halsell and $195 at Ringgold.

The uncontradicted evidence also shows that Malcolm Pirnie Engineers, an outstanding firm with an international reputation, made a complete study of all of the available sources of additional water supply for the City of Wichita Falls and recommended the Halsell site; that the voters of the water district in which Wichita Falls is situated rejected the Ringgold project; and that the voters of Wichita Falls approved the Halsell project.

Mr. Gooch, appellants’ witness and Mr. Leonard, appellees’ witness, testified that it was economically necessary to purchase all land for the Ringgold project when the first stage was constructed, even though land for the second stage might not be needed for 25 or 30 years. This is because development around the lake would make the cost of the second-stage land prohibitive if not purchased when the project is started. Mr. Gooch fixed the required Ringgold acreage at 21,000 acres, while Mr. Leonard testified that 24,000 acres would be required. Mr. Gooch fixed the required acreage at Halsell at only 13,000 acres and Mr. Leonard at 14,000 acres.

If, as appellants contend, a small reservoir at Ringgold will be needed in 25 or 30 years to supplement the supply from Halsell, the land required for both projects would be 23,700 acres, of which 10,700 acres for the small Ringgold project would not be required until the early part of the 21st Century. Therefore, even under appellants’ theory, 21,000 or 24,000 acres of land would be taken off the tax rolls immediately if the Ringgold project is built and only 13,000 acres if the Halsell project is built.

Appellants offered proof that if, in the early part of the 21st Century, it becomes necessary to build another small reservoir at the Ringgold site to supplement the water supply from the Halsell reservoir, evaporation losses at the two reservoirs would be some ten million gallons per day more than if a single Ringgold project were built. However, this was denied by Mr. John Vandertulip, chief engineer for the Texas Water Commission, and by Mr. A. H. Woolverton, foi-mer chief engineer for the Texas Board of Water Engineers.

We quote the testimony of Mr. Vander-tulip in this regard:

“Q You heard Mr. Gooch’s testimony to the effect that in his opinion, according to his criteria, that the construction of the Halsell and small Ringgold Project would effect in time a net loss of about 10]4 million gallons a day through evaporation ?
“A Yes, sir, I heard his testimony.
“Q Over the single Ringgold Proj ect ?
“A Yes, sir.
******
“Q From your studies of the flow records at the two gauges [on the Little Wichita] during the thirty-six-month period testified to and from your studies of the data and information that was presented under oath to the Water Commission in regard to losses and to the phreatophytes in the Basin of the Halsell reservoir, did you reach a professional opinion as to the relationship of the losses that would be salvaged by the construction of the Halsell reservoir in relation to the losses that Mr. Gooch testified to, at IO1/2 million gallons per day, about which I just asked you?
“A Well, that was a rather extensive question, sir. I would like to take it in parts.
“Q All right, sir, if you will.
“A First, our reviewed analysis of the data corroborated the testimony that had been presented in the hearing, in that some 13,000 acre-feet of channel losses occurred annually between the two gauge stations. This is an approximate number. It is of that, oh, plus or minus a few hundred acre-feet. We have previously in our May 2nd memorandum determined that the difference in yields, reservoir yields between the Halsell-Small Ringgold combination, as opposed to the Ringgold, was of the order of 10,500 acre-feet difference. After — Halsell reservoir would be —would cover the area where these channel losses are taking place, and, therefore, in the future the losses would not occur.
“Q If the Halsell were built ?
“A If Halsell were built. If just Ringgold were built, you would still have the channel loss condition occurring. That being the case, the construction of Halsell reservoir would actually salvage these losses that were taking place in the present condition of the channel, or the condition as of 1953 to 1956, and, therefore, there would not be a loss of water, if Halsell were constructed first and Ringgold at some later time.
“Q The amount of water salvage that is now being lost, and will continue to be lost if Halsell is not built and Ringgold is built, at least equals or exceeds the losses that Mr. Gooch determined to exist between the two combinations, is that correct, in your opinion ?
“A Well, his difference, as I recall this morning, was 101/2 million gallons a day, which is of the order in round numbers, 12,000 acre-feet a year, so it is about the same. The salvage would be plus a thousand acre-feet.
“Q Then, is it your professional opinion that the construction of the Halsell Project, and perhaps at some time the later construction of the small Ringgold would not result in a net loss of water to the State of Texas?
“A That is my professional opinion, yes, sir.
“Q Over the use of Ringgold alone?
“A That is correct
"Q Now, Mr. Pope yesterday seemed somewhat concerned about the statement that I had made that the way to get rid of the phre-atophyte loss was to drown the trees and vegetation. Would you comment on that, as to whether that is a proper procedure?
“A I participated in the investigation on the McClellan Reservoir Delta along the Pecos River in New Mexico, which is infested with both salt cedar and willows. We had seven tracts of some 500 acres in each tract, in which we attempted to use chemicals of various types to eradicate the salt cedar and willows. We used several different types of inflammable material to attempt to burn these phreatophytes. The results were a temporary stoppage, a . matter of months, to as much as a year in phreatophyte growth, and then it came back. Then we also tried to clear reservoir — a channel of these phreatophytes, by root plowing. This was done on the Rio Grande Basin, and constant maintenance is required to keep the phreatophytes from coming back in. The only known way that we have found to kill the phreatophytes is by covering them at least two foot deep with water and preferably covering them entirely.
“Q What happens when you do that ?
“A You — by having water stand at least two foot deep over the plants entirely, you take — you will gradually dissipate all of the oxygen in the soil, and no air being in the soil, you will eventually kill them. The water has to stand on them for at least a year’s time.
“Q You literally drown them?
“A That is correct.
“Q That is the most effective way to get rid of them?
“A That is the only effective way I know of.
“Q Then, if Halsell is constructed and the phreatophyte area is covered, in your professional opinion, that would eliminate the losses that are now occurring?
“A Yes, sir.
“Q And would result in at least an equal savings to that of the losses about which Mr. Gooch testified in favor of the Ringgold site?
“A That is correct.”

Lake Kickapoo, also on the Little Wichita, is a primary source of water for Wichita Falls. There is evidence that the so-called tandem use of this lake with the proposed lake at Halsell would yield more water than the use of such lake with the proposed lake at Ringgold, this because the Ringgold site is further from Lake Kickapoo than the Halsell Lake would be when created. On this point we quote the testimony of Mr. Vandertulip:

“Q Mr. Vandertulip, — the Halsell permit, speaks of a joint reporting of diversions and storage and so forth of Lake Kickapoo and Hal-sell together. Is there any advantage, hydrologically speaking, from the standpoint of a water supply, in operating two reservoirs on the same stream in tandem fashion and coordinating the operation ?
“A Yes, very definitely. By being able to select the water out of either of the reservoirs, depending on whether inflow came into one or the other reservoir, you could maintain by the system operation the best yield possible, and that yield would be greater than the yield of the two individual reservoirs.
“Q I believe the evidence shows in Mr. Gooch’s testimony that that tandem operation would result in about 3,000,000 gallons a day additional yield. Have you made any study of that?
“A I have reviewed this. I haven’t made a detailed study of it, but that order of magnitude of 3,000,-000 gallons a day would seem very reasonable for the other detailed operations that I have done under similar situations.
“Q Now, Mr. Gooch seems to give no significance to that. In your opinion, is that significant saving ?
“A Well if you don’t have to put up any additional facilities, and you get 3,000,000 gallons a day more out of it, yes, sir, it is a significant saving.
“Q Now, is the proximity of Halsell to Kickapoo an element in making that work, in making the tandem operation efficient?
“A Yes, sir.
“Q Would you get the same good benefits in a tandem operation at Kickapoo and Ringgold?
“A No, sir, they are widely separated.”

There is a wide range (125,000 to 400,-000) in the estimates of the projected population of the City of Wichita Falls and its suburbs through the year 2000. The Commission, however, does not project, at this time, populations beyond the year 1980, because they consider more distant projections unreliable. Taking an in between estimate of a population of 200,000 in the year 2000, the anticipated yield of water from present sources and the proposed lake at Halsell there would arise no necessity during the interim of an auxiliary dam at Ringgold.

We are completely satisfied that the order of the Commission and Permit 2015 issued pursuant thereto is reasonably supported by substantial evidence. The field in which this controversy arises is highly technical and the decisions of the expert body lawfully constituted to resolve such controversies have, and should have, extraordinary weight with the Courts in passing upon their validity. We find no semblance of arbitrary or capricious action on the part of the Commission and we sustain the solution of this difficult problem made by the Commission after a sixteen day hearing and a thorough and painstaking consideration of all relevant factors suggested by the parties.

We turn now to the contention that action of the Commission is unlawful and to the prejudice of persons and property in the watershed of the Little Wichita River.

Art. 7590, copied herein, plainly and by explicit terms authorizes the diversion of water from any natural stream, water course, or watershed in this State to any other watershed and it establishes the procedure to be followed by the applicant therefor and the Board (Commission).

Art. 7589, also copied herein, makes it unlawful to divert water from one watershed to another watershed “to the prejudice of any person or property situated within the watershed from which such water is proposed to be taken or diverted.”

Unless these articles, enacted at the same time and in the same legislative act (Acts 1917, p. 211, Secs. 80-81) cancel each other, and in our opinion they do not, then they must be reasonably construed to give effect to both.

The Legislature has been very careful to provide that the Commission may not impair vested private or property rights. Arts. 7469, 7515a, 7620, V.A.T.S. The permit issued to the City of Wichita Falls provides, in part, “The permittee shall store only appropriable public waters of the Little Wichita River, subject to all rights of holders of superior and senior water rights downstream.”

Appellants own private and vested property and property rights which will be appropriated by the City of Wichita Falls under its power of eminent domain in the event it pursues its permit to build a dam at Halsell. We do not consider this eventuality as constituting legal prejudice to such property, property rights or their owners. The reason for this is that such property or property rights may not be taken by the City except upon the payment of adequate consideration.

The only evidence referred to by appellants as constituting prejudice to persons or property situated within the Little Wichita watershed is that previously discussed relating to the wastage of water and the use of an excessive amount of land. We need not review that evidence. It is reasonably susceptible of the construction that no water will be wasted and an excess amount of land will not be utilized by the location of the dam at Halsell. We, therefore, hold that the Commission did not err in failing to find that the application of the City should be denied because it would unlawfully result in prejudice to persons and property in Little Wichita watershed. We do no trench upon the future and attempt to define the import of Art. 7589 upon facts not presently before us. Point three is overruled.

Points four and five, jointly briefed, are that the Trial Court erred in trying this case under the substantial evidence rule and denying appellants a jury trial, as demanded, and also in denying them independent finding of facts as they deem required by Art. V, Sec. 10, Constitution of Texas, Vernon’s Ann.St. and Arts. 7590, 7567 and 7568, V.A.T.S.

Art. V, Sec. 10 of our Constitution provides that in the trial of all causes in the District Court the parties, upon proper demand, shall have the right of trial by jury.

Arts. 7567-8 read:

“Art. 7567. May appeal to appellate court, when
“If any person, firm, association of persons, or corporations engaged in furnishing water, or other persons at interest be dissatisfied with the decision of any rate, charge, order or act of regulation adopted by the board, such dissatisfied company or party may file a petition setting forth the particular cause or causes of objection to such decision, act, rule, rate, charge or order, or to either or all of them, in a district court of Travis County, against said'board as defendant. Said action shall have precedence over all other causes on the docket of a different nature, and shall be tried and determined as other civil causes in said court. Any party to said action may appeal to the Appellate Court having jurisdiction of said cause; and said appeal shall be at once returnable to said Appellate Court at any term thereof; said action so appealed shall have precedence in said Appellate Court of all causes of a different character therein pending; provided that if the court be in session at the time such right of action accrues, the suit may be filed during such term and stand ready for trial after ten days notice.
“Art. 7568. Proof rests upon plaintiff
“In all trials under the foregoing article the burden of proof shall rest upon the plaintiff, who must show by clear and satisfactory evidence that the rates, regulations, acts, orders, or charges complained of are unreasonable and unjust to it or them.”

Art. 7590, previously quoted, provides that an appeal may be taken from the order of the Board (Commission) in diversion cases, such as this case, to the District Court of the County in which such diversion is proposed to be made.

Art. 7590 was a part of the 1917 Act. Arts. 7567 and 7568 were enacted in 1918, Acts 4th C.S., 1918, p. 129, Secs. 64-a, 64-B.

This suit was expressly filed in Travis County under Art. 7477, Sec. 12, which reads:

“(12) Any person affected by any ruling, order, decision, or other act of the Board, may, within one hundred and twenty (120) days after the date on which such act is performed, or, in case of a ruling, order, or decision, within one hundred and twenty (120) days after the effective date thereof, file a petition in an action to review, set aside, modify, or suspend such ruling, order, decision, or other act. Or any party affected by the failure of the Board to act in a reasonable time upon an application to appropriate water, or to perform with reasonable promptness any other duty imposed by this Chapter, may file a petition in an action to compel the Board to show cause why it should not be directed by the court to take immediate action. The venue in any or all such actions is hereby fixed exclusively in the District Court of Travis County, Texas.”

We hold that this suit was properly filed in the District Court of Travis County. It is not necessary that we determine whether or not it could have been filed in the County of diversion. We do hold that Art. 7590 is not jurisdictional in the sense that appeals of the nature therein described can only be filed in the County of diversion and that the District Court of Travis County is without jurisdiction of such appeals or suits. We also hold that Art. 7590, construed as a venue statute, does not fix exclusive venue in the County of diversion. We arrive at these conclusions by abiding by the rule which looks on repeals by implication with disfavor and by applying the rule that general and special statutes should be read together and harmonized, if possible. If, however, there is irreconcilable conflict between Arts. 7590 and 7477, which we do not find, we would be inclined to hold that Art. 7477, being later in point of time, expresses the present legislative intent, and should prevail.

In holding that this case was properly tried under the substantial evidence rule and that appellants were not entitled to a jury, although properly demanded, we quote from and adopt the following portion of the brief filed by the City of Wichita Falls:

“Appellants’ contention that they were entitled to a jury trial and that the trial court erred in applying the substantial evidence rule to this case are concluded against them by the opinion of this Court and the Supreme Court in Southern Canal Company v. State Board of Water Engineers [159 Tex. 227], 318 S.W.2d 619 (1958). That decision controls this case.
“It was a suit to set aside an order of the Board of Water Engineers denying the Canal Company’s application for a permit to impound and appropriate waters of the Trinity River and to divert such waters into the San Jacinto River watershed for use in Harris County. In affirming this Court’s holding that this type of suit must be tried under the substantial evidence rule, the Supreme Court reviewed the controlling statutes at length and fully discussed the nature of a suit attacking an order of the Water Commission (Board). The Court pointed out the inconsistencies in Section 13 of Article 7477 and held that the true question to be decided by the courts in this type of case is the reasonableness of the Board’s order and said (p. 623) :
“ ‘If the issue to be decided and on which evidence is to be heard is the reasonableness of the Board’s order, decision by the courts cannot be made upon facts found on the trial as in other civil cases and under rules of procedure applicable in other civil cases (jury trial), for the question to be decided is a question of law. Thomas v. Stanolind Oil & Gas Co., 145 Tex. 270, 198 S.W.2d 420, 421; Jones v. Marsh, supra; (148 Tex. 362, 224 S.W.2d 198) ; Board of Firemen’s Relief & Retirement Fund Trustees of Houston v. Marks, 150 Tex. 433, 242 S.W.2d 181, 183, 27 A.L.R.2d 965; Hawkins v. Texas Company, 146 Tex. 511, 209 S.W.2d 338, 340. If the issue to be decided and on which evidence is to be heard is the reasonableness of the Board’s order, decision cannot be made from a preponderance of the evidence or entirely free of the substantial evidence rule, for the legal test of the reasonableness of an order of an administrative agency is whether it is reasonably supported by substantial evidence and not whether it is supported by a preponderance of the evidence. Thomas v. Stanolind Oil & Gas Co., supra; Hawkins v. Texas Company, supra; Board of Firemen’s Relief, etc., v. Marks, supra.’ ”
The court also said (p. 622) :
“ ‘The major side effects of a trial under the substantial evidence rule are that the only issue to be decided is one of law and trial of the fact issues by a judge or jury is avoided.’
“Appellants’ contention that they are entitled to a jury trial under Article V, Section 10 of the Constitution of Texas is unsound for two reasons. First, as held in Southern Canal, there is no fact question to be decided, the only question being one of law. This is not a confiscation suit or anything more than an appeal from an order granting the State’s permission to impound and use public waters. Second, it is well established that the right of trial by jury as guaranteed by the Constitution of Texas is limited to the right as it existed at common law, or as provided by statutes, in effect when our Constitution was adopted in 1876. White v. White, 108 Tex. 570, 196 S.W. 508 [L.R.A.1918A, 339]; Hammond v. Ashe, 103 Tex. 503, 131 S.W. 539; Burkhalter v. Canyer, 9 S.W.2d 1029 (Comm.App.) ; Pittman v. Byars [51 Tex.Civ.App. 83], 112 S.W. 102 (approved in Burckhalter); Hickman v. Smith [Tex.Civ.App.], 238 S.W.2d 839 (writ ref.). Suits of this character were, in 1876, and are now, unknown to the common law. Motl v. Boyd, 116 Tex. 82, 286 S.W. 458, 475 (Point 19) ; City of Strawn v. Board of Water Engineers [Tex.Civ.App.], 134 S.W.2d 397 (error ref.). The act creating the Board of Water Engineers was not passed until 37 years after the adoption of the Constitution in 1876, and Article 7477, which authorizes this type of suit, was not enacted until 77 years after the Constitution was adopted. Article V, Section 10 of the Constitution has no application to this type of suit.”

Appellants cite Texas and New Orleans R. R. Co. v. Railroad Commission, 155 Tex. 323, 286 S.W.2d 112, and other similar cases to support their demand for a jury and an independent factual judicial review. These cases involve the reasonableness of transportation rates and fall into a category which has received separate treatment by the Courts. This case is not a rate case. Points four and five are overruled.

Point six is that the Trial Court erred in refusing to admit in evidence the record of the hearing before the Commission which was offered for the limited purpose of showing that there was no evidence of controlling factors before the Commission when it entered the order and issued the permit in suit.

The Court did not err in this respect. The record made at the hearing was not admissible. Railroad Commission v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022, Cook Drilling Co. v. Gulf Oil Corp., 139 Tex. 80, 161 S.W.2d 1035, Miller v. Tarry, 191 S.W.2d 501, Austin Civil Appeals, writ ref., n. r. e. See Kavanagh v. Holcombe, 312 S.W.2d 399, Houston Civil Appeals, writ ref., n. r. e., for an excellent discussion of the question and pertinent authorities. Point six is overruled.

Point seven is that the Trial Court erred in not holding Permit No. 2015 void for the reason that the Commission did not comply with Sec. 4(h) Art. 7477 which provides that the Chief Engineer of the Commission “ * * * shall be responsible to the Commission * * *” for “(h) Reviewing, analyzing and making recommendations to the Commission in regard to presentations filed under Article 7496, Vernon’s Annotated Texas Civil Statutes; all applications to the Commission for permits, or amendments thereto, to appropriate public waters and/or to construct works for the impoundment, diversion and transportation of public waters; and all applications, or amendments thereto, to construct and operate waste disposal wells.”

Mr. Vandertulip, the chief engineer for the Commission, testified that he and his staff made a very extensive study of the Halsell project and prepared a comprehensive written report to the Commission entitled “Study of Firm Yield Water Supply Development Potential of the Little Wichita River as Afforded by Lake Kickapoo, the Halsell Reservoir Site as Proposed in an Application by the City of Wichita Falls and the Ringgold Reservoir Site,” which was submitted to the Commission. He further testified that Mr. McDaniel, one of the Commission’s engineers who is head of the hydrology section, attended most, if not all, of the hearings before the Commission and conferred with members of the Commission from time to time in regard to the testimony presented at the hearings. Mr. Vander-tulip also conferred with members of the Commission during the course of the hearings in regard to such testimony.

After the hearing before the Commission, neither the Chief Engineer nor any member of his staff evaluated the testimony presented at the hearing for the Commission nor did they subsequent to the hearing make any recommendation to the Commission concerning the matter.

This record shows no dereliction of duty by the Chief Engineer or his staff. Contrarily, it shows full, faithful and efficient discharge of the responsibility placed by statute upon the Chief Engineer. His responsibility is to the Commission and, in our opinion, the Commission, and only the Commission, can complain of any irresponsibility on the part of the Chief Engineer. Point seven is overruled.

Point eight is that the Trial Court erred in permitting Mr. Vandertulip to answer a question which has been quoted herein regarding his professional opinion as to water losses caused by phreatophytes which would be salvaged by construction of the Halsell dam over objection of hearsay and that the witness was permitted to testify concerning the state of the evidence heard by the Commission, which evidence was itself inadmissible.

Mr. Vandertulip was testifying as an expert and it is permissible to assume facts in evidence in formulating questions to expert witnesses when an expert opinion is sought.

Assuming that appellants made the proper objection to this question and answer, we hold that the error, if any, is harmless since Mr. A. H. Woolverton, a registered professional engineer, subsequently testified at length and without objection to the nature of vegetation and trees in the Little Wichita River Valley and their water consuming capacity. Point eight is overruled.

Finding no reversible error, the judgment of the Trial Court is affirmed.

Affirmed.

       Million gallons of water per day

      . Acts 1953, 53rd Log., p. S74.


author: DAVIS, Justice.

text:
    INTERNATIONAL PAPER COMPANY et al., Appellants, v. The STATE of Texas et al., Appellees.
    No. 7548.
    Court of Civil Appeals of Texas. Texarkana.
    May 26, 1964.
    Rehearing Denied June 16, 1964.

      C. M. Kennedy, Texarkana, Ramey, Brelsford, Hull & Flock, Tyler, for appellants.
    Joseph E. Jackson, Long, Strong, Jackson & Strong, LeRoy La Salle, Carthage, for appellees.
   DAVIS, Justice.

The State of Texas, as plaintiff, in behalf of the State, and Panola Junior College, Panola County, and the Carthage Independent School District, sued International Paper Company, a corporation, hereinafter referred to as the Paper Company, and a tax collector, Robert Gentry, and his bondsmen, The Travelers Insurance Company, Lawyers Surety Corporation and Great American Indemnity Company, for delinquent taxes on three tracts of land situated in Panola County, Texas. At the beginning of the trial of the case, the State announced that it was no longer claiming any taxes, penalty and interest on the third tract referred to in its amended petition, formerly being in the name of Paul Scott, because all former tax receipts had been located. The State further announced that it had plead no fraud nor collusion, and had no evidence to offer on the part of either of the defendants or their predecessors in title, or the taxing authority who issued the certificates. The suit involves alleged delinquent taxes on a 62 and 131/3 acre tracts of land. At the time of the purchases of the two tracts of land, the purchasers secured tax certificates by the tax collectors showing all taxes had been paid to and including the years of 1953 and 1958, as provided by the provisions of Art. 7258a, Vernon’s Ann.Tex.Civ.St. The Paper Company plead the provisions of Art. 7258a. Gentry and his bondsmen filed pleas to the jurisdiction of the court, and alleged that the suit against them was a different suit than the one for the delinquent taxes, penalty, and interest, and was barred by the two year statute of limitations.

The case was tried before the court, without a jury. The court sustained the pleas of Gentry and his bondsmen and dismissed the suit against them. The court held the tax certificate issued on the 13Yz acre tract of land was legal and binding. The court further held that the tax certificate issued on the 62 acre tract of land was not legal and binding, and rendered judgment against the Paper Company for the delinquent taxes, penalty, interest and costs of court. The State and the Paper Company noted their exception and have perfected their appeal.

This is the first suit in the State of Texas that involves Art. 7258a of V.A.T.C.S., as amended by the 53rd Legislature in 1953. The Article is quoted in full:

“Art. 7258a. Tax receipt as evidence of payment
Section 1. On and after October 1, 1953, the Tax Collector or his deputy of any county in this State, or any city or political subdivision or tax assessing district within any such county shall, upon request, issue a certificate showing the amount of taxes, interest, penalty and costs due, if any, on the property described in said certificate. A charge of not to exceed One Dollar ($1) may be made for each such certificate issued. When any certificate so issued shows all taxes, interest, penalty and costs on the property therein described to be paid in full to and including the year therein stated, the said certificate shall be conclusive evidence of the full payment of all taxes, interest, penalty and costs due on the property described in said certificate for all years to and including the year stated therein. Said certificate showing all taxes paid shall he admissible in evidence on the trial of any case involving taxes for any year or years covered by such certificate, and the introduction of the same shall be conclusive proof of the payment in full of all taxes, penalty and costs covered by the •same.
“Sec. 1(a). The provisions of this Act shall be applicable only in suits where the State of Texas or any political subdivision thereof sues for unpaid taxes. Such certificate shall not be ■conclusive in suits in which the title for land is involved in any manner in suits between private citizens. As amended Acts 1953, 53rd Leg. p. 1052, •ch. 436, § 1.
“Sec. 2. If any such certificate issued or secured through fraud or collusion, the same shall be void and of •no force and effect, and any such Tax Collector or his deputy shall be liable upon his official bond for any loss resulting to any such County or city •or political subdivision or tax assessing district or the State of Texas, through the fraudulent or collusive or negligent issuance of any such certificate. Acts 1929, 41st Leg. 2nd C.S. p. 153, ch. 77.”

Prior to the enactment in 1953 the Acts •of 1929, 41st Leg., 2nd called Session, Sec. 1 of Art. 7258a read, in part, as follows:

“Art. 7258a. Sec. 1. On and after October 1st, 1929, the Tax Collector or his deputy of any county in this State containing 210,000 population or more according to the last preceding federal census, or any city or political ■subdivision or tax assessing district within any such county shall, upon request, issue a certificate showing the .amount of taxes, interest penalty and costs due, if any, on the property de.-scribed in said certificate.”

The State says the trial court erred in holding that the tax certificate issued by the tax collector covering the 131/3 acre tract of land was legal and binding; that the court erred in sustaining the pleas of jurisdiction of the court and in sustaining the pleas of limitation. It further says the court erred in holding that the Paper Company received and relied upon the tax certificate purporting to cover the 131/3 acre tract of land which showed that all taxes had been paid because such findings and conclusions are not supported by any evidence; that the trial court erred in holding that the collection of taxes, penalty and interest due on the second tract is barred by reason of the tax certificate on the 131/3 acre tract because such certificate is insufficient as a matter of law and the Paper Company failed to offer any evidence that it relied on such certificate at the time of the purchase, and subsequent thereto, and it was error for the trial court to deny recovery of the taxes, penalty and interest thereon.

The Paper Company says the court erred in finding and holding that the tax certificates issued on the 62 acre tract of land were insufficient as a matter of law.

There are counter-points by each of the appellants and by the appellees, Gentry and his bondsmen.

The State does not take the position that Art. 7258a is unconstitutional, and deos not assign this as a point of error. In Amerada Petroleum Corporation v. 1010.61 acres of land, et al., 146 F.2d 99, the Federal Court of Civil Appeals of the Fifth Circuit held that the 1929 Act of the Legislature was constitutional. As the result of this decision, the Attorney General of Texas, on January 16, 1951, ruled that Art. 7258a is constitutional by Opinion No. V-1143. In Opinion No. S-82, the Attorney General of Texas ruled that the provisions of Art. 7258a, as amended, in 1953, were mandatory, which required the Tax Collector or his deputy to issue a certificate showing the amount of taxes, penalty, interest and costs due, if any, on the property described in said certificate. Since there is no contention that Art. 7258a is unconstitutional by assignment of error, the constitutionality is not discussed.

It seems that the State was suing for delinquent taxes, penalty, interest and costs. The District Court has exclusive jurisdiction for such a suit and to foreclose a tax lien. A suit by the State is governed by different statutes and decisions than those between individuals. At least, the statute of limitation is not applicable. No authorities have been cited that are direct in point by the appellee Gentry and his bondsmen. Since the State did not plead any fraud or collusion and must rely upon the negligent issuance of the tax certificate, it still seems that the District Court has jurisdiction. Art. 7258a provides, in part, as follows:

“Sec. 2. If any such certificate is issued * * * any such Tax Collector or his deputy shall be liable upon his official bond for any loss resulting to any such County or city or political subdivision or tax assessing district or the State of Texas through the * * negligent issuance of any such certificate.”

It is doubtful that there are any cases direct in point. No authorities have been cited or located. The cases most direct in point are by the Supreme Court of Texas. Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 79 A.L.R. 983; State v. Kingham, Tex., 361 S.W.2d 191. In such cases the District Court was given jurisdiction because of the statutes involved and the penalties. It seems in this case that other tax collectors and their bondsmen may be liable for the taxes, penalty, interest and costs that were incurred by their tax certificates. Since there are questions of fact as to the amount of delinquent taxes, penalty, interest and costs that the former tax collector, Gentry, and his bondsmen may owe, the point of error is sustained, and that part of the trial court’s judgment is reversed and the cause is remanded.

The tax certificate issued on the 62 acre tract of land is referred to in the section as containing 164 acres. The 62 acre tract of land is out of the same survey as several other tracts of land that had previously been owned by G R. LaGrone. The certificate contains the true name of the owner, the abstract number, the party from whom it was acquired, the name of the original grantee, the total number of acres, and the value of the land as required by Art. 7204, V.A.T.C.S. The certificate shows that all taxes, penalty, interest and costs on the land through the year 1958 had been paid. The Paper Company secured the certificate for one and only one purpose: “To certify that all taxes, penalty, interest and costs had been paid prior to the purchase of the property”. The certificate was admissible in evidence, and according to the statute, it was conclusive proof of the payment in full of all taxes, penalty and costs covered by the same. There is only one decision to cite in support of this holding as to tax certificates issued on any Texas land. Amerada Petroleum Company v. 1010.61 acres of land et ah, supra, and only two opinions by the Attorney General of Texas hereinabove cited.

In 84 C.J.S. Taxation § 625d, pp. 1246-1249, we find the following:

“Tax certificate. A statute providing that a tax certificate showing payment of all taxes shall be conclusive evidence of full payment of all taxes provides protection against secret and undisclosed liens and is valid and constitutional. A certificate by a proper officer, as required by statute, showing that the tax on a promissory note has been paid, is presumptive evidence that official acts or duties have been legally performed, and where such certificate substantially conforms to the statute and shows payment of the tax on a note sued on, whether the proper amount was paid is not a proper issue.”

In 21 A.L.R.2d 1283, Sec. 5, statement that no taxes are due, supplementing 107 A.L.R. 573-575, we find the discussion of legal sufficiency of tax certificates by other states which holds them to be legal and binding. In 51 Am.Juris. 842, Sec. 961, we find the discussion of certificates required by statutes as to conditions of taxes against property. They discussed the uriconstitutionality of such a statute and the legal consequences of Acts extinguishing a tax lien, and citing authorities. It appears that Art. 7258a is actually a remedial statute. It gives the citizens of Texas a conclusive right to believe in and rely upon the acts of their officers. At the same time, it does not release or discharge anything except the tax lien. It gives the State the exclusive right to proceed against the Tax Collector and their bondsmen for the taxes, penalty, interest and costs. The purpose of the statute was to relieve the purchasers of property from the secret tax liens upon property for which they have purchased and paid, or obligated themselves to pay for. This relieves the purchaser of the responsibility of buying property and later having a tax lien forced upon the same and requiring him to pay off the tax lien in order to keep his property. It would not be wise to say that the state can create a tax lien upon property by two or more methods. In this case, the 62 acres of land was formerly in the name of C. R. LaGrone, along with other tracts of land in the same survey. He conveyed this tract, along with other tracts, to the Paper Company. Is it possible that the State of Texas, during the time that C. R. LaGrone actually owned the property and rendered it along with other tracts of land as a 164 acre tract, and is at the same time levying taxes on the 62 acre tract of land? At least the tax certificate contains all the requirements that are provided by the statutes.

The question of estoppel has been raised, and it seems that an estoppel will apply in cases where tax certificates have been issued. 51 Am.Juris. 845, Sec. 966; and 19 Am.Juris. 818, Sec. 166.

The tax certificate is legal and binding against the State and in favor of the Paper Company.

The judgment of the trial court assessing taxes, penalty, interest and costs, and creating a tax lien and foreclosing the same against the Paper Company on the 62 acre tract of land is reversed and judgment is here rendered that the State take nothing against the Paper Company by its suit. The judgment of the trial court as to the tax certificate on the 13]/$ acre tract of land in favor of the Paper Company is affirmed. The judgment of the trial court as to the dismissal of the suit as to Robert Gentry and his bondsmen is reversed and the cause is remanded for a trial upon its merits.