text:
    AMERICAN SURETY CO. OF NEW YORK et al. v. THOMPSON et al.
    No. 1445-5672.
    Commission of Appeals of Texas, Section A.
    May 16, 1931.
    Adair Dyer, J. H. Synnott, Turner, Rodgers & Winn, R. L. Stennis, and Bartlett, Thornton & Montgomery, all of Dallas, for plaintiffs in error.
    J. W. Hassell and F. J. Scurlock, both of Dallas, and Freeman, McReynolds & Hay, of Sherman, for defendants in error.
   CRITZ, J.

The. Court of Civil Appeals makes a very clear, extended, and correct statement of the issues of this case, and we refer to and adopt the statement of that court. 23 S.W.(2d) 820, 821.

It seems that originally J. D. Dyer and G. 5. Thompson each filed a suit in the district court of Dallas county against W. D. Morgan and the American Surety Company of New York on a bond executed by Morgan as principal and the surety company as surety. This bond was filed by Morgan at the time he filed in the office of the secretary of state an application for a permit to promote and sell stock in a corporation to be organized and chartered under the laws of the state of Texas in accordance with what was then known as the Blue Sky Law of Texas (General Laws, 23d Legislature, 1913, First Called Session, p. 66, c. 32). Also F. R. Carlton and M. Murphy were joined as defendants. The two suits were later consolidated and tried together in the district court. Based on a verdict of the jury on special issues, the court entered judgment against Morgan, the American Surety Company, Carlton, and Murphy and in favor of J. L. Dyer for $3,625, and in favor of G. S. Thompson in the sum of $3,915. These were the amounts paid by them respectively on stock subscriptions, with 6 per cent, interest from the time of payment. Morgan, American Surety Company, Carlton, and Murphy ■ all appealed, to the Court of Civil Appeals, where the judgment of the district court was affirmed. All four of said appellants in the Court of Civil Appeals have prosecuted separate writs of error to the Supreme Court, and all have been granted.

It seems from the record before us, and the opinion of the Court of Civil Appeals that on May 27,1920, W. L. Morgan made application to the secretary of state of this state for a permit to promote and sell stock in a corporation to be organized under the laws of Texas in accordance with what.was then known as the Blue Sky Law. The application gave the name of the proposed corporation, the purpose for which it was to be incorporated, the amount of the capital stock, the par value of each share, the commission to be paid on the sale of stock, the- amount of promotion fees, incidental expenses, attorney’s fees, charter fees, franchise taxes', and permit fees. The application further provided that the promoters and those having charge of the organization and sale of the stock in .said proposed corporation were to sell the stock as quickly as possible after receiving the permit, and that they were to pay all expenses of organization out of the 10 per cent, allowed for selling the stock. It was also stipulated that the stock was to be sold partly by the promoters and partly by commission brokers. The names and addresses of the promoters of the proposed corporation were stated, among them being Morgan, Sansom, and Carlton. Morgan, Carlton', and Riley were named as trustees who were to hold the money and other property collected by the promoters. The Guaranty Bank & Trust Company of Dallas, Tex., was designated as the depository. The application was sworn to by Morgan, and was accompanied by blank form of note and subscription blanks to be used. The application will be considered as in pursuance of and in conformity with the requirements of the statute.

At the time of the filing of the application, Morgan filed a bond in the sum of $10,000, executed by himself as principal and the American Surety Company of New York as surety. The contents of the bond are set out in the opinion of the Court of Civil Appeals, and for the purposes of this opinion we treat it as a statutory bond.

It is further shown that, at a meeting of the directors of this proposed corporation held in Dallas on June 3,1920, Morgan was authorized to sell stock for a period of two years. The amount of stock to be sold was $125,000, as set out in the application filed with the secretary of state. At this meeting it was stipulated that all money and notes collected were to be deposited in the designated depository subject to the order of the trustees. By-laws were adopted providing for officers and eight directors. At this meeting it was agreed to purchase machinery and equipment for operation. The sum of $12,500 was voted to Morgan to pay for a list of names for designs for covers to be furnished by him. Morgan was given a credit of $12,500 on the books of the company upon his filing this list.

It is shown that in June, 1920, Morgan visited J. L. Dyer, one of the appellees, for the purpose of soliciting his subscription for stock. After some negotiations, Dyer, on or about July 19, 1920, subscribed for 50 shares of stock ($5,000). It is also shown that Morgan opened negotiations with S. G. Thompson, and about the same date, July 19, 1920, secured his subscription for 50 shares of stock. On the same date Dyer and Thompson each executed four notes for $1,250 each for the stock subscribed for by them. These notes were payable one day after date, ninety days, six months, and nine months, respectively.

On or about September 14, 1920, another. meeting of the -board of directors was held which was attended by both Dyer and Thompson, and at this meeting they were both elected directors. Morgan' reported to this meeting the placing of orders for machinery, paper, etc., previously authorized, and, according to the testimony of Dyer and Thompson, said he was ready to begin business. It was also agreed at this meeting, Dyer and Thompson being present, that the concern should begin business and a building leased for that 'purpose. Dyer and’Thompson were called on for the payment of their first two notes, and bach, during or after the holding of this meeting, paid the amounts here sued for, Dyer paying $2,500 and Thompson $2,700. A building was leased in December and some machinery and equipment installed.

i. Later in the early part of the following February, Dyer and Thompson called on Morgan and requested him to show them a list of those who had subscribed for stock and to give them certain other information with reference to the notes and resources of the company. Morgan refused to furnish this information, and Dyer and Thompson then demanded a refund of the amounts they had paid and the surrender of their unpaid notes. Morgan refused to comply with these demands and Dyer and Thompson withdrew.

Some time later a letter was written on behalf of Dyer and Thompson refusing to consent to the manner in which the funds of the proposed corporation were being handled and demanding a return of the money they had paid. This demand was not met.

On March 5, 1921, after the above transaction, Morgan, Murphy, and Carlton, with the consent of all the parties interested, except Thompson and Dyer, filed in the office of the county clerk of Dallas county a declaration of trust. This instrument authorized the trustees named to take charge of the property and money of the proposed corporation and engage in practically the same business that the proposed corporation was to have engaged in. Business was begun and conducted by the trustees in the manner authorized by the declaration of trust until March, 1922.

On March 14, 1922, Morgan, Murphy, and Carlton incorporated the concern, using the assets of the trust estate. The subscribers to this charter were W. L. Morgan, M. Murphy, and F. R. Carlton. Dyer and Thompson never consented to this. The suit was filed on May 24, 1921.

We wish here to state that we have used the statement of the Court of Civil Appeals with little change in making this statement.

Before proceeding further with this opinion, we deem it expedient to quote the following provisions of chapter 32, General Laws First Called Session, 33rd Legislature, 1913:

“Sec. 4. * * *
“No permit shall be granted unless there shall appear upon the subscription lists and contracts of such corporation or proposed corporation, in bold type, the amount of the commissions, promotion fees and other estimated expenses incident to the sale of such stock, and the interest which the officer, agent, employee or promoter selling or contracting to sell such stock has in such sale; nor shall such permit be granted until the applicants therefor have entered into a bond for not less than one thousand dollars. ($1000) nor more than one hundred thousand dollars ($100,000), the same to be fixed by the secretary or commissioner at not more than ten per cent of the stock proposed to be issued. The said bond shall be payable to the secretary or commissioner as the case may be, and his successor in office, conditioned that the facts set forth in the application for such permit, and the proof and statements offered to such secretary or commissioner, upon which the application is based, are true, and that they will comply with the provisions of this act in the sale of the stock of such corporation or proposed corporation. Said bond may be made with individual sureties or a surety company authorized to do business in the State of Texas, and the bond shall be approved by the secretary or commissioner.”
“Sec. 6. Any person who shall be induced to purchase any stock of any corporation or proposed corporation by the officers, agents, employees, promoters or trustees, by reason of any misrepresentation of any material fact concerning such stock, such person or persons shall have the right to bring suit upon the bond above provided for, and such bond shall be subject to, and security for, such person so purchasing the stock, provided that such person shall not be entitled to recover more than the money paid, or the actual value of the property given, or the labor performed, in exchange for such stock, with legal interest from the date of the payment or the performance of the services, or the transfer of the property. ⅜ ⅜ ⅜
“Sec. 7. All moneys or other things of value collected by such corporation or the promoters of a proposed corporation, for the sale of its stock, or contract for the sale of its stock, shall be deposited by said corporation to its .credit, or by the promoters of a proposed corporation, to the credit of its proposed officers 'or trustees, with the exception of the amount allowed for commissions, promotion fees and other incidental expenses, with a bank, bank and trust company or trust company incorporated under the laws of this State, or of the United States.”.
“Sec. 12a. At the expiration of two years from the granting of a permit under this act if the proposed corporation has failed to organize, then all subscribers must be refunded the amount paid to the promoter or trustee; provided, however, that the secretary or commissioner may grant an extension of time for the sale of securities.”

There are four applications for writs of error presented here, all of which were granted. These application's present numerous assignments of error and propositions thereunder. Furthermore, briefs are filed by the several parties, together with numerous written arguments. The record itself is very voluminous. Taking all of these things into consideration, it is manifestly but of the question for us to take up and discuss all of the assignments presented without extending this opinion to such a length as to be unjustified. We shall therefore content ourselves with a general discussion of the case.

It will be noted, in fact it is argued by Dyer and Thompson, that their suit is based on two general grounds, (a) on the bond under the statute; (b) and for conversion.

The suit on the bond is against Morgan as principal and the surety company as surety, and is based on two statutory grounds, fraud and failure to complete the organization of the corporation within two years.

The suit against Morgan, Murphy, and Oarlton is based on alleged conversion of the property of the proposed corporation when the trust was created and the assets of the proposed corporation transferred to the trust without the consent of Dyer and Thompson. The record shows that Dyer and Thompson recovered on all grounds alleged.

To our minds, the above brings about a rather peculiar and impossible situation. The suit against Morgan and the surety company for fraud, while based on the statute, is in the nature of an action in equity for a rescission. On the other hand, the suit against Morgan, Murphy, and Carlton for the value of the property converted by them when the trust estate was created, and the assets of the proposed corporation transferred thereto, is an action at law for damages. It follows that both these remedies cannot be asserted in the same suit, and both recovered on. In other words, Dyer and Thompson cannot recover against Morgan and the surety company in an action on a bond for fraud, and also in the same suit recover against Morgan, Murphy, and Carlton for the conversion of the assets involved.

In connection with the above holding, we call attention to the fact that the judgment against Morgan and the surety company on the bond for fraud is in exactly the same amount as the judgment against Morgan, Murphy, and Carlton for conversion and failure to incorporate within two years. Manifestly this is erroneous.

If the judgment on the bond is based on ' fraud, under section 6, supra, then under the statute the measure of recovery is the amount paid, with 6 per cent, interest from the date of payment. -

If the judgment on the bond is based on failure to incorporate within two years, under section 12a of the act, then the measure of recovery is the amount paid, and no provision for interest is made. Of course under the general law interest would he due from the date the money should have been refunded.

If the recovery is on the alleged conversion, then the measure of damages would be the value of the interest of Dyer and Thompson in the property converted, with 6 per cent, interest from the date of conversion.

The discussion above demonstrates that Dyer and Thompson cannot in the same suit maintain the action on the bond for fraud and the action for conversion. The two actions are absolutely inconsistent and conflicting. This is because, in order for a recovery to be had on the bond for fraud, the purchase of the stock must be repudiated, while, in order for a recovery to be had in an action for damages for conversion, the purchase of the stock must be affirmed. Of course there are instances in which remedies are cumulative, and in such cases two or more remedies may be asserted in the same suit, but in cases such as this, where the plaintiff must either affirm or repudiate the original contract, he must make an election.

Also we think the trial court erred in refusing to submit the issue of value as applied to the action for conversion. As to this the measure of damages is the value of the interest of Dyer and Thompson in the properties of the corporation at the time of the conversion, with legal interest from that date, and not from the date they paid their money. The Court of Civil Appeals holds that the evidence is conclusive on this question. We disagree with this holding. The evidence is conclusive as to the value of the money paid in by them, but this is not the test.

In view of the fact that this cause must he reversed, there is another matter that we deem it proper we should express our views on. The verdict of the jury shows that they found that Dyer and Thompson did not contract in writing for the stock in question. Attached to the motion for a new trial in the district court are the orginal written subscription contracts therein alleged to have been executed by Dyer and Thompson, respectively. These contracts are attached to the motion as newly discovered evidence, and it is contended that a new trial should have been granted on account of the discovery of these contracts after the trial. We do not consider it necessary for us to pass on the question as to whether a new trial should have been granted . on account of the discovery of these contracts, as the case must be reversed on the matters we have already discussed. Regardless of that matter, it is evident that on another trial these written subscription contracts will probably be in evidence, and admitting, for the purposes of this opinion, that they are genuine, they demonstrate conclusively that both Dyer and Thompson contracted in writing for the stock in question. Furthermore, these instruments demonstrate that both Dyer and Thompson were therein fully apprised of the fact that the company was not incorporated or authorized to engage in business at the time they executed these contracts. Also the evidence discloses, as shown by the statement we have made, and the statement made by the Court of Civil Appeals, that about September 14, 1920, Dyer and Thompson were elected directors of the proposed corporation and agreed for the company to use its assets and engage in business on or about such time. It is further shown that, at a meeting held on such date, at which they were both present, it was agreed that a building should be rented for the purpose of engaging in business. If Dyer and Thompson, knowing that the company had no charter, and was not authorized to engage in business, agreed for the assets of the company to be taken and used for such purposes, they agreed to a novation of the original contract which the bond was made to secure, and thereby release the surety. The subscription contracts show that they certainly knew the company had no charter and was not authorized to engage in business at the time they subscribed for the stock. To demonstrate this, we here reproduce the subscription contracts:

“Subscription Blank of the Southwestern Tablet Company of Dallas.
“In the State of Texas. Capital stock, $125,-000.00. Shares $100.00 each.
“I, G.‘ S. Thompson, the undersigned of the County of Dallas, State of Texas, do hereby subscribe for 50 shares of the capital stock of the Southwestern Tablet Company, at the par value of $100.00 each, and hereby agree to pay 50% of such subscription cash or on demand and the remaining 50% as called for by the directors, but it is understood that the call for the remaining 50% shall not be called for until the Company is duly incorporated under the laws of Texas, the unpaid balance is to bear interest at the rate of 8% per annum until paid.
“It is also understood and agreed that unless all of the capital stock of said corporation is not subscribed in good faith, and by responsible parties within a reasonable time, and the Company incorporated immediately after all the capital stock is subscribed, then this subscription shall be null and void and any money paid by me shall be returned, otherwise to be in full force and effect.
“It is agreed that the amount of commission, and all other incidental expenses incident tó sale of such stock shall not exceed ten per cent, of the capital stock. It is also agreed to and understood that the commission paid for sale of shares mentioned herein shall not exceed ten per cent, of the amount of this subscription.
“Witness my hand, this the 19 day of July, A. D. 1920.
“Géo. 8. Thompson, Purchaser.
“W. L. Morgan, Ag'ent. 3402 Harvard Ave., Address. City.”
The contract signed by Dyer is the same as the above, except it contains his name and is signed by him.
We recommend that the judgments of the Court of Civil Appeals and the district court be both reversed, and the cause remanded to the district court for a new trial.

CURETON, C. J.

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

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


source: Caselaw Access Project

author: HARVEY, P. J. CURETON. C. J.

license: Public Domain

text:
    LIMESTONE COUNTY v. ROBBINS.
    No. 1442-5661.
    Commission of Appeals of Texas, Section A.
    May 16, 1931.

      Lewis M. Seay, Scott Reed, and Carl Cannon, all of Groesbeek, for appellant.
    L. W. Shepperd, of Groesbeek, for appellee.
   HARVEY, P. J.

The Court of Civil Appeals has submitted the following certificate containing certified question:

“This suit was instituted by appellee, W. A. Robbins, against appellant, Limestone County, to recover the sum of $18,779.84, which he alleged was owed him by appellant as compensation for certain services rendered by him as tax collector of said county. Appellee alleged that he was the duly elected, qualified and acting tax collector of said county during each of the years 1923 to 1926, inclusive; that he performed all the duties incumbent upon him as such officer; that as such he collected delinquent taxes owed to appellant amounting in the aggregate to many thousands of dollars; that all sums so collected were paid over by him as directed and required by law; that he collected from each delinquent taxpayer the total amount charged against him, and in addition thereto the further sum of five per cent on such amount; that he was entitled to such further sum so collected as compensation for making each such collection. He further allege’d that the several additional sums so collected by him amounted in the aggregate to $18,081.16. He further alleged that he prepared a delinquent tax record for said county for the years 1921 and 1922; that such record so prepared conformed to all the requirements of law; that the same was accepted and approved toy appellant August 6th, 1923, and that he was entitled to receive and retain as compensation for the preparation of the same the sum of $464.88. He further alleged that he prepared in like manner a delinquent tax record for said county for the years 1923 and 1924; that the same was accepted and approved by appellant on August 10th, 1925, and that he was entitled to receive and retain as compensation for the preparation thereof the sum of $233.80. He further alleged that all said sums which he was so entitled to receive and retain were paid by him to appellant by paying the same to appellant’s treasurer; that all such payments were made because of an erroneous ruling of the Attorney General of this state to the effect that appellee was not entitled to retain the same in addition to the maximum amount or salary allowed him under the provisions of the general fee bill; that all such payments were made under a mistake of law and fact mutual between him and appellant, and which mistake was not discovered and could not have been discovered prior to the month of January, 1929. He further alleged that he had presented to the commissioners court of said county a claim for the several sums due him as aforesaid, and- that said claim had been rejected.
“Appellant presented a general demurrer to said petition and special exceptions based on various provisions of our statutes of limitation, all of which were overruled.
“Appellee’s demands were based on the provisions of section 3 of chapter 147 of the General Laws of the 34th legislature, pages 250, 252, and the construction given the same in the case of Ourtin v. Harris- County, 111 Tex. 568, 574, 575 [242 S; W. 444], Appellant specially pleaded the several acts of the legislature hereinafter set out in bar of any recovery for services rendered by appellee after such acts, respectively, took effect. -Appellant also pleaded the statutes of limitation of two and four years, and further pleaded that said several sums of money sued for had been paid over to it by appellee voluntarily, and that he. for that reason could not recover the same. The pleadings of the parties are here made a part of this certificate for all purposes.
“Appellee was the only .witness examined. He testified that he prepared the two delinquent tax rolls, that his charges therefor were the proper amounts, respectively, for such service, and that he had never received anything therefor. He further testified that five per cent on all delinquent taxes collected by him during the year 1923 amounted to $10,521.66;, during the year 1924 to $1,689.55, and during the year 1925 and prior to the 1st day of September thereof, to $7S0.70. He did not testify in connection with the collection of delinquent taxes that he performed the specific duties required by the provisions of said act of the 34th legislature, upon the authority of which his claim is based, as ■enumerated in the case of Ourtin v. Harris County, supra [111 Tex.] page 577 [242 S. W. 444], He did testify, however, that tlie specific five per cent on delinquent taxes claimed by him did not constitute any part of such taxes, interest or penalties, but was additional thereto, and in substance, that he so understood the statute. He further testified that he received his maximum compensation or salary under the provisions of the general fee bill for each of said years, but that he did not know until the decision in the case of Bitter v. Bexar County [Tex. Com. App.] 11 S.W.(2d) 163 was rendered, that he was entitled to the statutory compensation provided for preparing delinquent tax rolls and collecting delinquent taxes in addition to said regular maximum compensation or salary, for any part of the time embraced in his claim herein. He further testified, in substance, that the additional five per cent so collected by him was paid into the general fund of appellant county, and that no part of the same was paid to the state. He further testified that said sums were so paid over by him to appellant ‘under this mutual mistake of law and fact’ and that appellant had refused and rejected his claim therefor. The statement of facts is made a part of this certificate for all purposes.
“The case was tried to the court and judgment rendered in favor of appellee against appellant for five per cent on all delinquent taxes collected between January 1st, 1923, and September 1st, 1925, in the sum of $13,-068.94; for preparing the delinquent tax roll for the years 1921 and 1922 in the sum of $464.88, and for preparing the delinquent tax roll for the years 1923 and 1924 in the sum of $233.80.
“Appellant assails appellee’s right to recover any of the sums sued for herein on the following grounds:
“ ‘(a) That the several sums sued for were paid to its treasurer by appellee voluntarily and .without protest or reservation of any kind.
“ ‘(b) That the recovery of any of the sums so sued for is barred by our statutes of limitation ; and in that connection, that there was no evidence of any such mutual mistake as would prevent the running of such statutes ; and that the act of May 22nd, 1929, known as chapter 95 of the General Laws passed by the first called session of the 41st legislature, is invalid for various reasons and ineffective to authorize the maintenance of this suit and ineffective to support a recovery herein, especially as against its pleas of limitation. Appellant in this connection further calls attention to the fact that said chapter 95 was repealed by an act of the legislature, approved February 14th, 1930, and affective on approval.’
“Appellant further contends that appellee, if entitled to recover any sum sued for herein was not entitled to recover any such sum which accrued:
“(a) After the act of May 26th, 1923, known as chapter 13 of the General Laws passed at the second called session of the 38th legislature became effective; or in the alternative,
“(b) after the act of June’ 21st, 1923, known as chapter 21 of the General Laws passed at the third called session of said legislature became effective; or in the final alternative, as held by the trial court,
“(c) after the Revised Statutes of 1925, and especially Article 7331 thereof, became, effective on September 1st, 1925.
“Appellant further contends that appellee was not entitled to recover any of the sums sued for as his five per cent commission herein for collection of delinquent taxes, because he did not prove affirmatively that he had performed in connection therewith the several acts required by the statutes and enumerated in the opinion of the court in Curtin v. Harris County, supra [111 Tex.]1 page 577 [242 S-. W. 444J as aforesaid.
“All said contentions are presented in appellant’s brief and further statement of the same is not deemed proper or necessary. Ap-pellee calls attention to the fact that he sues in this case for the specific five per cent collected by him from the delinquent taxpayers in addition to all delinquent taxes, interest and penalties charged against them, respectively, and claims that such sum belonged to him and not to appellant. All the aforesaid issues are discussed in the briefs of the respective parties, copies of which will be transmitted with this certificate, as provided by law.”

We deem it unnecessary to set out the several certified questions, since their purport may be gathered from our discussion of the case.

It appears that the officers of Limestone county, during the period of time involved in this controversy, were subject to the provisions of the maximum fee bill. At no time during this period was there any law which required or authorized the tax collector to collect, from any delinquent taxpayer, 5 per cent, in addition to the taxes, penalties, and interest due by such taxpayer. There was no statute, either valid or invalid, which purported to require the tax collector to pay over to the county the sums thus unlawfully collected from the taxpayers. The sums made up of this 5 per cent, were not comprehended by the 1929 act, hereinafter discussed. They were yolxmtarily paid oyer to the county by Robbins, with full knowledge on bis part of all the relevant facts, and without the slightest deception or compulsion on the part of the county authorities. The payments were made by Robbins purely as result of a mistake of law. For these reasons, if for no other, an action does not lie in favor of Robbins for the recovery of those sums. Galveston County v. Gorham, 49 Tex. 803; Gilliam v. Alford, 69 Tex. 267, 6 S. W. 757; Taylor v. Hall, 71 Tex. 216, 9 S. W. 141.

The claim of Robbins to a commission of 5 per cent, of the delinquent taxes, etc., which were collected by him, and by him paid over to the county, need not be noticed any further than to say that he would not, in any event,, he entitled to judgment for this compensation, unless he performed the services for which such compensation was provided. Curtin v. Harris County, 111 Tex. 568, 242 S. W. 444. It was incumbent upon' him to plead and prove that he performed those services. This he has failed to do.

We now pass to a consideration of the claim of Robbins for compensation for his services in preparing the delinquent record supplements for the years 1921 and 1922. In section 3 of an act passed in the year 1915 (chapter 147, General Laws of the Thirty-Fourth Legislature, Regular Session), it was provided, among other things, that, “in addition to the compensation and costs now allowed by law,” the tax collector should be entitled, for making up the delinquent tax records or supplements, to “the sum of 5 cents for ■ each and every line of yearly delinquencies entered on said delinquent record or supplement, such compensation to be paid out of the general fund of the county upon the completion of said record or supplement.” This compensation was in nowise affected by the provisions of the maximum fee bill. Curtin v. Harris County, supra. By section 2 of chapter 64 of the General Laws passed in the year 1919, at the Second Called Session of the Thirty-Sixth Legislature, certain provisions of section 3 of the 1915 act, which provisions related to the bringing of suits for delinquent taxes by county and district attorneys, were amended. In the same act the above provisions of section 3 of the 1915 act, providing compensation for the making up of delinquent, tax records or supplements, were attempted to be so amended as to bring s'aid compensation within the operation of the maximum fee bill. But, on account of defective caption to the 1919 Act, an amendment of section 3 of the former act, in the respect last mentioned, was not effected. Bitter v. Bexar County (Tex. Com. App.) 11 S.W. (2d) 163. Consequently, this compensation remained unaffected by the maximum fee hill when the 1921-1922 supplement was made up by Robbins and approved, on August 6, 1923, by the commissioners’ court. But with respect to the claim of Robbins for compensation for making up the 1923-1924 supplement, a different situation prevails. By an act approved May 26, 1923 (chapter 13, General Laws, Thirty-Eighth Legislature, Second Called Session [Vernon’s Ann. Civ. St. arts. 7323-7326, 7328, 7329, 7331-7336, 7343]), which act became effective August 15, 1923, section 3 of the 1915 act, as amended in 1919, was entirely repealed; thus taking away the only basis for a claim that the tax collector’s compensation for making delinquent tax records or supplements did not come within the scope of the maximum fee bill. Counsel contends that the caption of the act of May, 1923, does not show this to have been among the purposes of the act. The caption, however, is quite clear in this respect. It is there declared that the purpose of the act was, among other things, the “repealing Section 3, Chapter 147, of the General Laws of the State of Texas, passed at the Regular Session of the Thirty-fourth Legislature, as amended by Section 2, Chapter 64, of the General Laws of the State of Texas, passed by the Second Called Session of the Thirty-sixth Legislature.” tn the respect under consideration here, said act of May, 1923, was valid. None of the provisions of the subsequent act, approved Juné 21, 1923 (chapter 21, General Laws, Thirty-Eighth Legislature, Third Called Session [Vernon’s Ann. Civ. St. arts. 7326, 7328, 7331-7335, 7345]), which became effective September 14, 1923, purport to exclude from the operation of the maximum fee bill the compensation allowed tax collectors for making up delinquent tax records or supplements.

We now take up the act of 1929 (chapter 95, General Laws, Forty-First Legislature, First Called Session). This act was in effect when this case was tried in the court below. Relevant sections of the act read as follows:

“Section 1. That any person in the State of Texas who formerly served as a duly elected and qualified Tax Collector of any county of this State while subject in that capacity to the terms and provisions of the law known as the Maximum Fee Bill, and who, during such time, collected and paid over to the Treasurer of such county the,fees and commissions set out and provided for in Section 3 of Chapter 147, Acts of the Regular Session of the 34th Legislature, 1915, or any part of such fees and commissions, is hereby authorized to bring suit in any competent court of this State against such county so served by him to collect and recover all such fees and commissions so paid over by him, provided such suit shall be brought in the county where such fees and commissions were collected and erroneously or wrongfully paid over as hereinabove set out.”

“Sec. 3. In case any such suit be brought against any county in this State for the purposes set out in 'Section 1 of this Act, no plea of limitation shall be available to such county as a defense to any such suit, and in any cross action filed by a county against the 'plaintiff in any suit authorized by this Act for money due the county by the Tax Collect- or, the plea of limitation to such cross action shall not be available to the plaintiff.”
“Sec. 5. The fact that the Supreme Court of Texas in the case of Bitter v. Bexar County, 11 S.W.(2d) 163, has held that Section 2, Chapter 64, of the Acts of the Second Called Session of the 36th Legislature, 1919, is unconstitutional, and the further fact that many Tax Collectors, acting under said Ac-t, have erroneously paid money to some of the counties of this State, create an emergency, and a public necessity that the Constitutional Rule requiring bills to be read on three several days be suspended, and that this Bill be put. on its third reading and final passáge, and it is so enacted.”

In view of the series of confusing circumstances which, prior to the decision in the Bitter Case, attended the right of a tax 'collector relative to the compensation in question, 'we are 'satisfied that the Legislature ■meant, by passing said act, to give to any tax collector, who came within the purview of the act, a conditional right of action for the recovery of such compensation as had justly accrued to him under the provisions of section 3 of the 1915 act, but which, through mistake of law, had not been received or retained by him. This new right of action, the provisions of the act show, was conditioned upon the tax collector’s surrender of any right, which might have become vested in him, to set up the defense of limitation against any cross-action which the county might file against him in the suit. The Legislature, of course, had the authority to attach this condition to the right conferred. .The county insists, however, that, because of the inhibition by the Constitution (section 16, art. 1) against the passage of any retroactive law, the Legislature did not have authority to lift the bar of limitation from those claims against the county which had become barred prior to the passage of the 1929 act. This contention of the county cannot be maintained on principle. A county is a political subdivision of the state. The privilege possessed by a county to set up the statutes of limitation as a defense against a just debt emanates from the Legislature, and is subject to the legislative will. The statutes of limitation .bar the holder of the debt from access to the courts, but the debt is not extinguished. The removal of the bar does not impose a new debt against the county, or involve the bestowal of a gratuity on the debt holder, but simply opens the way for the enforcement of the county’s moral obligation to pay the old debt. That a political subdivision of the state may be subjected to retroactive laws passed by the Legislature, which convert into a legal obligation that which before was but a moral one, is exemplified by those decisions of our courts which sustain statutes validating county bonds that originally carried no legal obligation against the county. And, too, this power of the Legislature, with specific reference to the removal of the bar of limitation from county debts, was recognized in Caldwell County v. Harbert, 68 Tex. 325, 4 S. W. 607; the opinion in which case having been written by Justice Stayton, who wrofe the opinion of the court in Mellinger v. City of Houston, reported in the same volume of the state reports. 68 Tex. 37, 3 S. W. 249. The question involved and decided in Milam County v. Bateman, 54 Tex. 153, differs in material respects from that now under consideration. In that case, there was no unsatisfied obligation of the county, either legal or moral, involved.

It is to be noted that the Legislature, in the year 1930, repealed the 1929 act. Chapter 3, General Laws of the Forty-First Legislature, Fourth Called Session. The conditional right of action which was conferred on the respective tax collectors by the 1929 act became vested when that act became effective. The Legislature, because of the constitutional restriction against retroactive 'laws, had no authority afterwards to take away this right of action altogether, even though no action had been instituted. Mellinger v. City of Houston, 68 Tex. 37, 3 S. W. 249; Cathey v. Weaver, 111 Tex. 515, 242 S. W. 447. The repealing act had no other effect on this conditional right of action than to bring it under the operation of the general statutes of limitation, which, prior to that time, had not begun to run against it. The present action, as already shown, was pending when the repealing act was passed. As a consequence, the statutes of limitation have not run against this particular action at all.

What has been said sufficiently answers the certified questions, and we recommend that they be so answered.

CURETON. C. J.

The opinion of the Commission of Appeals answering the certified questions is adopted and ordered certified.


author: LATTIMORE, J. HAWKINS, J.

text:
    HARBERT v. STATE.
    No. 13910.
    Court of Criminal Appeals of Texas.
    Feb. 11, 1931.
    Rehearing Denied May 20, 1931.
    J. E. Taulbee, of Georgetown, for appellant.
    Lloyd W. Davidson, State's Atty., of Austin, for the State.
   LATTIMORE, J.

Conviction for transporting intoxicating liquor; punishment, one year in the penitentiary.

There are three bills of exception in the record. Bill No. 2 brings forward all of the objections and exceptions taken to the court’s charge. We find nothing in any,of said exceptions which presents any erroneous matter. Bill No. 3 complains of the refusal of the trial court to grant the motion for new trial, and sets out at length the entire motion. We perceive nothing in this bill of exceptions.

Bill of exceptions No. 1 complains of the reception of the testimony of the sheriff, in substance, that on the morning after appellant’s arrest he found in the rear of Bowmar’s market in Burnet, Tex., a gallon jug in which were a few drops of whisky. The objections set out in the bill are that, if anything was found by the witness, it was a long time after the arrest of the appellant, and was not in appellant’s presence, and that there was nothing in the testimony to show that the condition in the rear of the market was the same as it was on the preceding day. There is nothing in the bill of exceptions verifying the truth of the objections thus stated, nor do we think them tenable. We are of opinion, however, that, in view of the testimony in this case, and the fact that appellant was given the minimum penalty, even if said bill of exceptions No. 1 was in condition to be considered, the admission of the testimony therein objected to could not be held an error sufficient to call for a reversal.

The testimony is short and conclusive. A negro man named Hall testified that he caine in a car with a negro woman from Lampasas to Burnet on the day in question, reaching Burnet'about 3:30 in the afternoon. He said they had no whisky or liquor of any kind in the car. He further testified that soon after reaching Burnet he saw appellant on the street and invited him to get in the car and ride with them. He testified that soon after appellant got'in the car he asked witness if he wanted a drink, and then repeated the question. Witness told him he did not object, and appellant said to him “Let’s turn in here —I have a pint of whiskey and I want to get it.” Witness said he told appellant that the pint he had would be enough. Witness said they drove on over to where Elnora Green was working. Elnora Green seems t,o have been a colored woman. About the time they drove up to Elnora’s house or shortly afterward, the sheriff, Mr. Ray, appeared on the scene. Hall said he noticed appellant fingering around with his shirt, and that he heard a bottle fall on the floor, and then he saw the sheriff pick that bottle up from between appellant’s feet. The state introduced Mr. Bow-mar, who testified he had a meat market, and that appellant worked for him sometimes, and that several times on the afternoon in question he saw appellant come through the back of his market, and that he appeared to be under the influence of liquor. Mr. Naugiller. testified for the state that about 2:30 that afternoon he saw appellant who appeared to be under the influence of intoxicating liquor, with something under his arm. Elnora Green testified for the state that when appellant and Hall drove up in front of her place appellant asked her if she wanted a drink and she. told him yes; that appellant reached down in the car and got a bottle. She said she went outside of the yard and to the ear, and that at the time appellant picked the bottle up it was setting against the foot of the woman in the car; that he picked it up with his left hand and handed it to her. She said that at the time appellant picked up the bottle to give her a drink of whisky he was under the influence of intoxicating- liquor. Sheriff Ray testified that as he walked up to the car in question he saw appellant’s arm come'up in a manner indicated by a gesture made by witness, and go down in another manner indicated. He says he took the bottle of whisky away from appellant on that occasion. That when he took the bottle away from him he told him to consider himself under arrest. He said the bottle contained whisky. I-Ie testified that early the next morning he went over to Bow-mar’s market and in the back of the market he found a gallon jug containing a few drops of whisky. He testified that witness Hall was sober. Appellant did not testify, nor did he introduce any evidence. We deem the testimony of appellant’s guilt ample.

No error appearing in the record, the judgment will be affirmed.

On Motion for Rehearing.

HAWKINS, J.

'[2-4] Appellant insists that bill of exception No. 1 is sufficient to present error, and that the error is such as calls for a reversal. The bill recites as a fact that the sheriff was permitted to testify that on the morning after appellant’s arrest the witness found a jug in the rear room of Bowmar’s market which jug had in it a few drops of whisky. One objection urged to this evidence was that the jug was found “long after appellant’s arrest.” This objection is supported by the certificate of fact in the bill, but because the jug was not found until after appellant’s arrest would not make evidence of the finding inadmissible, if the jug had been otherwise properly connected with appellant. The other objections urged against the evidence were: (a) That appellant was not present when the jug was found; and (b) that the conditions in the rear of the market were not shown to have been the same as on the day preceding. Appellant not being present when the jug was found would not render proof of its finding objectionable, if otherwise admissible. No facts are recited in the bill verifying the truth of the two objections last mentioned. It would be impossible to know whether they had foundation without going to the statement of facts to verify the matter. This we are not required to do. We are referred to Hinds v. State (Tex. Cr. App.) 29 S.W.(2d) 768, as authority for rejecting the evidence complained of. The opinion in that case does not disclose the objections against the evidence there sought to be excluded." Reference to the orig'inal record reveals that the objection to evidence regarding a certain bottle was upon the specific ground that “no evidence was introduced tending to connect defendant with the bottle offered in evidence.” The bill of exception then sets out in detail all the evidence upon the point mentioned, thus giving in the bill all the information upon which this court acted. As against the objections urged in the •present case, the ruling of the trial court cannot be held to have been erroneous.

It is the opinion of the writer that the evidence about finding the jug, as against proper objection, would not have been admissible. Under all the facts, however, it seems of so little probative force one way or the other as would make it of doubtful propriety to base a reversal upon it, even if the point was properly before us. The guilt of appellant seems certain. All the evidence is positive that no whisky was in the ear until appellant entered it. Hall was sober. Appellant was drunk. Immediately when appellant entered the car he asked Hall if he wanted a drink. He also asked another state’s witness the same question and was in the act of producing a bob-tie when the sheriff appeared on the scene. Appellant offered no testimony whatever. He received the lowest penalty, and, even if we were in a position to hold the evidence regarding the finding of the jug upon the day after appellant’s arrest was improperly received, this court could with difficulty justify a reversal upon that circumstance, in view of all the other evidence in the case and the punishment assessed.

The motion for rehearing is overruled.


author: CALHOUN, J.

text:
    JACKSON v. STATE.
    No. 14388.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CALHOUN, J.

Offense, the unlawful manufacture of intoxicating liquor; punishment, one year in the penitentiary.

This record is before us without either statement of facts or any bill of exception, and nothing is presented for review.

The judgment is affirmed.

PEE OUEIAM.

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.


author: CHRISTIAN, J.

text:
    JONES v. STATE.
    No. 14147.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Storey, Leak & Storey, of Vernon, Guinn & Devereux, of Jacksonville, and Guinn & Guinn, of Busk, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is making a false entry in a book of a state bank; the punishment, confinement in the penitentiary for two years.

Omitting the formal parts, the indictment reads as follows: “W. C. Jones was then and there the duly elected, qualified and acting cashier arid agent of a certain state bank to-wit: First State Bank of Ponta, Texas, which had theretofore been duly incorporated, created, and organized under and by virtue of the laws of the State of Texas, and hereinafter referred to as ‘said bank’, and which said bank was then and there carrying on and conducting a banking business in Cherokee County, Texas, under the banking laws of the State of Texas, and the said W. C. Jones, while cashier and agent as aforesaid of said bank, had possession and control of the books and records of said bank and on said date, one Mrs. S. P. Bichey, Sr. had an account in said bank, with a balance in her favor in excess of one thousand one hundred forty six and no/100 ($1,146) dollars, which account was carried on a book, record or statement of said bank known and designated as the individual ledger, and which ledger showed that said bank was on said date indebted to the said Mrs. S. P. Bichey, Sr. in excess of one thousand one hundred forty six and no/100 ($1,146) dollars and the said W. C. Jones on said date did then and there unlawfully make a false entry in said individual ledger showing the account of said Mrs. S. P. Bichey, Sr. in this to-wit: The said W. C. Jones did then and there charge the account on said ledger of the said Mrs. S. P. Bichey, Sr. with the sum of one thousand one hundred forty six and no/100 ($1,146) dollars with intent then and there on the part of the said W. C. Jones to injure and defraud said bank and to deceive the officers of said bank, the banking commissioner and examiner and special agents authorized by law to examine the affairs of said bank.”

Appellant filed a motion to quash the indictment on the ground that it contained no aver-ments showing wherein the entry was false. It is apparent from an examination of the indictment that the facts relied upon to establish the falsity of the entry are not alleged. In 7 Corpus Juris, page 577, it is stated, that the facts to establish the falsity of the entry should be set out. In dealing with a statute substantially the same as ours, it was held by the Supreme Court of New Hampshire that it should be averred in the indictment that the entry was false, and that the facts relied upon to establish its falsity should be set out. State v. Piper, 73 N. H. 226, 60 A. 742. In this state, an indictment for perjury, to be sufficient, must set out the particulars in which the statement was false, and show the truth in relation thereto. Branch’s Annotated Texas Penal Code, § 842; Rohrer v. State, 13 Tex. App. 163; Turner v. State, 30 Tex. App. 691, 18 S. W. 792; Waddle v. State, 69 Tex. Cr. R. 334, 153 S. W. 882. The reason for the rule is that the accused is entitled to know wherein and to what extent the statements alleged to have been made by him were false. Crow v. State, 49 Tex. Cr. R. 103, 90 S. W. 650. We think it is obvious that the same rule is applicable to the present indictment.

Under our statute all that is essential to - constitute the offense must be sufficiently charged and cannot be aided by in-tendment. The facts constituting the offense must be set forth so that the conclusions of law may be arrived at from the facts so stated. Articles 396 and 397, C. C. P.; Ford v. State, 108 Tex. Or. R. 626, 2 S.W.(2d) 265. While the law does not require minuteness of de'tail, it demands that the particular offense be set out with such certainty that a presumptively innocent man seeking to know what he must meet may ascertain fully therefrom the matters charged against him. Ford v. State, supra; Harden v. State, 85 Tex. Cr. R. 220, 211 S. W. 233, 4 A. L. R. 1308; Middleton v. State (Tex. Cr. App.) 25 S.W.(2d) 614.

Giving effect to the principles controlling, the opinion is expressed that the motion to quash should have been sustained.

The judgment is reversed, and the prosecution ordered dismissed.

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.


author: HAWKINS, J.

text:
    MOORE v. STATE.
    No. 14389.
    Court of Criminal Appeals of Texas.
    May 6, 1931.
    Wm. Kennedy, of Groesbeck, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, J.

Conviction is for assault with intent to murder; punishment assessed at ten years’ confinement in the penitentiary.

The record is before this court without statement of facts or bills of exception. The indictment and judgment appear to be regular. Nothing is presented for review.

The judgment is affirmed.


author: CHRISTIAN, J. MORROW, P. J.

text:
    BOYD v. STATE.
    No. 14305.
    Court of Criminal Appeals of Texas.
    April 22, 1931.
    Rehearing Denied May 20, 1931.
    Jones & Jones, of Mineóla, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is assault with intent to murder ; the punishment, confinement in the penitentiary for two years.

The record is before us without a statement of facts or hills of exception. No question is presented for review.

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.

On Motion for Rehearing.

MORROW, P. J.

The offense is' assault with intent to murder.

The indictment is regular and properly presented.

A plea of guilty was entered. The matter was submitted to the jury in the charge of the court, of which there is no complaint or faults, so far as has been observed. No exception was addressed to it on the trial, and the complaint of it in the motion for new trial cannot be considered. See Vernon’s Ann. Tex. C. O. P., vol. 2, arts. 658, 659, and 660.

The verdict, as returned, found the appellant guilty as charged in the indictment; and assessed his punishment at confinement in the penitentiary for a period of two years. The judgment sets out the verdict, and is entirely regular.

The sentence, in place of the words “guilty of assault with intent to murder,” uses the words “adjudged guilty of attempt to murder.” Article 847, C. C. P. 1925, says that the Court of Criminal Appeals “may reform and correct the judgment, as the law ánd nature of the ease may require.” This declaration of the Legislature has been uniformly construed to confer upon this court the authority and impose upon it the duty of amending the sentence, as well as the judgment, to coincide with the verdict. Many of these cases will be found collated in Vernon’s Ann. Tex. C. C. P. 1925, vol. 8, p. 252. See McCorquodale v. State, 54 Tex. Cr. R. 344, 98 S. W. 879; Robinson v. State, 58 Tex. Cr. R. 550, 126 S. W. 276; Smith v. State, 90 Tex. Cr. R. 273, 234 S. W. 893; Wright v. State, 101 Tex. Cr. R. 503, 276 S. W. 259. Among the later cases, see Cobb v. State, 101 Tex. Cr. R. 182, 274 S. W. 153; Pitts v. State, 100 Tex. Cr. R. 657, 274 S. W. 574; Smiddy v. State, 101 Tex. Cr. R. 138, 274 S. W. 602; Edge v. State, 101 Tex. Cr. R. 324, 275 S. W. 1010. Many others are cited in the supplement to the statute above mentioned, page 36.

The sentence will be reformed so as to accord with the verdict and judgment, and the accused, J. J. Boyd, who has been adjudged guilty of an' assault with intent to murder, and whose punishment has been assessed by the verdict of the jury at confinement in the penitentiary for a period of two years, will be delivered by the sheriff of Rains county to the superintendent of the penitentiary of the state of Texas or persons legally authorized to receive convicts, and the. said J. J. Boyd shall be confined in said penitentiary for two years in accord with the provisions of the law of this state.

The motion for rehearing will be granted to' the extent indicated by the reformation of the judgment. Otherwise it will be overruled.


author: CHRISTIAN, J. HATTIMORE, .T.

text:
    PIERCE et al. v. STATE.
    No. 13815.
    Court of Criminal Appeals of Texas.
    March 11, 1931.
    Rehearing Denied May 13, 1931.

      Heidingsfelder & Kahn, of Houston, for appellant.
    O’Brien Stevens, Or. Dist. Atty., Frank Williford, Jr., Asst. Dist. Atty., and E. T. Branch,, all of Houston, and Bloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, J.

The offense is accepting a bribe; the punishment, confinement in the penitentiary for two years.

It was charged in the indictment that appellants were deputy constables, and by appropriate allegations it was charged that they accepted a bribe from E. Sallie. A conspiracy was not alleged. Appellants moved to quash the indictment on the ground that they were improperly joined in a single indictment in the absence of allegations charging a conspiracy. They take the position that there could £>e no joint liability for failure to discharge a statutory duty, and that their acceptance of the bribe could not be a joint act inasmuch as each was responsible for ‘his own official dereliction. We deem the contention untenable. A private person is also individually responsible for his acts, but he may be charged as a principal offender with another or others in the commission of an offense. It is not necessary to allege the acts which constitute the accused a principal. An indictment charging two or more with the commission of an offense need not contain an allegation that they acted together. Branch’s Annotated Penal Code, § 676; Watson v. State, 28 Tex. App. 34, 12 S. W. 404; Loggins v. State, 32 Tex. Cr. R. 358, 24 S. W. 408.

Appellants’ motion to quash the indictment was also based on the ground of duplicity, their contention being, first, that each appellant was guilty of a separate offense in that each was individually responsible for his own act in accepting a bribe, and, in the second place, that the indictment, in charging that the bribe was paid to appellants in specified sums on several different occasions, sets forth separate and distinct offenses in a single count. It is alleged in the indictment that the sum agreed upon between the parties was $500 in money, and that on the 11th day of December, 1929, $50 was paid by Sallie to appellants as part payment of said sum, and that oh the 12th day of December of the same year the further sum of $200 was delivered to appellants, as part payment of said sum of $500.' The remaining payments were appropriately set forth. “Duplicity” is defined by Mr. Branch, in his Annotated Penal Code, § 506, as follows: “Duplicity is the joinder in the same count of two or more separate offenses, or the joinder in the same count of two or more phases of the same offense where the punishment is different.” See Hickman v. State, 22 Tex. App. 441, 2 S. W. 640; Hammons v. State, 29 Tex. App. 445, 16 S. W. 99. We understand from a reading of the indictment that one offense is charged, that is, the acceptance of a bribe by appellants in the sum of $500 for which E. Sallie was released from custody and no charges filed against him after he had been arrested by appellants for the offense of possessing a still and equipment for manufacturing intoxicating liquor. It might be that the indictment charges several ways by which the offense was committed. Again we quote from Branch’s Annotated Penal Code, § 508, as follows: “Where several ways by which an offense may be committed are set forth in the same statute, and they are embraced in the same general definition and are punishable in the same manner and to the same extent, and are not repugnant to each other, they are not distinct offenses but different phases of the same offense, and may be charged con-junctively in the same count.” Some of the cases cited in support of the text are Nicholas v. State, 23 Tex. App. 317, 5 S. W. 239; Comer v. State, 26 Tex. App. 509, 10 S. W. 106; Prendergast v. State, 41 Tex. Cr. R, 358, 57 S. W. 850; Holman v. State (Tex. Cr. App.) 90 S. W. 174; Johnson v. State, 75 Tex. Cr. R. 177, 171 S. W. 211, 212. We deem the rule above quoted applicable to the present indictment.

Appellants contend that the accomplice, E. Sallie, was not sufficiently corroborated. Appellants secured a search warrant and went .to Sallie’s place for the purpose of searching for a still and intoxicating liquor. Having discovered a still near Sallie’s premises, they placed him under arrest, destroyed some of the equipment for manufacturing whisky, and started to take Sallie and the still to the office of the magistrate for the purpose of filing a complaint against appellant. These facts were uncontroverted. Appellants admitted that they found the still, placed it in the car, and took Sallie into custody. Accomplice witness Sallie testified that he had been manufacturing and selling intoxicating liquor and that upon the occasion of the search he was arrested by appellants. His testimony was further, in substance, as follows: After being arrested, he went with appellant Pierce to Johnny Hilderbrandt’s home for the purpose of getting Hilderbrandt to accompany him to town and execute bond for him. Appellant Pierce remained in the car while Sallie went to the house and talked to Johnny Hilderbrandt and Charlie Hilder-Ibrapdt. The officer told the Hilderbrandts where to go to get the bond. Appellants and Sallie proceeded toward town in Sallie’s car. ■ Sallie’s father and the constable followed them. The Hilderbrandts drove ahead of the officers. On the way to town appellants advised Sallie that they believed they could save him trouble. It was finally agreed between Sallie and appellants that he would pay them $500 to release him and not file charges against him. The parties proceeded toward the magistrate’s office, and, pursuant to the understanding with appellants, Sallie advised the Hilderbrandts that he would not need bond. Sallie and appellants rode back to the country and threw, the still in a ditch. Sallie went to his home and secured' $50, Which he paid appellants. He was released and no charges filed against him. The next day, pursuant to his agreement with appellants, he paid them $200. Thereafter, the remaining sums of money were paid by Sallie to appellants.

Considering the corroborative evidence, we note the following: Appellants made a false return on the search warrant, in that they made no mention of having found the still. The return showed that they discovered ‘thirty barrels of mash on premises adjoining Sallie’s place and that such mash had been destroyed by them. Although ordered in the search warrant to arrest Sallie, the return failed to show that such arrest had been made. Sallie was not taken before a magistrate, and no charges were filed against him.. Appellants stopped outside of the city with the still. They had directed the bondsmen of Sallie to go to town, but finally had them stopped without making any explanation to them. They drove miles out of the way in their return to Sallie’® house, and threw the still into a ditch. A witness by the name of Brill testified to this fact.. Witnesses Riley Williams and Waters saw appellants make various trips to isolated parts of the city. It was at these places that the accomplice testified he paid the bribe money. The witness Waters testified to having seen Sallie with a big roll of bills on the occasion he met appellants at the Majestic Theater. Sallie had testified that he met appellants at such place for the purpose of complying with his agreement to pay them an installment on the bribe they had agreed to receive. Appellants admitted that they took' Sallie into custody and admitted that they released him and threw the still in a ditch. The jury were authorized to take the admission of these facts into consideration in determining whether the accomplice was corroborated. The Hilder-brandts testified to having gone ahead of appellants and Sallie for the purpose of making bond for Sallie. They further testified that they had been advised by Sallie 'before entering the magistrate’s office that bond would not be required. We have not undertaken to set out all of the corroborative circumstances. The opinion is expressed that the corroboration is sufficient.

While admitting the finding of the still and mash, and that they arrested Sallie, appellants declared they had released him upon his promise to aid them in apprehending the offender. They said that appellant had convinced them that he was not guilty and had named the person who was engaged in using the still for manufacturing intoxicating liquor. They denied that they had accepted any bribe to release Sallie.

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.

On Motion for Rehearing.

HATTIMORE, .T.

In their motion for rehearing appellants again insist that the indictment is bad for duplicity, in that it charges certain officers jointly with the acceptance of a bribe, it being contended that upon each appellant there rested an individual duty and responsibility as such law officer to execute and follow the law, which appellants think could (not blend into one criminal purpose except there be an -allegation of a conspiracy. No authorities are cited in support of this view, and we know of none. The pith of the law of principals is an acting together with a common intent in the commission of an offense. To charge ordinary parties as principals, it is not necessary to allege that prior to the commission of the offense, such parties conspired to commit same. We confess we are not able to follow appellants’ reasoning in their contention that because alleged offenders are officers, that it is insufficient to charge them in ordinary terms as principals.

The insufficience of the corroboration of the accomplice Sallie is again strongly challenged. Much of the corroborating testimony is set out in our original opinion. Without further analysis or enumeration of the facts, we are Of opinion same tend to connect appellants with the offense charged. The testimony of the accomplice fully made out a case of guilt.

Being of opinion the matter was properly disposed of originally, the motion for rehearing -will be overruled.


author: LATTIMORE, J. MORROW, R. J.

text:
    SCOGGIN v. STATE.
    No. 13893.
    Court of Criminal Appeals of Texas.
    Feb. 4, 1931.
    Rehearing Denied May 13, 1931.
    McGaugh & Darroch, of Brownwood, and Baker & Baker, of Coleman, for appellant.
    Dloyd W. Davidson, State’s Atty., of Austin, for the State.
   LATTIMORE, J.

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

The sheriff of McCulloch county testified that appellant and two companions drove through the town of Brady at a high rate of speed; that he pursued the parties and overtook them about five miles out of town on the highway; that he had to run sixty or sixty-five miles an hour to overtake the parties; that the car appeared to be heavily loaded; that after appellant had stopped the car he walked up to the car and smelled whisky; that he advised appellant that he had come through town at an unlawful rate of speed; that after smelling whisky he told appellant that he was under arrest for speeding. Appellant’s companions wore directed to get out of the car and were placed in charge of the .officer accompanying the sheriff. The sheriff rode in the car with appellant, where he found a fruit jar with whisky in it. Before entering the car the sheriff had walked around to back of the car and observed that the turtleback would not let down. There was something under the turtleback covered with bedding, which looked like kegs. After taking appellant back to town the sheriff searched the car and found about 55 gallons of whisky.

The testimony of the officer touching the result of the search was objected to on th.e ground that he had no warrant of arrest and had no search warrant authorizing the search; that no probable cause existed for making the search; and that the officer had no right to arrest appellant for exceeding the speed limit, in view of the fact that he was not in the uniform prescribed by law. There being no question of the fact that appellant was exceeding the speed limit, the officer’s right and duty was to arrest him, and if, at the time of or soon after such arrest, the officer discovered evidence of the presence of whisky, his right of search would follow under the facts of this case.

' [2] There is complaint also that the sheriff, at the time he arrested appellant, did not then have on a cap and badge which is made, by the terms of chapter 47, Acts Second Called Session of 41st Legislature, 1929 (Vernon’s Ann. P. C. art. 803a), a part of the uniform commanded by said act to be worn by all officers when they arrest, with or without warrant, any person for violation of the laws of this state relating to the speed of automobiles. By the terms of said act, authority to arrest for such violation of the law is expressly denied any officer unless he wear a diamond-shaped badge and a cap," Coat, and trousers of blue or dark gray.

By the terms of section 8, c. 42, Acts of the Second Called Session of 41st Legislature, 1929 (Vernon’s Ann. P. C. art. 827a, § 8) the maximum rate of speed for automobiles on public highways in Texas is now 45 miles per hour. Article 803, P. C. 1925, in general terms, authorizes any officer to arrest without warrant any-person found violating the provisions of the preceding articles of this chapter, which is chapter 1, title 13, of our Penal Code, which chapter includes speeding in ears. By other provisions of our law, officers are commanded to arrest without warrant persons committing offenses in certain cases. It is the plain statutory duty of every peace officer of this state to promptly and faithfully execute all process, including warrants of arre'sET which are placed in their hands, and punishments are provided by law for such officers as willfully or negligently fail in such duties. '

Whether intended or not, there are no distinctions made by the terms of chapter 47, supra, between officers in the cities and in the country, between sheriffs, constables,- state rangers, or city officers, whether with or without warrant, whether the offense be committed in the view of the officer, or the warrant be brought to him for execution after the offense has been committed, whether the matter be one of emergency, or one in which there is ample time to secure and don the distinguishing apparel demanded by said statute. Sheriffs and state rangers, as well as rural constables out in the wide open spaces from Texline to Brownsville, 'may, under our law, arrest in whatsoever garb they please or may happen to have on when the occasion arises - — offenders for murder, robbery, theft, etc.; but under the terms of chapter 47, supra, they may not in any way engage in the arrest of one whose offense is the dangerous one of driving a car at a rate of speed in excess of forty-five miles per hour on our public highways, unless such officers not only have a uniform consisting of a diamond badge, a cap and a coat and trousers of blue or dark grey, but also have it on at the very time they make such arrest. If the sheriff at Alpine sees some speed fiend coming seventy-five miles an hour down the street toward their beautiful new high school, though on the campus and surrounding streets contiguous thereto there be hundreds of children, if such officer happens to be wearing his customary comfortáble sombrero, he cannot interpose the law’s protective and arresting arm, but must rush home or to his office and get his badge and cap and don his coat and trousers of blue or dark gray, no matter how many children may be killed or how plain and patent his duty be in the premises. Even so of the sheriffs at Amarillo and El Paso and other places, and this too without exception for emergency or any other regard.

To give effect to this law in these days when every man with a wheelbarrow income must needs have his automobile and strain every nerve to keep up with the procession, and make every effort to see who can get there the quickest, the officer who wants to do his duty can never be without his faithful badge, cap, and coat and pants of blue or dark gray. The logic of the giving effect to a statute like this would be that, if the Legislature saw fit and was willing to go to that extent, they might say that officers seeking to arrest for murder must wear a garb of a certain col- or, cut, and texture, another when the offense is rape, still another when the offense is hijacking, etc., and that the courts will uphold such legislation. The mere statement of such a proposition demonstrates its folly. If the Legislature can constitutionally regulate the garb of one set of public- officers in the discharge of any part of their duty, they can pass laws directing what garb shall be worn by all officers-when acting as such.

Section 1 of article 2 of our Constitution, announcing the separation of the powers of our government into three distinct departments, forbids unwarranted interference of one department with another in the following language: “And no person or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

The wearing of one kind or color or cut of clothes can by no stretch of the imagination be held, ipso facto, to legitimately affect the legality or fairness of an arrest of one charged with crime, and in our opinion such statute as that above discussed is an unwarranted interference by one branch of our government with another. State v. Moore, 57 Tex. 314; Houston Tap Ry. Co. v. Randolph, 24 Tex. 317.

There is no provision of our statute which furnishes to or provides for the officer the equipment and paraphernalia made necessary as a prerequisite to the discharge of his duties by an officer acting under this statute. In the march of the seasons the officer must be provided with a winter cap, coat, and pants of blue or dark gray, as well as a summer outfit of like hue and description, inasmuch as the wearing of same in the discharge of his official duties is made compulsory. What right has the Legislature, in view of our Bill of Rights, section 19, art. 1, of our Constitution, which forbids that any citizen of this state — which includes its downtrodden peace officers — shall be deprived of property, privileges, and immunities except by due course of the law of the land, to compel by statute a •constable, whose income from his office is at best all too scant, to invest his money in two changes of raiment, i. e., a summer and a winter cap, coat, and trousers of blue or dark gray, before he can adequately enforce the laws or protect the people of his community from the .all pervading speed fiends who throng our highways? The Legislature passed a law forbidding under pains and penalties that any man should build three miles of straight fence without a gate therein. They provided no compensation for the making of the gate. The law was stricken down. Dilworth v. State, 36 Tex. Cr. R. 189, 36 S. W. 274. In holding unconstitutional a law requiring the erection, at all stations on the lines of the railway companies in this state, of water closets, our Supreme Court held such law so oppressive, arbitrary, and practically impossible of compliance therewith as to be a violation of the Fourteenth Amendment to the'federal Constitution. See Missouri, K. & T. Ry. Co. v. State, 100 Tex. 420, 100 S. W. 766. So say we of the provisions of the statute under,consideration. It practically says to every peace officer in this state, whose duty under mandatory provisions of our general laws it is to enforce the law and in emergency cases make arrests at any hour or place when the occasion, arises, that such officer may not perform such plain duty, unless forsooth lie he then properly clad, that is, have on a diamond-pointed badge, a cap and a coat of blue or dark gray, and trousers of like hue.

Illustrations might b.e multiplied ad in-finitum setting forth the impossibility of the enforcement of such law, compatible With the provisions of numerous other statutes of this state.

We cannot bring ourselves to believe that the Legislature intended to thus hamper, hinder, and cripple the officers of this state, or that they purposed to penalize for willful failure and neglect every sheriff, deputy, ranger, etc., who fails to provide himself with such accouterment, and by reason of such failure is unready, when occasion calls upon him, to protect humanity from the dangers of speeding cars, to arrest those thus violating the law, and who thus would subject himself to punishment for such willful failure and neglect.

For the reasons above stated we cannot agree with appellant’s contention, and hold that the provisions of said chapter 47, supra, are violative of constitutional inhibitions.

The judgment will be affirmed.

On Motion for Rehearing.

MORROW, R. J.

The soundness of the conclusion announced in the original opinion that the provisions of ehapter 47, Acts of the 41st Legislature, 2nd Called Session, was inoperative, is challenged by the appellant in his motion for rehearing and by argument prepared upon behalf of the state.

Section 1, c. 47, Acts of 41st Leg. (1929), 2nd C. S. p. 83 (Vernon’s Ann. P. C. art. 803 a), amending chapter 218, Gen. & Sp. Laws, Reg. Sess., 40th Leg. (1927), reads as follows:

“No officer shall have authority to make any arrests for violation of the laws of this State relating to the speed of motor vehicles unless he is at the time of such arrest wearing a uniform and badge clearly distinguishing him from ordinary civilians or private citizens, and shall have no authority to make any such arrests by designedly remaining in hiding or lying in wait unobserved in order to trap those suspected of violating the speed laws in reference to motor vehicles. No such officer, and no sheriff, constable, marshal, policeman, traffic officer, or other officer shall be entitled to any fee for making an arrest or serving a warrant of arrest or claim, demand or receivé any witness fee or commitment fee for an alleged violation of any law of this State relative to such speeding. It shall be the duty of the district or county attorney, as the case may be, to dismiss any and all prosecutions wherein it is shown that the arrest was made by designedly reclaming in hiding or lying in wait unobserved in order to trap those suspected of violating such speed law, and this provision shall apply to such conduct by any highway officer, sheriff, deputy sheriff, constable, marshal, policeman, or any other officer of this State, or political subdivision thereof, provided any officer pursuing or lying in wait in any vehicle other than a motorcycle shall be held to be designedly remaining in hiding as defined in this Act.'
“The venue of any prosecution for speeding of motor vehicles under state laws shall be in the justice precinct only wherein the offense was committed or in the precinct of the defendant’s residence. The badge herein required to be worn by an officer making an arrest shall be diamond-shaped, and the uniform prescribed to be worn by such officer or officers shall consist of a cap, coat and trousers of dark grey color, provided that the uniform worn by^ city policemen within the corporate limits of an incorporated city or town may be either blue or dark grey in color.”

The. statutes touching the use of motor vehicles upon the highway are found in chapter 1, title 13, consisting of articles 783 to 827, inclusive. See P. C. 1925, pp. 173-184, also chapters 47 and 42, acts of 41st Leg. 2d C. S.

In section 18, chap. 42, Acts 41st Leg. (1929), 2d Called Sess., that part of chapter 1, title 13, Penal Code 1925, composed of articles 789, 793, 818, 823, and 824, are repealed. These expressly repealed articles related to the speed of a motor vehicle, the classification and overweight of certain commercial vehicles, etc. The articles repealed are covered by the acts of the Legislature in chapter 42, supra.

In article 803, title 13, it is said: “Any peace officer is authorized to arrest without warrant any person found committing a violation of any provision of the preceding articles of this chapter.”

Section 16 of chapter 42, supra (Vernon’s Ann. P. C. art. 827a, § 16), authorizes and requires the state highway department to employ a number of inspectors known as the state highway patrol, who are given certain dutieá not necessary here to mention, and, for the purpose of enforcing said law and other state laws relating to traffic on the highways, they are given the powers of peace officers.

In article 36, C. C. P., peace officers are enumerated as follows: “The following are ‘peace officers:’ the sheriff and his deputies, constable, the marshal or policemen of an incorporated town or city, the officers, non-commissioned officers and privates of the State ranger force, and any private person specially appointed to execute criminal process.”

The duties of such officers are prescribed in article 37, O. O. P., which reads as follows: “It is the duty of every peace officer to preserve the peace within his jurisdiction. To effect this purpose, he shall use all lawful means. He shall, in every case where he is authorized. by the provisions of this Code, interfere without warrant to prevent or suppress crime. He shall execute all lawful process issued to him by any magistrate or court. He shall give notice to some magistrate of all offenses committed within his jurisdiction, where he has good reason to believe there has been a violation of the penal law. He shall arrest offenders without warrant in every case where he is authorized by law, in order that they may be taken before the proper magistrate or court and be tried.”

Articles 323 and 324, P. C., denounce as a penal offense the refusal or neglect to perform the duties required in articles 36 and 37, supra.

In title 5, chap. 1, C. C. P. (articles 212-217) are the circumstances under which arrests without warrant by state and municipal officers may be made.

The articles of the statute mentioned above define and restrict the use of motor vehicles on the public highways of the state, prescribe the penalties for the violation of the regulations, create a special police force with the authority of peace officers in the matter of enforcing obedience to the highway regulations in co-operation with the regular, peace officers, upon all of whom are conferred the right and duty to arrest without warrant transgressions of the provisions of the State Highway Law. By the statute mentioned, as well as by the general law, it is made the duty of peace officers to arrest all violators of the laws of the state and to execute process of the courts and of the Legislature. There are penal laws upon the statute books to punish officers who refuse or neglect to perform the duties imposed upon them. See articles 36 and 37, C. C. P., and articles 323 and 324, P. C.

By section 1, c. 47, Acts of 41st Leg., supra, the right of all peace officers to arrest persons violating the laws relating to the speed of motor vehicles is forbidden, unless the officer is wearing a uniform as prescribed in the act mentioned.

In article 1, § 28, Const, of Texas, is found the following:' “No power of suspending laws in this state shall be exercised, except by the legislature.”

Nothing in chapter 47, supra, or elsewhere in the statutes, demands that peace officers shall wear uniforms in the discharge of their duties. Under the terms of chapter 47, if he does not wear the uniform, he cannot obey the general law and arrest the offender. The option is with the officer to enforce the law or suspend it as he pleases. He may at one hour obey the law and at the next hour discard the uniform and suspend the law demanding the arrest of' violators thereof. If the officer elects to ignore articles 36 and 37, supra, and chapter 1, title 5, supra, and refuses or neglects to make an arrest of violators of the speed law, he would not, by any specific legislative declaration, be exempt from suffering the penalty prescribed by article 324, P. C. If he may, at his pleasure, simply by neglecting to wear .a uniform, exculpate himself from the penalty mentioned, it is difficult to find sound ground for holding that in so doing he does not suspend the operation of the penal statutes.

A statute made penal the sale of railroad tickets by any person other than an agent of some railroad company. In the law was found the following language: “Provided, that the provisions of this act shall not apply to any person holding a ticket, upon which is not plainly printed that it is a penal offense for him or her to sell, barter, or transfer said ticket for a consideration.” Acts 1893, c. 73, § 5.

The fact that it was optional with the railroad company issuing the tickets to print or fail to print on its tickets the indorsement quoted above, and thereby at its option made the sale of the tickets penal or otherwise, was, held by this court to confer upon the company issuing the tickets the authority to suspend the law penalizing the sale of tickets. See Jannin v. State, 42 Tex. Cr. R. 631, 51 S. W. 1126, 62 S. W. 419, 53 L. R. A. 349, 96 Am. St. Rep. 821. In the case of Texas & P. Ry. Co. v. Mahaffey, 98 Tex. 392, 84 S. W. 646, the same law was held invalid by the Supreme Court of this state.

The law relating to fire escapes on buildings was held violative of article 1, § 28, of the Constitution, for the reason that it made no rule touching the character of such fire escapes, but left that optional with the state fire marshal. See Dockery v. State, 93 Tex. Cr. R. 220, 247 S. W. 508.

A like ruling was made in Ex parte Adlof, 86 Tex. Cr. R. 13, 215 S. W. 222, concerning an ordinance governing a public cemetery in which the privilege of dressing graves and planting flowers was not defined in the law, but was left subject to "the judgment of the superintendent of the cemetery.

Many examples of the application of article 1, § 28, of the Constitution are found in the reports in this state, both of the Supreme Court and this court. The restriction against the suspension of laws rendered void acts of the Legislature leaving the enforcement of a criminal law in given localities to the popular vote, as Lyle v. State, 80 Tex. Cr. R. 606, 193 S. W. 680; State v. Swisher, 17 Tex. 441; Brown Cracker & Candy Co. V. City of Dallas, 104 Tex. 290, 137 S. W. 342, Ann. Cas. 1914B, 504; Arroyo v. State Ann. Cas. 1914B, 504; Arroyo v. State (Tex. Cr. App.) 69 S. W. 503.

The subject before this court is not the authority, by proper regulation, to require peace officers to wear on their person some insignia of office. The vice in the law is referable to the fact that the terms in which the Legislature has expressed its will offend against the mandate of the Constitution which declares that no law can he suspended save by the Legislature. As understood by the writer, the law, as set forth in chapter '47, supra, leaves the public without any protection against the evil resulting from and the danger attending the unlawful speeding of automobiles upon the highway. Under the law, if the writer understands it, the absolute duty is imposed upon no peace officer to arrest' offenders for violating the speed law. It is permissible that he. arrest them provided he wear the uniform described in the statute. There is nothing, however, in the statute which requires him to wear a 'uniform, and without a uniform he can make no such arrest. The right and duty of arrest, therefore, depends, not upon the mandate of the law, but upon the option of the officer. The enactment of chapter 47, supra, reflects a meritorious effort of the makers of the law to shield the individual from abuses arising from the privilege of arresting without warrant persons violating the speed law. Confidence is expressed in the ability of the lawmakers to find means of protecting the public from the evil mentioned. The present statute, however, is regarded as in conflict with the fundamental law, and for that reason and those advanced in the original opinion the motions for rehearing are overruled.


author: HICKMAN, C. J.

text:
    HOFFER OIL CORPORATION v. BRIAN et al.
    No. 847.
    Court of Civil Appeals of Texas. Eastland.
    April 17, 1931.
    Eehearing Denied May 15, 1931.
    H. A. Turner, of Fort Worth, for appellant. Grisham, Patterson & Grisham, of East-land, for appellees.
   HICKMAN, C. J.

The appeal is from an order overruling a plea of privilege. Appellant is a foreign corporation having a permit to do business in Texas, with its principal offices in Fort Worth, Tarrant county. The suit was instituted by appellees to recover of appellant an amount claimed to be due them under an alleged verbal contract with appellant for services rendered In making maps and doing certain geo-physical research work on lands in East-land county. The contract was made in Fort .Worth, and there was no agreement as to where appellees were to be paid for their services. By the nature of the services contracted to he rendered, performance on the part of appellees was necessarily to be in East-land county, since the lands which were to he mapped and upon which geo-physicál work was to be performed are situated in that county.

A controverting plea to appellant’s plea of privilege was filed in due time, and a hearing on the plea was set down for a day certain by the court. On the day of the hearing ap-pellees, by leave of the court, filed an amended controverting plea, and appellant filed a motion to strike out this amended plea on the ground that the original controverting plea was insufficient in law to allege facts showing the right to maintain venue in Eastland county, and the amendment came too late under the statute requiring a controverting plea to be filed within five days after appearance day. The action of the trial court in overruling this motion and permitting the filing of the amendment is made the basis of the first error complained of in the briefs.

The exact question here presented was considered by the Court of Civil Appeals at Dallas in the case of Miller v. Fram, 2 S.W. (2d) 1008. That opinion, in holding that controverting pleas are amendable, points out that it has been many times held that pleas of privilege are amendable, and it would be an anomalous situation if controverting pleas could not be amended with equal freedom. We believe that holding is correct. Controverting pleas should be subject to the same rules with reference to amendments as are other pleadings. No abuse of discretion in granting leave to amend is shown. The first contention is therefore overruled.

The exception relied upon by appellees to sustain venue in Eastland county is subdivision 27 of article 1995, R. S. 1925, which provides that: “Foreign corporations * * * may be sued in any county where the cause of action or a part thereof accrued.”

Subdivision 23 of the same article provides that: “Suits against a private corporation * * ⅞ may be brought in any county in which the cause of ¿ction, or a part thereof, arose.”

It is the contention of appellant that subdivision 23 applies exclusively to domestic corporations, while subdivision 27 applies to foreign corporations; that the word “accrued” has a different meaning from the 'word “arose,” and that, under the facts of this case, no part of appellees’ cause of action accrued in Eastland county. It has been held by our Supreme Court that no distinction is made, in so far as venue is concerned, between domestic and foreign corporations. Pittsburg Water Heater Co. of Tex. v. Sullivan, 115 Tex. 417, 282 S. W. 576; Lakeside Irr. Co. v. Markham Irr. Co., 116 Tex. 65, 285 S. W. 593.

But, regardless of this consideration, we think the facts found by the trial court in the instant case were sufficient to authorize the maintaining of the suit in East-land county under subdivision 27, even though subdivision 23 is not applicable. A cause 'of action comprises every fact which it is necessary for plaintiff'to prove in order to obtain judgment. It does not comprise every evi-dentiary fact, but does comprise every essential fact. Union Trust Estate v. Orr (Tex. Civ. App.) 3 S.W.(2d) 472; San Jacinto Life Ins. Co. v. Boyd (Tex. Civ. App.) 214 S. W. 482; Danciger v. Smith (Tex. Civ. App.) 229 S. W. 909; Id. (Tex. Civ. App.) 286 S. W. 633; Chesapeake & O. Ry. Co. v. Dixon, 179 U. S. 131, 21 S. Ct. 67, 45 L. Ed. 121.

In the case of Phillio v. Blythe, 12 Tex. 124, our Supreme Court construed a statute with reference to venue in justice courts in which the word “accrued” was employed. We quote from that opinion as follows: “But, admitting that such contract existed, and that.it was susceptible of proof, yet the contract itself gave him no cause of action. Its peiv formance on his part; as well as breach by non-payment on the part of the defendant,, were essential constituents of his cause of action; and both of these were necessary to his suit. Now, the performance and breach were both in precinct No. 2; and the cause of action can be said, with much more propriety, to have occurred in that beat, than in beat No. 1. In the former, two ingredients, in the latter, but one ingredient of the cause existed. In mixed transactions of this kind, where the cause partly accrues in one place and partly in another, there is more reason .why the suit should be brought- at the place of performance, than at any other locality. There the witnesses to prove the value of the work or its defects will most probably live; and it would be unreasonable, that they should be dragged from their homes to remote precincts, to testify, when such inconvenience can be avoided. Besides, the performance, in a just sense, may be said to be the most essential constituent of the cause of action.”

The very language of our statute contemplates that a cause of action may accrue partly in one county and partly in another. We would not say that a cause of action on a contract does not partly accrue in the county where same is made, because the making of the contract is one of the essential facts necessary to be proved in order successfully to maintain a suit thereon. For the same reason, we cannot hold that a part, of a cause of action does not accrue in the county of its performance.

The plea of privilege was properly overruled, and the judgment of the trial court will be affirmed.