author: BUCK, J.

text:
    ANDERSON et al. v. PARSLEY et al.
    No. 12551.
    Court of Civil Appeals of Texas. Fort Worth.
    Feb. 14, 1931.
    Rehearing Denied March 14, 1931.

      Weeks, Morrow, Francis & Hankerson, of Wichita Falls, for appellants.
    ICilgore & Rogers, of Wichita Falls, Chauncey Penix, of Graham, W. P. Dumas, of Dallas, and Bryan, Stone, Wade & Agerton, of Fort Worth, for appellees. .
   BUCK, J.

This case originated in the district court of Young county, and was a suit brought by O. T. Anderson and W. G. Bullock, alleged to be taxpayers and citizens of Young county, against W. F. Parsley, county judge, C. W. Akers, A. C. Anderson, Tom Rice, Sam Bird, and G. Earl Hutchings, members of the commissioners’ court, James T Taylor, the successful bidding contractor for a courthouse to be ‘erected at Graham,' Young county, E. G. Withers, and J. C. Thompson, the architects employed.

From the statement of facts, it appears that in September, 1930, there was discussed before the commissioners’ court of Young county the matter of building a new courthouse, but, by a vote of the commissioners’ court, the question was decided adversely to said building; later, one of the commissioners having changed his mind about the matter, on the 10th day of November there was entered an order to build a new courthouse Notices were sent to certain architects that the court would consider the matter of employing architects who, after employment, would prepare plans and specifications. Anton Korn, of Dallas, and Voelcker & Dixon, of Wichita Falls, appeared without any complete plans drawn. Withers & Thompson appeared with' complete plans and specifications. After the commissioners had heard each of the visiting architects, they passed an order selecting Withers & Thompson as architects to draw plans and specifications and supervise the building of the courthouse at an agreed compensation of three per cent, for the drawing of plan's and specifications, and a further compensation of 2 per cent, for superintending the building. Notice was published on November .12, 1930, and for three weeks thereafter, that bids would be accepted on said mentioned date- for the building of the courthouse in keeping with plans and specifications prepared by Withers & Thompson, a copy of the plans to be found in the possession of the architects and in the office of the county auditor.

E. G. Withers testified that for two years he had been talking to the commissioners’ court with reference to furnishing plans and specifications for a new courthouse; that on November 10, 1930, he went to Graham and submitted plans; that he did not know anything about a previous decision not to build a courthouse after the meeting in September, 1930; that he had a tentative agreement with Mr. Belcher, the county auditor, to remodel the courthouse; that on November 10th he came to Graham, and that Mr. Voel-cker and Mr. Korn' were present; thqt, after discussing the plans at length with the commissioners’ court, he was informed that his firm had been selected as the architects, and an order was written to that effect; that later there were some minor changes made in the building plans, and that these changes were indicated upon the blueprints by red lines; that he returned to Graham on November 14th, the following Friday, and that the commissioners’ . court went over the new plans, found them to be correct and in accord with their desires and wishes; that at this time W. E. Parsley was county judge, and H. L. Leberman, A. O. Anderson, C. W. Akers, and M. H. Sims were commissioners; that they wore present at the time the plans were adopted and the order made for the employment of Withers & Thompson as architects; that H. L. Leberman voted “nay” on the question as to whether or not a courthouse should be constructed; the other commissioners voting in the affirmative.

A temporary restraining order was prayed for in the suit filed to restrain the-commissioners’ court and their successors from undertaking to perform either of said contracts, that is, the contract with Withers & Thompson as architects, and the building contract with Jamos T. Taylor, and keep them from issuing and delivering the specifications of Withers & Thompson, or from undertaking to enforce the tax levies purporting to be made in said orders on December Sth and 20th. On January 5, 1931, the application for injunction was heard by the district judge in chambers, and the temporary injunction was denied, from which order and judgment the plaintiffs have appealed to this court.

Opinion.

The contentions of appellants are stated in their brief, and are substantially as follows:

“(⅝) The evidence overwhelmingly establishes (or to say the least of it, raises a strong issue of fact) that Taylor Bros. Company of Wichita Ealls, were denied the right to bid by being refused plans and specifications and by being dissuaded by the architects, and that such actual stifling of competition renders any contract void.
“(b) That the communications' sent out by the architects as to what the county was expecting to pay and undertaking to frighten bidders, was sufficient to justify a jury in finding that there had been an actual stifling of bids so as to render the contract void if it does not conclusively establish it.
“(e) That the law requiring'the contract to be let to competitive bids, necessarily requires that the plans which are to form the basis of competition, must be adopted when the proposition is submitted — the law requiring it to be submitted for a given length of time. — and there is an issue of fact here as to whether the pla'ns were so adopted or were at any time completed prior to November 2®, 1980.”

The contentions as to the invalidity of the contract as a matter of law may be summarized as follows:'

(a)The statute, article 230-8, requiring that contracts of this nature bo submitted to competitive bids, and that the bidder be required to furnish a surety bond for the full contract price, and that, after the bids are received, the county shall then consider the matter of letting the same, and shall let the same to the lowest responsible bidder, contemplates that the bids shall be open to all the public; and the specifications here having limited those who might bid on a very substantial part of the work to manufacturers who had been in business for five years so'limit competition as to render the whole proceeding-void under the express provisions of article 23S8 that such contracts shall be void and enjoined at the instance of any taxpayer.

(b) No restriction could be placed upon bids which tend to increase the price to the county,- and, the specifications having placed a restriction in that it required the contractors to furnish a list of subcontractors two days prior to bidding, and the undisputed evidence showing that this will cost the county money, same is an unreasonable requirement rendering the contract void; and same is not avoided by showing that the particular bidders were favored by not being required to furnish this information, for changes favorable in their nature may not be made immediately upon the time of bidding.

(c) Certain unreasonable requirements were contained in the specifications with respect to insurance which of necessity increased the contract price at the expense of the county and rendered the contract void.

(d) As to certain items of the work, no competition is asked for, but lump sums were to be paid.

(e) The proposition made was that the county would issue warrants bearing 6 per cent, interest, but the maturity date of the warrants was not shown, and such maturity date is a material factor for prior determination in order that the bids may be competitive— that is, upon the same terms.

(f) That the actual contract entered into is void, because it provides for warrants to bear interest at the rate of 6 per cent, per annum, payable semiannually, whereas the proposition was they should boar 6 per cent, interest per annum, and the contract may not be upon more favorable terms than those provided for, for all bidders are entitled to the right to scale their bids in view of more favorable terms.

(g) That there has been no sufficient tax levy to support the issuance of the warrants, in this:

(1) The order of December 8th is not sufficient as a tax levy because the court did not then have before it all those facts necessary for them to have as a basis for the exercise of their discretion in fixing the tax rate.

(2) The purported levy is not of any given amount, and does not dispose of those discre tionary matters, which renders the whole a matter of mathematical or clerical calculation.

(3) The Constitution provides that, when a contract is made, provision must be made at the time for tax levy, and contemplates of necessity that, when the levy is made, the court making the levy must have knowledge of all those facts essential to the exercise of their discretion in fixing the rate, the length of time the tax levy shall be made, etc., none of which the court had on December 8th.

(4) The order of December 8th still leaves for determination certain discretionary matters to render same effective as a tax levy, and these discretionary matters must be determined at a regular term with all members present.

(h) The order of December 20th is wholly insufficient, in that:

(1) It does not purport to be a tax levy.

(2) It cannot be treated as a tax levy because not made at a regular term.and with all commissioners present.

(3) It, together with the order of December 8th, cannot be treated as a tax levy because, if the order of December 20th is necessary to render effective the order of December 8th, same was not made at a regular term with all members present.

(i) The statute requiring the giving of a bond is mandatory, and the bond is insufficient ⅛ this instance:

(1) Because the statute providing for a bond impliedly requires one to be consistent with the general laws of Texas, permitting a suit upon a bond may be filed within the general limitations statutes of Texas, whereas the 'bond here limits suits to one year.

(2) The limitations of the right to sue on a bond. within one year conflicts with the contract obligations which are performable after one year in some particulars.

(j) Tom Rice and Sam Bird were elected commissioners of Precinct Nos. 3 and 4, respectively. They sought to qualify December 1st. They actually presented bonds and took the oath. They were not recognized. Appellants contend 'they were entitled to qualify, and that M. H. Sims and H. L. Leber-man were no longer commissioners and acts of the court in consequence invalid. Appellants’ contentions on this ground are:

(1) Article 17, R. S. 1925, does not undertake to fix terms:

(2) If so, is unconstitutional.

(k) Because, when made, no tax levy was made to support ¾ and it was contemplated as a charge on future years.

The evidence as to whether or not Taylor Bros. Company of Wichita Palls was denied the right to bid by being refused plans and specifications and by being dissuaded by the architects does not bear out the contention of appellants. E. G. Withers testified that R. L. Taylor came to his office some time about December 5th; that he and Mr. Thompson talked to him, and that he told Mr. Thompson that he knew the Taylor Bros., and thought that they were absolutely responsible, and would be glad to have them figure on the work; that he explained to Mr. Taylor that some architects of Wichita Palls had threatened the commissioners’ court with trouble about the matter, and a Wichita Falls firm of lawyers had been employed by the opposition to the movement in Wichita Falls to cause the commissioners’ court of Young county as much trouble and embarrassment as possible, and, if they were going to use the plans for that purpose, and not; use them to put in a bona fide bid on the work, they would rather they would not get the plans, but, if they wanted them for the purpose of figuring on the work, that they (Withers & Thompson) would supply them with the plans; that Mr. Taylor said he would go back to Wichita Falls and talk with the Taylor Bros, and see if they had time to figure on the contract; that he believed the time was too short for them to figure on the job then; that he would talk to the other members of his firm, including his father, and would let Withers & Thompson know his decision in the matter.

Mr. Withers further testified that, at the time Mr. Taylor talked to him in his office, they had 20 sets of plans and specifications, possibly 21 or 22, and-they had a complete set in their office from which they could make more; that this plan was available for the. inspection of Mr. Taylor at any time; that he could furnish him with the plans-within two hours, and within two days furnish him the specifications; that later Mr. Taylor wrote him that Taylor Bros. Company would not make a bid; that, had Taylor Bros, gotten the plans and specifications at the time they were offered to Mr. Taylor, they could have prepared and submitted a bid by December 12th, the day the bids were to be submitted.

The evidence further shows that Graham is only 70 miles from Wichita Falls, and, if an application had been made to the commissioners’ court; for a copy of the plans and specifications, together with a contract, that such plans and specifications would have been furnished the .prospective bidder. It is some 125 miles from Wichita Fhlls to Fort; Worth.

In Williams v. Castleman, 112 Tex. Í93, 247 S. W. 263, 268, on certified questions from this court, the Supreme Court of Texas, speaking through Chief Justice Cureton, said:

“Under this provision and the statutes generally regulating commissioners’ courts, these courts, when acting within the sphere of their powers, must be regarded as courts of general jurisdiction. * * * No principle of law is better settled than that acts of discretion and findings of fact on the part of public officers to which such power is confided, including .commissioners’ courts; will not be reviewed on appeal,” citing cases.

All presumptions of law are in favor of tlie validity of the acts of the commissioners’ court. Hannon v. Henson, 15 S.W.(2d) 579, 584, by the Commission of Appeals, says:

“All presumptions must 'be indulged in favor of the authority of the court to act at the time it did act, under the facts presented and under the circumstances, shown”— citing cases.

Therefore, even though the commissioners’ court might be bound by any words or conduct of the architects, such words or conduct ought to be given a most reasonable construction, and we do not think that the contention that Taylor Bros. Company was prevented from submitting their bid is supported by the evidence, and, further, that the fact that the architects stated that there was some oposition in Young county to the building of the court house, that such statement did not unduly stifle competition. The evidence shows that there was some opposition, either on the part of these complainants or others, and two suits have been filed to enjoin the compliance with these contracts by the commissioners’ court.

In Mechem on Agency, vol. 1, § 992, it is said:

“An architect, engineer, or other superintendent employed to supervise the construction of a building, railroad, or other similar structure, is usually an agent with limited authority. His authority, of course, may be given a wider range, but, in the absence of such an enlargement, his authority and duty axe confined to seeing that the work is done in accordance with,, the plans and specifications ■ agreed upon. He has, therefore,' no implied authority to alter the terms of the contract, or to waive compliance with its provisions. He has no implied authority to order extra work or materials, extend the time of performance, make any change in the plans and specifications, or accept different or inferior materials and bind his principal to pay for them. Where the contract provides that payment shall be made upon his certificate of compliance, this goes no further than to authorize him to pass upon the manner of performance; it gives him no general authority to waive compliance with any of the substantial conditions of the contract, such for example, as that the payments shall not he due until the work has been done to the architect’s satisfaction.” •

We are further of the opinion that the complaint made in section (b), above quoted, is without merit. We think there is sufficient evidence to justify the court in holding that there was no stifling of bids, such as to render the contract void.

Article 2368, Rev. Civ. Statutes of 1925, is as follows:

“No commissioners court shall make a contract calling for or requiring the expenditure or payment of two thousand dollars or more out of any fund or funds of any county or subdivision of any county, without first submitting such proposed contract to competitive bids. Notice of the timq and place when and where such contract will be let shall be published in such county or subdivision once a week for four weeks prior to the time set for letting such contract, and a certified check for five per cent of the amount of the bid shall be required to be filed with each 'bid, and said contract shall be let to the lowest and best responsible! bidder upon said contract and said bidder shall be required to give a good and sufficient bond in the full -amount of the contract price executed by some surety company authorized to do business in this State. If there is no newspaper published in such county or subdivision, then notice of the letting of such contract shall be given by causing notice thereof to be posted at the courthouse door of such county for four weeks prior to the time of letting such contract. Provided, that in case of public calamity, where it becomes necessary fo act at once to appropriate money to relieve the necessities of citizens or to preserve the property of the county or subdivision, this provision may be waived. All contracts made by or with said court calling for or requiring the expenditure of any amount of money less than two thousand dollars and exceeding five hundred dollars shall be let by competitive bids at a regular term of court, except in case of urgent necessity or public calamity. The provisions of this article shall not apply to any work done under the direct supervision of the county commissioners and paid for by the day. A contract made by the commissioner's court without complying with the terms of this article shall be void, and shall not be enforceable in any court of this State, and the performance of same and the payment of any money thereunder may be enjoined by any citizen of the county or subdivision. This law shall be cumulative of this title.”

The evidence shows that on November 10, 1930, the commissioners’ court in regular session passed an order authorizing the building of a new courthouse; that there was only one vote against the proposition, that of I-I. L. Leberman; that on the same day a contract of employment was entered into between the commissioners’ court, with Withers & Thompson as architects, and appropriate orders entered to this end; that subsequently, on- December 8, 1980, the commissioners’ court levied a tax of 25 cents on the $100. valuation of taxable property to take care of the warrants to be issued, interest, and 10 per cent, attorneys’ fees in event of a default. There is no contention that the tax levied was beyond the power of the court. Under article 2352, the commissioners’ court has the power to levy a tax not to exceed 25 cents on the $100 “for the erection of public buildings, streets, sewers, water works and other permanent improvements.” At the time the tax was levied, no contract had been entered into with the contractor, and we think that this, act was in compliance with the requirement that at the time a debt is created a tax should be levied for the payment thereof.

Article 11 of the Constitution, sections 2, 6, and 7 thereof, provides for the construction of jails, courthouses and bridges, etc., and the levy of taxes to pay the interest thereof, and to levy “at least 2%.as a sinking fund.” It is well settled that public officers are presumed to have done their duty, as it is equally well settled that the Constitution and laws of the state form a part of any contract or tax levy made by the commissioners' court. The Texas decisions wore reviewed by the Supreme Court of the United States in Wade v. Travis County, 174 U. S. 499, 19 S. Ct. 715, 717, 43 L. Ed. 1060, wherein the ease of Mitchell County v. City National Bank, 91 Tex. 361, 43 S. W. 880, 888, was reviewed with approval and the decision of the Supreme Court of the United States declared to rest thereon. The court in part said:

“The power to do so [thaf is to levy a tax sufficient to take care of the interest and sinking fund] could be derived from the legislature only. We understand that the provision required by the constitution means such fixed and definite arrangements for the levying and collecting of such tax as will become a legal right in favor of the bondholders of the bonds issued thereon, or in favor of any person to whom such debt might be payable. It is not sufficient that the municipal authorities should by the law be authorized to levy and collect a tax sufficient to produce a sinking fund greater than two per cent., but to comply with the constitution the law must itself provide for a sinking fund not less than two per cent., or require of the municipal authorities to levy and collect a tax sufficient to produce the minimum prescribed by the constitution.”

The power of the county commissioners under the Constitution, art. 8, § 9, as amended December 19, 1890, to levy a tax of 25 cents on $100 valuation to construct buildings, sewers, and other permanent buildings, being limited to that levy for all such purposes,a levy can be made for a courthouse and jail only so far as the limit has not already been reached for the other purposes. Stratton v. Commissioners’ Court of Kinney County (Tex. Civ. App.) 137 S. W. 1170.

There is no evidence that any part of the taxes for permanent buildings or for other purposes mentioned in the statutes had been theretofore levied, and consequently the commissioners’ com*t had the power to make the levy of 25 cents on the $100 valuation. The complaint that Taylor Bros, was prevented from bidding by the suggestion made by Withers & Thompson in a letter to Mr. C-hewning, an estimator for Taylor Bros., that a bond in the sum of approximately $15,-000 should be filed with their bid, we do not think is sustained by the evidence. Mr. Chewning testified that on November 17th he talked to the architects with reference to obtaining plans and specifications, and was not refused; that he did nothing further until November 22d, when he wrote a letter requesting plans and specifications; - that he knew there was a set of plans and specifications on file at the courthouse in Graham that could be seen by any one; that he did not communicate with any member of the commissioners’ court and ask that the architect be required to furnish plans and specifications; that he would have bid on the job. as a contractor even though it required equipping the structure with complete furniture and its installation; that the furniture phase of the specifications would not have deterred him in bidding -on the work; that he would have gone ahead and bid, regardless of the provisions in the specifications with respect to furnishing the furniture for the courthouse ; that any contractor would have done so; that a price could have been obtained on furniture; that there are people in Texas who furnish such furniture as judges’ benches, tables, chairs, desks, etc.; there are some planing mills that will manufacture these articles for contractors. He further testified by affidavit that on November. 22d he requested by letter the plans and specifications; that he received the architect’s letter of November 26th, wherein he was advised that the building would be paid for in warrants; that a $50 deposit would be required for plans; and that the architects would furnish plans and specifications if Taylor Bros, desired to bid.

Appellant’s witness Taylor, of the finm of Taylor Bros. Company, testified that he went to Fort Worth December 5th to see about obtaining plans and specifications; that he had about an hour’s conversation in the office of Withers & Thompson; that the architects told him that there were some dissatisfied architects in Wichita Falls who were interested in defeating the construction of the new courthouse at Graham; that, if he wanted the plans for the purpose of bringing them back to Wichita Falls for the information of these architects and attorneys, he could not have the plans, but, if he was interested in submitting a bona fide bid on the job, he could have the plans; that Mr. Withers told him that his firm knew the father of the witness personally, and would be glad to have him bid on the job; that he could get plans within an hour and specifications within two or three days; that had he taken a set of plans, he couid have spent two or three, days taking off the quantities of the plans without having the specifications before him; that it would probably take longer than two or three days to go over thirty pages of the plans and take off the quantities; that he knew subcontractors had theretofore obtained plans and were figuring on the job; that sometimes general contractors wait until the day of the opening of bids before they submit their bid or receive all of the subcontractors’ bids, to obtain the benefit of last day bidding; that his firm had placed about four competitive bids in the last six months, and had been awarded one; that his firm had bid on several courthouse jobs, but had never built a courthouse; that Mr. Withers said he would be glad to have Taylor Bros, bid on the job if we wanted to, and that he would furnish them with a copy of the plans and specifications if they wanted to submit a bid; that at that time he decided Taylor Bros, would not submit a bid.

Miss Roberts, in the purchasing department of the city of Wichita Falls, testified that she did not make a special trip to Fort Worth for Mr. Ohewning for the purpose, of obtaining a copy of the plans and specifications of the new courthouse to be built at Graham, but, inasmuch as she was going to Fort Worth, he asked her to see about them; that he gave her a check, and she.went to Fort Worth; that she went to the office of Withers & Thompson to see about getting the plans, and had a talk with Mr. Thompson; that she asked him if he had the plans available for the Graham courthouse, and that he said they had made up their mind not to give them to any exchange of contractors’ association, and that she told him she appreciated his position in this particular ease in not wanting the exchanges to have them, but that she had brought a check from Mr. Ohewn-ing, and that Mr. Ohewning had communicated with him about a set of the plans; that he said he had written Mr. Ohewning a letter and explained the matter to him; that he said there ¡might be an injunction, and that two or three things might discourage Taylor Bros, in bidding on this work; that no question was raised about the check 'being good, and that she told Mr. Thompson that, inasmuch as the bid was to be let on the 12th, there would only be eleven days to figure on the plans, and Mr. Thompson told her he would write Mr. Ohewning the next day; that she thanked him for his courtesy and left; that she understood that Mr. R. B. Taylor later went to Fort Worth and talked with Withers & 'Thompson, as shown heretofore.

The .bid of James T. Taylor, accepted by the commissioners, was for $297,772, and the deposit of $15,000 was about 3 per cent, of the bid, and we think it was “approximately” correct.

The evidence further shows that there were seven bidders, ranging, from the bid of D. N. Beaverton, Bubbock, ’ Tex., for $324,-700, to the bid of James T. Taylor, .Fort Worth, for $297,772. We do not think there is any merit in the contention that Taylor Bros, of Wichita Falls was prevented from submitting a bid. Plaintiffs also complain of that paragraph of the plans under “cabinet work and furniture” as unreasonable and tending to stifle competition. The paragraph reads as follows:

“Persons or firms bidding on this work shall be actually engaged in the manufacture of this class of work, and shall have been for a period of not less than five years.”

There is also a provision which reads;

“The general contractor shall include in his main proposal or bid all work called for under this heading and shall furnish all material of every description necessary to make the job complete in every detail as contemplated in the drawings and specifications and the entire work shall be delivered and set up in the building ready for use.”

Since the general contractor was required to bid on all of the material of every description to make the job complete in every detail, we cannot say that Taylor Bros., or any other possible bidder, was induced not to bid because of this requirement. It is argued that the reason for that requirement was, that the wood for the benches for the judges and other immovable furniture should be made out of material which had been thoroughly dried and tested; and that the architects thought, Which thought was adopted by. the commissioners’ court, that five years’ experience in the making of furniture was necessary to insure Young county that it would have immovable furniture of a material that had been thoroughly tested. In the case of Haralson v. City of Dallas (Tex. Civ. App.) 14 S.W.(2d) 345, 347, it is said:

“Appellant makes the further contention that the requirement in the specifications for a chemical analysis of east iron from which pipes are to be manufactured, that is, to conform to a prescribed maximum and minimum content of sulphur, phosphorous, manganese and silicon, restricted competition, violated the competitive provision of the city charter, and was against public policy, for the reason that the United States Cast Iron Pipe & Foundry Company, the successful bidder, enjoyed such favorable freight rates that no other manufacturer could compete with it for the work. Appellant does not contend that the test was placed in the specifications for the purpose of restricting competition or for any fraudulent purpose, the contention being that, although the test was prescribed in good faith, its effect was to restrict competition. This argument is based upon the assumption (which is not borne out by the facts) that the successful bidder was the only manufacturer in the United States that could compete for a contract to furnish the pipe required.
“The trial court found, with ample evidence to sustain the finding that the chemical analysis test did not stifle competition, that the successful bidder was not the only manufacturer in the United States that was able and willing to perform the wort and furnish pipe in accordance with the specifications, and this is conclusively established by the fact that there were six bids for the entire job that contemplated the use of cast-iron pipe fulfilling the chemical analysis test. The object of the authorities in prescribing this test was to secure a high grade of cast iron, absolutely necessary, in view of the purpose and use to be served.”

The Constitution does not provide when the newly elected commissioners shall talte office or be eligible to take office. Article 17, Rev. Civ. Statutes of 1925, act of 1921, provides that the newly elected officers shall take their official oath and enter upon and assume the duties of their respective offices on the 1st day of January following the last general election, or as soon thereafter as possible. This provision is well within the power of the Legislature, and we can see no reason to sustain the contention that the newly elected commissioners, elected in the general election of.1930, ought to have been permitted to take the oath and qualify and enter upon their duties as commissioners pri- or to January 1, 1931. '

We have carefully gone over the record in this case and fail to find any reversible error. Therefore the judgment of the trial court is in all things affirmed.

On Appellants’ Motion for Rehearing.

Appellants have filed a rather lengthy motion for rehearing, and we will proceed to discuss certain grounds urged in said motion.

The Constitution (Const. art. 5, § 18) makes the commissioners’ court the governing body for the county business proper. Jernigan v. Finley, 90 Tex. 205, 38 S. W. 24, by the Supreme Court. The Legislature of Texas saw fit, relative to the delegation of power and authority to the commissioners’ courts, to use the following language:

“Each commissioners court shall * * * provide and keep in repair court houses, jails and all necessary public buildings * * * said court shall have all such other powers and jurisdiction, and shall perform all such other duties, as are now or may hereafter be prescribed by law.” Article 2351, Rev. Civ. Statutes of 1925.
In the case of Stone v. City of Wylie (Tex. Com. App.) 34 S.W.(2d) 842, 843, it is said:
“It is announced by Corpus Juris, vol. 43, § 317, p. 306, as a settled rule that courts -will not interfere with the exercise of discretionary power upon the part of the governing body of a city except in a clear case of abuse, and that where a discretion is validly vested in a municipal body, or officials, it will be assumed that tho duties are properly and lawfully performed.”

It is the duty of commissioners’ courts to “provide” courthouses and other necessary public buildings, and in connection with this power and authority, and as a component part thereof, the right is given to levy taxes for courthouse purposes. Article 2352 provides that “said court shall have the power to levy * * * not to exceed twenty-five cents on the one hundred dollar valuation in any one year” for public building purposes; article 7048 provides that “each commissioners court shall have power to levy * * * for the erection of public buildings * * * not to exceed twenty-five cents on the one hundred dollar valuation in any one year.”

The Legislature did not provide that the commissioners’ court should know the exact amount of the debt before it could levy the tax; the only limitation being the amount of the tax for that particular purpose. The 25-cent tax referred to in the statute is authorized by section 9 of article 8 of the Constitution, and is a “limitation upon the power of the legislature to authorize counties to impose taxes for such purposes.” Mitchell County v. Bank, 91 Tex. 361, 43 S. W. 880, 883, by the Supreme Court.

Power and authority of the commissioners’ court in respect to making tax levies for courthouse purposes was recognized in Cresswell Ranch & Cattle Co. v. Roberts County, 27 S. W. 737, by Judge Stephens of this court. The tax order of December 8, 1930, was and is a component part of all other orders that had been entered, and were to be entered, in respect to the creation of the indebtedness which is to be evidenced by these interest-bearing warrants. We know no good reason, and appellants have cited us to none, to show that the commissioners’ court of Young county did not have authority .to pass the tax order of December 8, 1930. The tax levy was made on December 8th; the order of December 20th merely appropriated that levy. Each and every order was- necessary in order to complete the public record of the proceedings, which show the authorization and creation of a valid debt for courthouse purposes in Young county. The fact that in the instant case the issuance of bonds is not involved does not and cannot affect the validity of the tax. By article 2368, Rev. Civ. Statutes, the commissioners’ court is required, to award contracts upon competitive bids, and which was done in respect to the contract involved in this suit, as shown by the testimony of appellees’ witnesses. The .commissioners’ court adopted the plans and specifications. After the plans and specifications were adopted, full four weeks’ notice of intention to award a contract, based upon those plans and specifications,- was given, as required by article 2368. As declared by Judge Brown, in Mitchell County v. Bank, supra, and ratified by the United States Supreme Court in Wade v. Travis County, 174 U. S. 506, 19 S. Ct. 715, 43 L. Ed. 1060, and also by the Texas Supreme Court in City of Aransas Pass v. Keeling, 112 Tex. 399, 247 S. W. 818, 821, the legislature “has the power to make all such ‘provision’ for counties and cities, or it may leave it to the officers of such corporations to make it when the debt is created ; if made by either it [the debt] is sufficient.”

Appellants say in their motion for rehearing: “We cannot conceive how your Honors can hold that the power to tax in the creation of a debt can come into existence until the amounts of the debt, its maturity, etc., have been determined.”

The exact amount of a debt, including interest thereon and time of maturity, is rarely known at the time the debt is authorized. There is always an element of uncertainty as to the maintenance of subsisting taxable values throughout the life of either a bond or warrant debt. If values are increased, then a reduction in the tax rate is permissible and authorized, so long as it does not impair the obligation of a contract. This principle was recognized by the Supreme Court in City of Aransas Pass v. Keeling, 112 Tex. 339, 348, 247 S. W. 818, in an able opinion by Justice Greenwood.

In the case of Bloodworth v. Rhea, 280 S. W. 1070, writ of error refused, opinion by Justice Dunklin, this court sustained the validity of certain school bonds, and one of the reasons advanced by appellants in that case was that the proposition for the issuance of the bonds did not distinctly specify the rate of interest, but merely stated that the bonds would bear interest not exceeding 6 per cent.

The order of December 8, 1930, by the commissioners’ court, levied a tax of 25 cents on the $100 valuation of all taxable property for the current year, but further provided that:

“During each year thereafter while any of said warrants are outstanding and unpaid, and at the time other county taxes are levied in each of said years, there shall be computed and ascertained what rate of tax based upon the latest approved tax rolls of said county will be necessary, requisite and sufficient to fully make, raise, and produce in each of said years the amount of principal necessary to be raised for that year, plus the interest maturing in said year upon the amount of this series of warrants outstanding and unpaid and to provide ten per cent, attorney’s fees in case of default,” etc.

We think this levy was sufficient to cover the life of these bonds.

Appellants again urge that the provision of the specifications, to the effect that “bids on the furniture and cabinet work” were limited, in that “persons or firms bidding on this work shall be actually engaged in the manufacture of this class of work, and shall have been for a period of not less than five years,” tends to stifle the bidder. If cannot be successfully contended that any offer to contract for a given service does not itself limit those who are available to perform the service. The statutes limit those who can, contract with the county by requiring a posting of a surety bond. The general contractor in the instant case was required to bid on all the material and make the job complete in every detail. The specifications did not recognize as a party to the contract any subcontractor whatsoever, but gave the general contractor the right to receive bids from subcontractors who could meet, with respect to cabinet work and furniture, the reasonable requirement of being manufacturers thereof for a period of five years. All that is required by law of the commissioners’ court is that the job be submitted to competition. A substantial compliance with the statutory requirement is all that is required. Haralson v. Dallas (Tex. Civ. App.) 14 S.W.(2d) 345, 347; Headlee v. Fryer (Tex. Civ. App.) 208 S. W. 213; article 2368, Rev. Civ. Statutes.

In Headlee v. Fryer, supra, dismissed by the Supreme Court by agreement, the court held that all that was required under articles 2268a and 2268b was that the commissioners’ couft “must take such steps as are reasonably and fairly calculated to 'carry out the act.” We think the undisputed evidence shows, as found by the trial court and by this court, that there was fair and proper competition as required by article 2368. There was sharp competitive bidding by seven responsible contractors, and the bid of the lowest bidder was accepted. It has always been the law that a substantial compliance with the terms of a contract enables the party performing to enforce the same. Linch v. Lumber & Grain Elevator Co., 80 Tex. 23, 15 S. W. 208, by the Supreme Court.

In Dupuy v. Schilling (Tex. Civ. App.) 27 S.W(2d). 323, application for writ of error dismissed by the Supreme Court, it was held that a finding where cost of remedying defects and supplying omissions was $200 did not preclude the finding of substantial performance, where the contract price was $1,725.

In the instant case, the bid was approximately $300,000, and the cabinet work and furniture complained of by appellants was but relatively a very small part thereof^ and, even if the bidding on the cabinet work and furniture was stifled, which we do not believe was done, then the contract as to the other part of the erection of the courthouse should be approved. ' However, we do not believe that the provision in the contract complained of, as shown by the record, tended to stifle competition.

There are other grounds urged by appellants, but we do not find that any sufficient grounds are offered to disturb our former -opinion, which we think was correct. Therefore the motion for rehearing is overruled.


source: Caselaw Access Project

author: DUNKLIN, J. BUCK, J.

license: Public Domain

text:
    PETERSON et al. v. GRAYCE OIL CO. et al.
    No. 12419.
    Court of Civil Appeals of Texas. Fort Worth.
    Jan. 31, 1931.
    Rehearing Denied March 7, 1931.

      De Montel & Sanford, of Wichita Falls, for appellants.
    Kilgore & Rogers, of Wichita Falls, for ap-pellees.
   DUNKLIN, J.

The Grayce Oil Company and ,J. H. Cottom, plaintiffs in the trial court, owned an oil lease on about 49 acres of land situated in Wichita county, designated in the record as the Grayce-Cottom lease. Ed Peterson, J. A. McCarty, and F. B. Jackson, Jr., defendants in the trial court, owned another oil lease on about 100 acres of land adjoining that of the plaintiffs, and designated in the record as the McCarty lease. On both of those leases wells had been drilled which produced oil in paying quantities. In order to increase the production of oil from their wells, defendants installed what is known as a vacuum pump, and as a result of the use of the same the production from those wells was increased. The pump so installed was used for about 90 days, and during all of that time there was á decrease in the production from plaintiffs’ wells. The plaintiffs then complained to the Railroad Commission of Texas of the action of the defendants in installing and using the vacuum pump, and, after an investigation by a representative of the Railroad Commission of the complaint so made, and which investigation disclosed the use of the vacuum pump by the defendants, the commission ordered a discontinuance of the pump, which order was respected by the defendants.

The plaintiffs instituted this suit against the defendants to recover the value of the. oil which they alleged they had lost by reason of the operation by the defendants of the vacuum pump; also for the alleged depreciation in the market value of their lease by reason of the using of the vacuum pump, upon the theory, as reflected in the allegations, that the increased flow of oil caused by the pump had opened subterranean channels between the two leases through which the oil from plaintiffs’ lease would and did continuously flow and thereby drain the'plaintiffs’ lease of oil in excess of any possible drainage through natural agencies which would be operative in the absence of such pump; also for exemplary damages upon allegations that the defendants’ action in installing and using the vacuum pump was taken knowingly and with tlie willful intention of wrongfully appropriating to the defendants oil from plaintiffs’ lease to which they were entitled and which they would have enjoyed but for the use of such vacuum pump.

This appeal has been prosecuted by the defendants from a judgment awarding plaintiffs both actual and exemplary damages.

The trial of the case was before a jury, and the following are the issues submitted to them, with their findings thereon, together with the court’s instructions to the jury in connection with those issues:

“1. You are instructed that the term ‘proximate cause,’ as that term is used in this charge, means the moving and .efficient cause, without which the injury in question would not have happened; an act or omission becomes the proximate cause of an injury whenever such injury is the natural and probable sequence of the act or omission in question, and one that ought to have been foreseen by a person of ordinary care and prudence in the light of the attending circumstances.
■ “2. You are instructed that in law malice denotes a wrongful act intentionally done without just cause or excuse. If an act is committed deliberately with a present consciousness of invading another’s right, such' act is deemed in law to have been committed maliciously. Malice may be inférred from circumstances which show either a reckless disregard of the rights of another or a reckless disregard of consequences to another.
“3. You are instructed that if you find actual damage from a preponderance of the evidence, and you- further find that such damage resulted proximately from the malicious acts of the defendants, then you may in your discretion, assess exemplary damages by way of punishment and for the purpose of setting a wholesome example to others.
“Issues.
“1. Do you find from a preponderance of the evidence that the pump installed on the McCarty lease on or about April 6, 1929, as operated, created a.vacuum? Answer: Yes.
“2. Do you find from a preponderance of the evidence that.during the time the pump installed on the McCarty lease was operated there was a decline in the production of oil from the Grayce-Cottom lease?
“3. If you have answered special issue No. 2 ‘No,’ then you need not answer this issue, but if you have answered it ‘yes,’ then answer:
“Do you find from a preponderance of the evidence that any part of such decline in production on the Grayce-Cottom lease was proximately caused by the operation of the pump on the McCarty lease? Answer: Yes.
“4. If you have answered the preceding interrogatory ‘Yes,’ then answer:
“From a preponderance of the evidence what amount of such decline in production, if any, on the Grayce-Cottom lease, was proximately caused by the operation of such pump on the McCarty lease, giving your answer in barrels? Answer: 726 barrels.
“5. If you have answered special issue No. • 3 ‘yes,’ and have given a number of barrels in your answer to No. 4, then answer:
“From a preponderance of the evidence, what do you find to be the reasonable cash market value of the oil described in your answer to special issue No. 4? Answer: $1,-065.87.
“6. If you have ^answered the preceding interrogatory setting an amount in dollars, then answer the following:
“From a preponderance of the evidence, what amount of money would have been reasonably necessary to have been expended by Grayce Oil Company and Cottom in producing and marketing such additional oil, if any, as you have found in answer to your special issue No. 4? Answer: $44.99.
“7. From a preponderance of the evidence, do you find that the operation of the pump on the McCarty lease proximately caused any decrease in the cash market value of the Grayce-Cottom lease at the time in July, 1929, when such pump on the McCarty lease was disconnected. Answer: Yes.
“8. If you have answered the immediately preceding question in the affirmative, then:
“What amount do you find from a preponderance of the evidence the operation of said pump reduced the cash market value of Grayce-Cottom lease as of the time in July, 1929, when said pump was disconnected? Answer: $10,320.00.
“9. Do you find from a preponderance of the evidence that defendants maliciously applied vacuum to their wells? Answer: Yes.
“10. What amount, if any, do you in your discretion assess against the defendants as exemplary damages? Answer: $5,000.00.”

Upon those findings, the court rendered judgment in plaintiffs’ favor against the defendants for the aggregate sum of $16,340.88.

The record in this case is voluminous, and. the briefs of counsel cover several hundred printed pages, together with supplemental typewritten pages, all of which show diligent research and able presentation of authorities covering every possible phase of the issues involved. It would unduly prolong this opinion to give a discussion of the numerous propositions and counter propositions pre-. sented; nor do we deem it necessary so to do. Hence we will confine this opinion to a discussion of what we deem to be the controlling issues only.

The issues of fact so found, by the jury were tendered in plaintiffs’ pleadings, and they also specially pleaded Rule 40, adopted by the Railroad Commission, of Texas, which reads as follows:

“Rule 40. Vacuum Pumps Prohibited, Except in Certain Cases. — The future installation of vacuum pumps or other devices for the purpose of putting.a vacuum on any gas or oil bearing stratum is prohibited, except as follows:
“(a) In the case of casinghead gas where the same is utilized vacuum may be used, but not more than sufficient to gather the same into the lines and deliver it at the plant, (b) In fields which are depleted or practically depleted, but no vacuum pump shall be installed under authority of súbdivision ‘b’ without a permit from the Railroad Commission after application first made and notice to adjacent lease owners or operators.
“Nothing in this rule shall prevent the use of vacuum in any field where the same is now in use, but the Commission shall have the right, upon complaint, or of its own motion to order the discontinuance or reduction of same, if it shall determine that such use is injurious to the producing formations or in conflict with the Conservation laws of this State.”

It was further alleged that that rule was made and promulgated by the Railroad Commission in accordance with the statutes of the state; and an alleged violation of the provisions of that rule was the basis of plaintiffs’ suit for damages.

The following are provisions of our Revised Statutes by virtue of which the Railroad Commission adopted the Rules and Regulations, including Rule 40 quoted above:

Article 6023. “Power and authority are hereby conferred upon the Railroad Commission of Texas, over all common carrier pipe lines conveying oil or gas in Texas, and over all oil and gas'wells in Texas, and over all persons, associations or corporations owning or operating pipe lines in Texas, * * * and all such persons, associations and corporations and their pipe lines, oil and gas wells are subject to the jurisdiction conferred by law upon the Commission, and the Commission is authorized and empowered to make all necessary rules and regulations for the government and regulation of such persons, associations and corporations and their operations, and the Attorney General shall enforce the provisions of this title by injunction or other adequate remedy and as otherwise provided by law. The word ‘Commission,’ as used in this title, shall mean the Railroad Commission of Texas. The word ‘Commissioner’ shall mean any member of the, Railroad Commission.”

Article 6029. “The commission shall make and enforce rules and regulations for the conservation of oil and gas:

“1. To prevent the waste of oil and gas in drilling and producing operations and in the storage, piping aud distribution thereof.
“2. To require dry or abandoned wells to be plugged in such way as to confine oil, gas and water in the strata in which they are found and to prevent them from escaping into other strata.
“3. For the drilling of wells and preserving a record thereof.
“4. To require such wells to be drilled in such manner as to prevent injury to the adjoining property.
“5. To prevent oil and gas and water from escaping from the strata in which they are found into other strata.
“6. To establish rules and regulations for shooting wells and for separating toil from gas.
“7. To requite records to be kept and reports made by oil and gas drillers, operators and pipé line companies and by its inspectors.
“8. It shall do all things necessary for the conservation of oil and gas whether here especially enumerated or not, and shall establish such other rules and regulations as will be necessary to carry into' effect this law and to conserve the oil and gas resources of the State.”

Article 6042. “Particular powers herein granted to the Commission shall not be construed to limit the general powers conferred by law, and until set aside or vacated by some order or decree of a court of competent jurisdiction, all orders of the Commission as to any matter within its jurisdiction shall be accepted as prima facie evidence of their validity.”

Article 6046. “The Commission, when necessary, shall make and enforce rules and regulations either general in their nature or applicable to particular oil fields for the prevention of actual waste of oil or operations in the field dangerous to life or property.”

The evidence introduced on the trial showed conclusively that the defendants did not apply for, nor were they granted, any permit by the Railroad Commission to use the vacuum pump.

Although oil is of a fugitive nature and may, as the result of the operation of natural subterranean agencies, pass from one location to another, yet it is well settled by the decisions of our Supreme- Court that oil in place belongs to the owner of the title to the land, and that an oil lease executed by the fee-simple owner conveyp an interest in realty. See Waggoner Estate v. Sigler Oil Co., 19 S.W.(2d) 27, by our Supreme Court in an opinion by Justice Greenwood, in which many of the former decisions of the same court are extensively reviewed. From that rule of decisions it follows that oil in place and belonging to the title owner or leaseholder of the land where it is located may, like surface accretions of the soil, be lost to that owner and become the property of the title holder or leaseholder of an adjoining tract whenever such flow occurs solely through the operation of natural agencies in a normal manner, as distinguished from artificial means applied to stimulate such a flow.

The contention is made by defendants that, under the- common law, the plaintiffs had no cause of action growing out of defendants’ use of the vacuum pump to increase the flow of oil from the adjoining lease to their own wells. In that connection they cite the decision of our Supreme Court in Houston & T. C. Ry. Co. v. East, 98 Tex. 146, 81 S.W. 279, 66 R. R. A. 738, 107 Am. St. Rep. 620, 4 Ann. Cas. 827. We quote the following from the syllabus of that decision in 98 Tex. 146: “The owner of the soil has the right to collect by wells and to use, without limitations of amount or use to which it is put, the waters percolating or flowing beneath the surface, though he drains, thereby, the well of a neighboring proprietor to his damage.”

It is further contended that Rule 40 of the Railroad Commission can furnish no proper basis for plaintiffs’ suit because it; does not purport to give a private right of action for damages; that the only authority conferred upon the Railroad Commission by the Regisiature was to make regulations for the conservation of oil and gas and the prevention of waste in the interest of the public; that the penalty prescribed by the statutes for the violation of that rule has the effect to exclude and deny any private or individual right of action for such violation; and that the Regisiature could not delegate to the commission authority to adopt a rule having the effect of a statute which would give the plaintiffs a right of action for the damages sued for in this ease.

It will he observed that the provisions of the statutes quoted above confer upon the Railroad Commission very broad powers, and, while the powers so given are for the purpose of “conservation of oil and gas,” and “to conserve the oil and gas resources of the State,” and other expressions of a like effect, we believe it to be clear that the conservation so intended was for the benefit of legal owners of oil and gas, whether such ownership be in the state or in the citizen, since those commodities would be of no value to any one unless brought to the surface and appropriated to some use; and some of the provisions have direct application to privately owned property. It is also a matter of common understanding recognized by the decisions that oil or gas accumulates in subterranean reservoirs or sands, and that from such common sources they pass or flow through strata of sand which are tapped by wells, and that the pumping of the wells has the effect to draw from the common reservoirs which supply other wells.

In support of their contention that the Regisiature could not delegate to the Railroad Commission authority to adopt rules and regulations that would have the effect of a statute giving a private right of action for their infraction, they have cited many decisions following the general rule that the Regisiature cannot delegate its legislative authority, such as Railroad Commission of Texas v. H. & T. C. Ry. Co., 90 Tex. 340, 38 S.W. 750; State v. St. L. S. W. R. Co. (Tex. Civ. App.) 165 S.W. 491; Burgess v. American Rio Grande Land & Irr. Co. (Tex. Civ. App.) 295 S.W. 649; Genusa v. City of Houston (Tex Civ. App.) 10 S.W.(2d) 772; Board of Water Engineers v. McKnight, 111 Tex. 82, 229 S.W. 301. They also cite Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070, 1079, for a general discussion of the conditions which require the enforcement of that rule of decisions and others to which the rule is not applicable. In the case last cited the trial court held: “That the statutes (article 5107—80, Vernon’s 1922 Supplement), authorizing the petition to the board of water engineers and action thereon by them in the creation of a conservation and reclamation district, was a delegation of both legislative and judicial authority to the board, in violation of section 9, art. 1, and section 1, art. 5 of the Constitution.”

But that holding was reversed by our Supreme Court, in an opinion written by Chief Justice Cureton, and following a reference to article 2 of our Constitution, providing that the powers of government shall be divided into three distinct departments, to wit, legislative, executive, and judicial, “and no person, or collection of persons, being of one of those departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted,” said:

“There is nothing in this article nor in succeeding ones which materially differentiates our Constitution in the respect here involved from those of the other states of the Union. They all provide for the division of the powers of government into three departments, in language similar to our own. 6 Ruling Case Raw, p. 144, § 144; Cooley’s Constitutional Rimitations (8th Ed.) vol. 1, p. 175. It may therefore be said that the general principles of constitutional law, as declared by the various states of the Union, and by the Supreme Court of the United States, on the subject of delegation of legislative power, are applicable and may be examined in determining the meaning of our own constitutional provisions. * * *
“In interpreting and applying provisions similar to our own in various constitutions, in the light of the common law, the courts have found many exceptions to the broad language used, and permitted the delegation of legislative authority for various purposes.
“A fair deduction from the authorities seems to be that inherent exclusive powers of general legislation may not be delegated. 6 Ruling Case Law, p. 164, § 165. But there are many powers which the Legislature might exercise, and sometimes does exercise, which may be delegated. For example, it is not a delegation of legislative power, in violation of the Constitution, to grant some designated body powers which the Legislature cannot-itself practically' and efficiently exercise, such as the mating of railroad rates. 6 Ruling Case Law, p. 180, § 180; Stone v. Farmers’ Loan & Trust Co., 116 U. S. 307, 6 S. Ct. 334, 388, 1191, 29 L. Ed. 636; Reagan v. Farmers’ Loan & Trust Co., 154 U. S. 362, 14 S. Ct. 1047, 38 L. Ed. 1014; Trustees of Saratoga Springs v. Saratoga Gas, etc., Co., 191 N. Y. 123, 83 N. E. 693, 18 L. R. A. (N. S.) 713, and cases in the notes. The Legislature may also delegate the power to make rules to carry into effect complete laws. 6 Ruling Case Law, p. 177, § 178. There are various laws on the statutes of this state illustrative of this principle, among which may be named those authorizing the Governor and sanitary commission to fix quarantine lines, and authorizing them to promulgate rules and regulations relative to the subject, and the Railway Commission Act. Smith v. State, 74 Tex. Cr. R. 232, 168 S.W. 522; Mulkey v. State, 83 Tex. Cr. R. 1, 201 S.W. 991; Serres v. Hammond (Tex. Civ. App.) 214 S.W. 596; G. C. & S. F. Ry. Co. v. State, 56 Tex. Civ. App. 353, 120 S.W. 1028.
“The power to find facts upon the ascertainment of which a completed law shall be applicable may also be delegated. 6 Ruling Case Law, p. 175, § 175, page 179; § 179.
“The authorities also hold that while the Legislature may not delegate its power to make a law, it may enact a law to become operative upon a certain contingency or future event; as, for example, a vote of the people to be affected thereby. 6 Ruling Case Law, p. 166, § 167.”

And, after citing and discussing many authorities and concluding that the act assailed was not violative of the provisions of our Constitution, the opinion continued as follows: “Again, there is strong support for our conclusion in the proposition previously stated that it is not a delegation of the legislative power in violation of the Constitution to grant to some designated body powers which the Legislature cannot itself practically and efficiently exercise. ‘Authorities, supra. In other words, that the exercise of that particular type of authority is read as an exception into the general language of limitation of- the Constitution. It is merely tantamount to saying that the Constitution itself does not require the impracticable or the impossible.”

In the case of Oxford Oil Co. v. Atlantic Oil Producing Co., 22 F.(2d) 597, 598, which case arose in Texas and involved the power of the Railroad Commission to regulate the drilling of oil wells, and in which a petition for certiorari was denied by the United States Supreme Court (277 U. S. 585, 48 S. Ct. 433, 72 L. Ed. page 1000), the Circuit Court of Appeals had this to say: “The right of a state to so regulate the drilling of wells for oil and gas as to conserve the lights of adjoining owners is too well settled to admit of serious controversy. Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 S. Ct. 576, 44 L. Ed. 729; Lindsley v. Natural Carbonic Gas. Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 369, Ann. Cas. 1912C, 160. It Was within the power of the Legislature to lay down a general rule for the protection of the mineral rights of the owners of adjoining lands, and to leave the details of enforcing that rule to an administrative agency or board. Plymouth Coal Co. v. Pennsylvania, 232 U. S. 531, 34 S. Ct. 359, 58 L. Ed. 713.”

See also Lindsley v. Natural Carbonic Gas. Co., 220 U. S. 61, 31 S. Ct. 337, 55 L. Ed. 370, Ann. Cas. 1912C, 160; Comanche Duke Oil Co. v. Texas Pacific Coal & Oil Co. (Tex. Com. App.) 298 S.W. 554; State v. Jarmon (Tex. Civ. App.) 25 S.W.(2d) 936, and authorities there cited; 1 Texas Juris. 625.

It is our conclusion that there is no merit in the contention that the alleged violation of Rule 40 of the Railroad Commission could not be made the basis of plaintiffs’ asserted right of recovery of actual damages on the ground that the delegation of authority to enact the rule was in violation of the Constitution.

The right of plaintiffs to an undisturbed flow of oil, in its natural course, 'from the main reservoir or source, even though that reservoir or source is not located on their lease, is appurtenant to their title to the lease; but that right is common also to the holders of other leases which are supplied with oil from the same common source. All -of such leaseholders have the right to recover the oil, and the only method so to do is to drill wells, and to pump them, in the absence of a flow without pumping. Nee- ‘ essarily the first wells drilled draw more from the common supply than others drilled later; and thus there may be an unequal distribution among different leaseholders. But from the very nature of the situation that result is unavoidable, and loss to subsequent drillers occurring in that manner' may be designated as damnum absque injuria; the policy of law being to favor the diligent. However, according to the rule which seems to be established by the decisions and which appears to be founded upon elementary principles of right and justice, the right of one leaseholder to thus acquire more than his pro rata portion of the common reservoir is limited to the production of oil from a natural flow or from pumping by ordinary methods, to the exclusion of the artificial method of vacuum pumps, which is forbidden by Rule 40 of the Railroad Commission. Such is the effect of the decision of the United States Supreme Court in Ohio Oil Co. v. Indiana, 177 U. S. 190, 20 S. Ct. 576, 583, 44 L. Ed. 729. In that case the State of Indiana, through its Attorney General, procured an injunction restraining the Ohio Oil Company from permitting the waste of natural gas from several wells drilled upon its leases, upon allegations, in substance, that the supply of natural gas which had been enjoyed by citizens in the surrounding territory had been greatly diminished. The suit was based upon the provisions of a statute of the state forbidding such waste. The statute was attacked by the oil company on the ground that its enforcement would constitute a taking of private property without adequate compensation, and therefore amounted to a denial of due process of law in violation of the Fourteenth Amendment of the Constitution. Thac contention was overruled, and the decree granting injunctive relief against the' oil company was affirmed. In the opinion reference was made to the rule of decisions in the state of Indiana, to the effect that oil found in land does not become the property of the lease owner until it is reduced to possession, and had this to say:

“If the analogy between animals ferae na-turae and mineral deposits of oil and gas, stated by the Pennsylvania court and adopted by the Indiana court, instead of simply establishing a similarity of relation, proved the identity of the two things, there would be an end of the case. This follows because things which are ferae naturae belong to the ‘negative communityin other words, are public things subject to the absolute control of the state, which, although it allows them to be reduced to possession, may at its will not only regulate, but wholly forbid, their future taking. Geer v. Connecticut, 161 U. S. 519, 525, 40 L. Ed. 793, 795, 16 S. Ct. 600. But whilst there is an analogy between animals ferae na-turae and the moving deposits of oil and natural gas, there is not identity between them. Thus, the owner of land has the exclusive •right on his property to reduce the game there found to possession, just as the owner of the soil has the exclusive right to reduce to possession the deposits of natural gas and oil found beneath the surface of his land. The owner of the soil cannot follow game when it passes from his property; so, also, the owner may not follow the natural gas when it shifts from beneath his own to the property of someone else within the gas field. It being true as to both animals ferae naturas and gas and oil, therefore, that whilst the right to appropriate and become the owner exists, proprietorship does not take being until the particular subjects of the right become property by being reduced to actual possession. The identity, however, is for many reasons wanting. In things ferae naturae all are endowed with the power of seeking to reduce a portion of the public property to the domain of private ownership by reducing them to possession. In the case of natural gas and oil no such right exists in the public. It is vested -only in the owners in fee of the surface of the earth within the area of the gas field. This difference points at once to the distinction between the power which the lawmaker may exercise as to the two. In the one, as the public are the owners, every one may be absolutely prevented from seeking to reduce to possession. No devesting of private, property under such a condition can be conceived, because the public are the owners, and the enacting by the state of a law as. to the public ownership is but the discharge of the governmental trust resting in the state as to property of that character. Geer v. Connecticut, 161 U. S. 519, 525, 40 L. Ed. 793, 795, 16 S. Ct. 600. On the other hand, as tO\gas and oil the surface proprietors within the gas field all have the right to reduce to possession the gas and oil beneath.' They could not be absolutely deprived of this right which belongs to them without a taking of private property. But there is a coequal right in them all to take from a common source of supply the two substances which in the nature of things are united, though separate. It follows from the essence of their right and from the situation of the things as to which it can be exerted, that the use by one of his power to seek to convert a part of the common fund to actual possession may result in an undue proportion being attributed to one of the possessors of the right to the detriment of the others, or by waste by one or more to the annihilation of the rights of the remainder. Hence it is that the legislative power, from the peculiar nature of the right and the objects upon which it is to be exerted, can be manifested for the purpose of protecting all the collective owners, by securing a just distribution, to arise from the enjoyment, by them, of their privilege to reduce to possession, and to reach the like end by preventing waste. This necessarily implied legislative authority is borne out by the analogy suggested by things ferae naturae, which it is unquestioned the legislature has the authority to forbid all from taking, in order to protect them from undue destruction, so that the right of the common owners, the public, to reduce to possession, may be uiti-mátely efficaciously enjoyed. Viewed, then, as a statute to protect or to prevent the waste of the common property of the surface owners, the law of the state of Indiana which is here attacked because it is asserted that it devested private property without due compensation, in substance, is a statute protecting private property and preventing it from being taken by one of the common "owners without regard to the enjoyment of- the others.”

Even though it could be said that prior to the' adoption of the statutes vesting in the Railroad Commission the powers therein enumerated and the adoption of Rule 40 by the commission, the common-law rule as announced in Houston & T. C. Ry. Co. v. East, 98 Tex. 146, 81 S. W. 279, 66 L. R. A. 738, 107 Am. St. Rep. 620, 4 Ann. Cas. 827, would be applicable to the production of oil by a leaseholder to the same extent as the production of water from a well drilled which would exhaust the supply of an adjoining property owner, yet we believe that the enactment of those statutes and the adoption of Rule 40 by the Railroad Commission would have the effect to change that common-law rule as applicable to the production of oil and gas, and that the same are valid,, in that their effect is merely to protect the right of different lease or title holders in the enjoyment of their coequal rights to acquire oil from a common reservoir.

We have carefully considered plaintiffs’ petition, and have reached the conclusion that the allegations of injuries sustained by them were sufficiently specific to apprise the. defendants of the nature of the evidence which they might expect plaintiffs to introduce, and hence all assignments of error to the action of the court in overruling special exceptions to the petition for lack of specific allegations of injuries sustained and damages flowing therefrom are overruled, especially in the absence of any showing that during the trial the defendants were taken by surprise by evidence offered by the plaintiffs to sustain the allegations of injuries suffered. 3 Texas Jurisprudence, § 878; Mauldin Drilling Co. v. Weyman (Tex. Civ. App.) 3 S.W.(2d) 585; Glenn v. Levee District, 114 Tex. 325, 268 S. W. 452; Golden v. Odiorne, 112 Tex. 544, 249 S. W. 822.

A further contention is made in appellants’ brief that, as a condition precedent of plaintiffs’ right of recovery, it was incumbent upon them to allege and prove that easing-head gas produced by the vacuum pump was more than sufficient to gather the oil into the lines and deliver it at defendants’ plant; in other words, that the burden was upon the plaintiffs by pleading and proof’ to negative the existence of facts stipulated in subdivision (a) of Rule 40, to which the rule would not apply.

Plaintiffs pleaded in general terms, complaining that the use of the vacuum was in violation of the provisions of that rule, with allegations of injuries resulting from such violation. There was no allegation specifically negativing the exception shown in subdivision (a) of Rule 40, nor have we been cited to any exception to the pleading or objection to testimony introduced by the plaintiffs to make out their defense for lack of such specific allegations in the pleadings; and the facts and circumstances offered by plaintiffs were sufficient, prima facie, to show that the use of the vacuum by the defendants did not come within the exception referred to. The defendant likewise introduced testimony tending to rebut that offered by the plaintiffs on that issue, and there was no claim of surprise by reason of such testimony in the absence of a pleading negativing the exception. Under such circumstances, the point so made in this court, now for the first time, is without merit. 3 Texas Juris, 878.'

The testimony showed without dispute that the defendants installed the vacuum pump on their lease and maintained the same for about 90 days, when it was disconnected by order of the Railroad Commission; that during the use of the vacuum pump there was an increase of production from defendants’ wells and that during the same period there was a sharp decline in the production of plaintiffs’ wells. The plaintiffs’ lease was a long-narrow strip of land adjoining the defendants’ lease, and there were eleven oil wells near the border line between the two leases. On that lease there were a total of some 15 wells, all of which, with the exception of three, produced oil from a sand about 850 feet deep. Three of the wells on defendants’ lease and near the boundary line between the two leases likewise were from an 850-foot sand, while others were from a depth of 680 feet, and one was from a 1,780-foot sand.

To make out their case, plaintiffs relied principally upon the decrease in the production of their wells during and after the operation of the vacuum pump, and also upon the testimony of two witnesses, namely, W. P. Olden and E. D. Martin, introduced as experts. The defendants excepted to the testimony of both of those witnesses, on the ground, in substance, that they did not show themselves sufficiently qualified to render their opinions admissible.

Upon the question of his, qualification, the witness Olden testified to many years’ experience in the oil business, including the drilling of wells, the production of oil therefrom,, observing depreciation in production as the result of drilling and other causes; that he had applied air by means of a compressor on a 680-foot sand in order to push the oil from one well to another in wells that were from three to ten years old, but further said that he had never installed or maintained a vacuum pump on his lease; that he had had very little experience in the use of a vacuum; that he would consider plaintiffs’ lease settled production or practically so; that, in the determination of the cash market value of a lease of that character, the price of oil entered into it; that given the price of oil at $1.29 in April, 1929, the date when the vacuum in question was installed, and $1.60 in July, 1929, the Sate when the pump was disconnected, the reasonable cash market value of a lease of that character would be rather hard to answer; that such cash market'value of property of that character runs from $1,000 to $1,250 per barrel. The bill of exception recites that, after the court had overruled defendants’ objection for lack of qualification, the witness testified that in his opinion the operation of the pump would depreciate the market value of the lease. In addition to what appears to be his lack of knowledge of the vacuum pump, from recitals in the bill of exception, it appears in the statement of facts that the witness Olden further testified as follows: “I am familiar with the method of determining the cash market value of an oil producing lease, such as this lease that you have described to me. Well, if you go to buy it, you usually estimate it according to the age of the wells and the depth of the sand and the amount of production it has produced. I would think that it would be worth about $1,-250.00 a barrel. The method which I told you is the method of ascertaining its value and the price of oil — that enters into. * * * I testified that I had had no experience with the vacuum and did not know anything about it.”

We believe that he did not sufficiently qualify to render admissible the testimony given by him as recited in the bill of exception. It is apparent that the answers so given necessarily involved technical knowledge of the construction of a vacuum pump, and also knowledge of the results of its operation, none of which he possessed. Accordingly, the appellant’s assignment of error addressed to the admission of the testimony shown in that bill of exception is sustained. Hugh Cooper Co. v. American National Exchange Bank (Tex. Civ. App.) 30 S.W.(2d) 364, and authorities there cited; Gulf, C. & S. F. Ry. Co. v. Hepner, 83 Tex. 138, 18 S. W. 441; J. P. Watkins Land Mtg. Co. v. Campbell, 98 Tex. 372, 84 S. W. 424; Humble Oil Co. v. McLean (Tex. Com. App.) 280 S. W. 557.

We are not unmindful of many decisions to the effect that the determination of the qualification of a witness to give in evidence his opinion as an expert, is left largely to the discretion of the trial judge. Many of those decisions might be cited, such as International-Great N. Ry. Co. v. Motley (Tex. Civ. App.) 18 S.W.(2d) 782, and decisions there cited; Texas & P. Ry. Co. v. Moore (Tex. Civ. App.) 7 S.W.(2d) 902; Longenecker v. Ward County Water Improvement District (Tex. Civ. App.) 8 S.W.(2d) 306, 308. However, that discretion is not an arbitrary one which might, under given circumstances, be exercised differently by different judges, according to their individual notions; it must be exercised in accord with settled legal rules and principles and based upon sound judgment. If the .testimony given by the witness, offered as an expert, shows clearly that his opinion, desired to be introduced, is a mere guess, then the court has no discretion to hold him qualified. Bouv. Law Dict., vol. 1, pages 884, 885; Words and Phrases, Second Series, volume 2, pages 64 to 67.

However, we are unable to say that the court erred in admitting the testimony of the witness E. D. Martin, in substance, that, by reason of the use of'the vacuum, in his opinion, the market value of the lease was depreciated 25 per cent., in view of the long experience that witness had had in the oil business and his knowledge of the vacuum pump and his observation of the effect of its use in pumping oil.

Hence the assignment of error addressed to the admission of his testimony is overruled; as is also the assignment to the refusal of defendants’ request for an instructed verdict in their favor on the whole case.

The court erred in failing to give some character of instruction to the jury explaining the meaning of the word “wrongful,” as used in his definition of “malice,” and applied in issues Nos. 9 and 10 in submitting plaintiffs’ claim for exemplary damages. Before the charge was given to the jury, plaintiffs duly presented an objection to the court’s failure to define the meaning of that term.

One of the provisions of article 2189, Rev. Statutes, providing for the submission of special issues to the jury; reads: “In submitting special issues the court shall submit such explanations and definitions of legal terms as shall be necessary to enable the jury to properly pass upon and render a verdict on such issues.”

The use made by the defendants of the vacuum pump could not be legally wrongful unless it was in violation of Rule 40, adopted by the Railroad Commission, if that rule be given effect in plaintiffs’ failure, or else contrary to some rule of the common law. None of the issues submitted and none of the.instructions given by the court conveyed to the jury any standard by which they might determine whether the use of such a pump was wrongful; the jury being left to determine the meaning of that term according to any standard that might appeal to them. Many decisions might be cited holding that in like situations it is the duty of the court to give the jury a guide in construing the meaning of such terms. Following are some of those decisions which we believe are decisive of the question in favor of the conclusion we have reached: Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S. W. 975; Missouri, K. & T. Ry. Co. v. Long (Tex. Com. App.) 299 S. W. 854; Robertson & Mueller v. Holden (Tex. Com. App.) 1 S.W.(2d) 570; Stanley v. Spann (Tex. Civ. App.) 21 S.W.(2d) 305; Texas Elec. Ry. Co. v. Scott (Tex. Civ. App.) 21 S.W.(2d) 24; Texas Pipe Line Co. v. Watkins (Tex. Civ. App.) 26 S.W.(2d) 1103.

Nor are we able to say, as insisted by appellees, that malice on the part of defendants was conclusively established by the testimony introduced. While the testimony of one of plaintiffs’ witnesses as to statements made by Jackson tended to show that he installed and used the' vacuum pump for the benefit of defendants and in violation of the known rights of plaintiffs, yet that testimony was flatly denied by Jackson, and other testimony given by him tended to -show that he installed the vacuum pump for such use and under such conditions as came within the provisions of exception (a) embodied in Rule 40; and, under all the facts and circumstances in evidence, we believe that the issue of malice, especially as against the other defendants associated with Jackson, was for the determination of the jury, and the court could not determine that issue in plaintiffs’ favor as a matter of law.

It was also error for the court to tell the jury in the same definition that “malice” may be inferred from circumstances which show a reckless disregard of the rights of another, or a reckless disregard of consequences to another. In the absence of some statute prescribing that such an inference may be drawn, it was exclusively within the province of the jury to determine whether or not it was warranted; and the instruction so given was upon the weight, of the evidence. Cicero-Smith Lbr. Co. v. Denton (Tex. Civ. App.) 16 S.W.(2d) 932; Gimbel v. Gomprecht (Tex. Civ. App.) 36 S. W. 781, and other authorities there cited.

That instruction was subject to the further exception that it was in the nature of a general charge on' the issue of permanent injury to the lease, under such decisions as Humble Oil & Refining Co. v. McLean (Tex. Com. App.) 280 S. W. 557; Brammer & Wilder v. Limestone County (Tex. Civ. App.) 24 S.W.(2d) 99; Texas & N. O. Ry. Co. v. Owens (Tex. Civ. App.) 299 S. W. 933.

Without further discussion of the questions of law involved in this case, we will suggest that upon another trial the issues should be so framed as to give the defendants the benefits of exception (a) in Rule 40. We are impressed that perhaps some of the issues are subject to defendants’ objections, in substance, that they failed to accord to them the benefits of that exception. But we shall not undertake a decision of those objections, since they may be avoided on another trial, in view of what we have said already. And for the same reason we shall omit a discussion of other objections to some of the issues on the ground that they are upon the weight of the evidence. And in this connection we will add that we believe that plaintiffs should specifically negative the facts enumerated in exception (a) of Rule 40, rather than leave that matter to inference from general allegations, as was done heretofore; especially will this be true if a special exception is addressed to the pleadings for the absence of such allegations. 49 Corpus Juris, par. 169, page 153, and authorities there cited.

For the errors noted above, the judgment of the trial court is reversed, and the cause is remanded for another trial not inconsistent with the conclusions reached in this opinion.

On Motion for Rehearing.

In their motion for rehearing, appellees insist that the admission of the testimony of the witness Olden would not constitute reversible error, in view of the testimony of E. D. Martin, referred to in our original opinion, and also the following testimony of C. D. Woods, offered as a witness for plaintiff: “From my experience I think that the fact of that vacuum having been applied there would continue to affect the value of it (plaintiffs’ leasehold), because it would take out oil that would not have been taken out otherwise. I do not think that the w.ells on the neighboring lease to which vacuum was not applied would ever thereafter produce in the normal and usual way which they would theretofore have produced, had not vacuum been applied to the neighboring lease. * * * I am fairly familiar with the method generally employed in arriving at the cash market value of a lease of this character. It is generally based upon a per barrel basis, generally sold at so much per barrel.”

It is to be noted here that the testimony of the witness Woods was likewise objected to by the defendants on the ground of lack of qualification of the witness as an expert, as shown by a bill of exception in the transcript.

Appellees invoke such decisions as Missouri, K. & T. Ry. Co. v. Dilworth, 95 Tex. 327, 67 S. W. 88; Texas Co. v. Ramsower (Tex. Civ. App.) 255 S. W. 466, the general purport of which is that a reversal will not follow by reason of admission of improper testimony if the truth of such testimony is conclusively established by other testimony which is admitted without objection, and which is sufficient to support the judgment. We believe that those authorities have no proper application here.

The witnesses Martin and Woods testified that the use of the vacuum pump would diminish production from an adjoining lease, by drawing oil therefrom by suction. They then testified, in effect, that, by reason of such decrease of production, the market value of plaintiffs’ lease was depreciated, since the market value of a lease having settled production, as was plaintiffs’ lease, was generally fixed on a barrelage basis; that is, by allowing so much for each barrel of production during one day. But, according to other testimony introduced, even settled production may diminish from causes other than the use of a vacuum pump, and the nature of which cannot be determined or known, nor can it be determined how long any lease will continue to produce oil in paying quantities. Under such circumstances, it cannot be said that the testimony of Martin and Woods conclusively showed that, after the pump was disconnected, the market value of plaintiffs’ lease was then permanently depreciated by reason of the former use of the pump, and to the full extent of the damages allowed therefor by the jury. As pointed out in our original opinion, the witness Olden was permitted, over defendant’s objection, to testify that in his opinion the use of the pump did depreciate the market value of plaintiffs’ lease, over and above the loss of oil, while the pump was in operation, notwithstanding he showed by his own testimony that he was not qualified to give such an opinion. And it is impossible to determine just what weight was given -to his testimony by the jury.

Furthermore, in the case of Bell v. Blackwell, 283 S. W. 765, 767, by the Commission of Appeals, it was held that, when an error has been committed in the -trial of a case, reasonably calculated to work injury to the appellant, a reversal will follow “unless it affirmatively appears no prejudice resulted, or that there was no reasonable doubt of the harmless effect of the error,” and that the burden is upon the adverse party to show that the error was harmless. That decision has been cited with approval and followed in many later eases, such as Bain Peanut Co. v. Pinson (Tex. Com. App.) 294 S. W. 536; Parker v. Bailey, 15 S.W.(2d) 1033, expressly approved by the Supreme Court; Lumbermen’s Reciprocal Ass’n v. Wilmoth (Tex. Com. App.) 12 S.W.(2d) 972.

We overrule the further contention made by appellees that the judgment allowing plaintiffs a recovery for losses of oil during the time the vacuum pump was in operation should be affirmed, even though it should be reversed in all other respects, since the issues with respect to those alleged losses and the alleged depreciation in the market value of plaintiffs’ leases cannot be said to be sev-erable, within the meaning of Rule 62a. See, also, Bain Peanut Co. v. Pinson (Tex. Com. App.) 294 S. W. 536, cited above.

The motion for rehearing by the appellees is overruled.

BUCK, J.

(dissenting on appellees’ motion for rehearing).

The writer cannot concur in some of the conclusions reached by Justice DUNKLIN in overruling appellees’ motion for rehearing. In the opinion of the writer, the testimony of E. D. Martin was admissible. It is shown that he had considerable experience with reference to the use of vacuum pumps, and the writer thinks he showed himself qualified to testify as an expert as to the probable effect of the use 'of such pumps, and the tendency to draw from under adjacent tracts oil. The writer also thinks that he showed himself qualified to testify to the effect that vacuum pumps would have to draw the oil from adjacent tracts through channels of oil-bearing sands. Certainly if this was a damage suit against a railway company for allowing cattle to be exposed to freezing weather, and suffer loss in weight therefrom, a cattle man who had had long experience in raising, feeding and-handling cattle, in all kinds of weather, would be qualified to testify as to the effect such c'old would have on the cattle, and his expert knowledge would not be the knowledge of the average juror. Or, if there was a suit against a man or corporation for feeding cattle improper food, a cattle man showing himself qualified as an expert, could testify that hay and forage stuff would not put on as much flesh on' a cow as cotton seed hulls and cotton seed meal. It might be said in that case, as it is claimed in this, that the witness could not see the process of nature, and could not tell except from experience what sort of food would make cattle fat, or what sort of food would be the best to fatten them. The writer thinks that -one who has had a large experience in oil fields; and in the determination of the effect that vacuum pumps have on the increase in oil production, is qualified to testify that vacuum pumps tend to draw the oil from under adjacent tracts, although he never saw such channel made, and was never under the ground where they were made.

The writer has briefly stated his dissenting views, and he thinks that this testimony of E. D. Martin, as well as that of the witness Woods, is sufficiently cogent and positive to justify the trial court and this court to disregard the testimony of W. P. Olden, even though the objection to his testimony be sound, and for this court to affirm the judgment of the trial court. Therefore, in the writer’s opinion, the judgment heretofore rendered, reversing and remanding the cause, should be set aside, and a judgment here entered affirming the judgment of the trial court.