author: ' JONES, C. J.

text:
    MADISON et al. v. MARTINEZ et al.
    No. 11066.
    Court of Civil Appeals of Texas. Dallas.
    July 3, 1931.
    Rehearing Denied Oct. 3, 1931.
    Ross M. Scott, of Dallas, for appellants.
    Smithdeal, Shook, Spence &-Bowyer, of Dallas, for appellees.
   ' JONES, C. J.

Appellant Mrs. D. B. Madison, joined pro forma by her husband, T. B. Madison, instituted a suit in a district court of Dallas county, Tex. to have a judgment of forcible de-tainer, entered in a Dallas county court at Daw in favor of appellee, P. P. Martinez, and against appellant T. B. Madison, declared void and to restrain said Martinez and Hal Hood, sheriff of Dallas county, the other • appellee) from executing the writ of restitution issued on said Judgment. A temporary restraining order was granted ex parte, and appellees were given notice to appear and show cause why a temporary writ of injunction should not issue. At such hearing the temporary restraining order was dissolved, the application for a temporary writ of injunction was refused, and appellants have duly perfected an appeal to this court. tWhen the term “ap-pellee” is use.d, it will refer .to Martinez. The following are the necessary facts:

The temporary injunction prayed for was to prevent the ouster of appellants from the use and possession, ás a homestead, of the property in dispute, which is lot 7 in block 12, Chestnut Hill, an addition to the city of Dallas, pending the suit. When the judgment dissolving the restraining order and denying the prayer for temporary injunction was rendered, appellants in open court requested the court to permit them to file a supersedeas bond, in a sum fixed by the court, and to continue in force the restraining order until an appeal from the order denying the temporary injunction could be determined. The request was denied, the appeal was duly perfected, and this court, on application of appellants, issued a restraining order against appellees prohibiting the enforcement of the writ of restitution until final judgment on this appeal.

Appellants’ petition in the district court is couched only in general terms, and does not allege, except in general terms, that the judgment of forcible detainer in the county court at law is void. While such petition is subject in many respects to special exceptions, because of the general terms of 'its allegations, it is perhaps good as against a general demurrer.

The'facts developed on the hearing in the district court are that H. G. Madison, a single man, was at one time the owner of the property in controversy; that on June 13, 1921, he executed a deed of trust lien on the land to Wendall Spence, trustee, for appellee, to secure a note indebtedness of $2,500, executed by H. G. Madison to appellee. This deed of trust contained a power of sale, authorizing the trustee, under named conditions, to sell the property, if H. G. Madison should default in the payment of the note according to its terms! This deed of trust was duly recorded December 15, 1921, in the office of the county clerk of Dallas county.

It appears that, prior to the execution of this deed of trust, H. G. Madison conveyed the property by warranty deed to appellant T. B. Madison for a recited cash consideration of $5,000. The date of this deed was June 15, 1920, but it was not filed for record until September 23,1922, when it was properly recorded in the records of the county clerk’s office of Dallas county. It thus appears, when the deed of trust was executed by H. G. Madison, he actually owne.(i no interest in the land, though the record title was in him at said time. The pleadings do not raise any question as to such condition of the title to the land, unless the general allegation in appellants’ petition to the effect that the deed of trust was void be construed as referring to such condition of the title.

By an instrument in writing, duly executed, J. W. Hill was appointed by appellee as substitute trustee in place of Weñdall Spence, deceased. On November 7, 1927, the substitute trustee executed to appellee a trustee’s deed for the land in question. The deed contained all of the necessary recitations to show that default had been made in payment of the note it secured; that due notice was given to appellant T. B. Madison, and the land duly sold to appellee, the highest bidder, after the due posting of legal notices as to the time and place of such sale.

On November 10, 1927, appellants duly executed to. appellee a quitclaim deed “for and in consideration of $10.00 and other considerations to us in hand paid by P. P. Martinez, receipt of which is hereby acknowledged * * *” (the recitation of the consideration in the deed).

On August 1, 1928, appellee and appellants entered into a written lease and option contract, whereby appellants acknowledged ap-pellee to be the owner of the land in controversy, and by means of which he leased the property to appellants for the period of time from August 1, 1928, to December 1, 1928, for a stipulated monthly rental. This contract also gave to appellants an option to purchase the property at the expiration of the lease for a stipulated consideration, consisting of various items, and gave to appellants a right of credit on the purchase price, the amount of rental paid by appellants during the existence of the lease. Appellants also were to be allowed certain other credits, not necessary to mention. This contract also stipulates that, if appellants should fail to exercise the option reserved, they would immediately surrender possession to appellee.

Appellants failed to exercise their option on the termination of the lease, and refused to surrender possession, whereupon appellee filed a forcible detainer suit in a justice court in Dallas county. The trial of such suit resulted in a judgment in favor of appellee, and, on appeal by appellants to a county court at law, judgment was again rendered in appellee’s favor March 18, 1931. Appellee attempted to enforce this judgment by causing to be issued a writ of restitution, and placed same in the hands of Hal Hood, sheriff of Dallas county, for execution. Before such writ was executed, appellants filed this suit in a district court of Dallas county, and secured the issuance of the temporary restraining order, which was served on appellees before the writ of restitution was executed. After the entry of the order appealed from, appellants perfected an appeal, and, on their application, this court issued a temporary restraining order prohibiting the execution of the writ pending a decision on the appeal.

As appellees very earnestly challenged the right of this court to issue the restraining order, we deeih it proper now to state the reasons for issuing the restraining order before passing to the consideration of this appeal on its merits. The right to appeal from an interlocutory order, granting or refusing to grant, dissolving or refusing to dissolve, a temporary writ of injunction, is given by article 4662, R. C. S. As to the effect of such an interlocutory order in reference to the rights of the parties pending the appeal, this statute contains this clause, “Such appeal shall not have the effect to suspend the order appealed from unless it shall be so ordered by the court or judge who enters the order.” It was contended by appellees that this statute rests the suspension of the order appealed from exclusively with the district judge, and that this court has no right to do that which the district judge had refused to do, even though a failure to suspend the order appealed from might result in the destruction of the subject-matter of the appeal, and thereby destroy the effectiveness of a judgment of this court in favor of appellants.

Article 1823, R. C. S., provides that the Courts of Civil Appeals and the judges thereof “may issue writs of mandamus and all other writs necessary to enforce the jurisdiction of said courts.” It was contended by appellants that this latter statute grants power to this court to issue a writ of injunction when such writ becomes necessary to protect the jurisdiction of this court over the subject-matter involved, so that any judgment rendered by this court might be effective.

It is clear that Courts of Civil Appeals have no original jurisdiction to grant writs of injunction, except to prevent the invasion of their jurisdiction over the subject-matter of a pending appeal, or to prevent an unlawful interference with the enforcement of their judgments and decrees. This court cannot grant a temporary writ of injunction for the purpose of preventing damages that would otherwise flow to a litigant who has a pending appeal in this court. That power rests exclusively with the district judge. In the instant case, if the effect of the refusal of the district court to continue in force the temporary restraining order theretofore granted would result only in damages or inconvenience to appellants, leaving the subject-matter of the appeal in such a condition that the judgment of this court could effectively operate thereon, then this court would be without jurisdiction to grant such relief, because its jurisdiction over the subject-matter of the appeal would not be invaded. City of Laredo v. Martin, 52 Tex. 548; Tipton v. Railway Postal Clerks’ Invest. Ass’n (Tex. Civ. App.) 170 S. W. 113; Texas Electric & Ice Co. v. City of Vernon (Tex. Civ. App.) 254 S. W. 503; Ellis v. Harrison, 24 Tex. Civ. App. 13, 56 S. W. 592, 57 S. W. 984; Taylor v. American Trust & Savings Bank (Tex. Civ. App.) 265 S. W. 727; City of Farmersville v. Texas-Louisianá Power Co. et al. (Tex. Civ. App.) 33 S.W.(2d) 271.

On the other hand, if the effect of the refusal of the trial court to continue in force the restraining order is to destroy the subject-matter of the appeal, and thereby prevent the effective operation of any judgment this court might render, the jurisdiction of this court would be unlawfully invaded, through the means of the destruction of the subject-matter of the appeal, and the power to issue a proper writ to prevent such condition rests in this court. It was made clear that, if the restraining order did not issue from this court, appellees would execute at once the writ of restitution, and appellants would thereby be ousted of the possession of their alleged homestead before this court could determine their appeal from an order permitting appellees to take such course. If this court should hold, on the merits of this appeal, that the district court erred in refusing to grant the temporary writ of injunction, and should reverse the case with instruction to the judge of the district court to grant the temporary writ, there would be nothing in such an event on which such .judgment could operate, and the judgment of this court would be a nullity. The power given to this court by article 1823, supra, to protect its jurisdiction and to enforce its decrees by the issuance of the necessary writs to effect such purpose is merely the legislative declaration of the inherent powers of this court. We do not believe that it was intended by the Legislature to attempt to' modify such powers by the enactment of article 4602, supra, and we did not so construe it when we granted the restraining order. Hubbart v. Willis State Bank, 55 Tex. Civ. App. 504, 119 S. W. 711; Gibbons v. Ross (Tex. Civ. App.) 107 S. W. 17; Ford v. State (Tex. Civ. App.) 209 S. W. 490; Moore v. McLennan County et al. (Tex. Civ. App.) 275 S. W. 478.

Did the court err in refusing to grant the temporary writ of injunction? At the time the judgment of forcible detainer was rendered against appellants in the county court at law, the record shows that appellee was the owner of the land in controversy, both by virtue of the trustee’s deed and appellants’ quitclaim deed, the first vesting in appellee the title to the land, and the second vesting in appellee any right or title appellants might have had in the land. The lease contract, on its face, shows that it created the relation of landlord and tenant between ap-pellee and appellants. This contract also shows on its face that the appellants’ term of tenancy had ended, and that appellee was entitled to possession of the property in question. Appellants’ testimony shows that they were in possession of the property and claiming it as their homestead, and had been in such possession and made such claim for about eleven years previous to the filing of the forcible detainer suit, and their evidence further shows that appellant Mrs. Madison, who brought this suit, did not know that the forcible detainer suit had been filed until after judgment, and the record shows that she was not a party to such suit.

Appellants claim that Mrs. Madison is not bound by the judgment in the forcible de-tainer' suit, because not a party, and that she was a necessary party because of her homestead estate in the land is not tenable. The property was community property when it was sold under the deed of trust and when appellants executed the quitclaim deed. Under the record title, at the time the lease contract •was executed and the forcible detainer suit was filed, appellants only had such right of possession to the property as was given by the lease contract, and hence appellant, T. B. Madison was the only necessary party to such suit. Zimpelman v. Robb, 53 Tex. 274; Waterman Lumber & Supply Co. v. Robins (Tex. Civ. App.) 159 S. W. 360; article 4619, R. C. S. 1925, as amended by 40th Legislature (1927) p. 219, c. 148 (Vernon’s Ann. Civ. St. art. 4619); 26 C. J. 837; Childress v. Robinson (Tex. Civ. App.) 161 S. W. 78; Gabb v. Boston, 109 Tex. 26, 193 S. W. 137; Chandler v. “Young (Tex. Civ. App.) 216 S. W. 484; Lewright v. Reese (Tex. Civ. App.) 223 S. W. '270; Howell v. Fidelity Lumber Co. (Tex. Com. App.) 228 S. W. 181; Cooley v. Miller (Tex. Com. App.) 228 S. W. 1085; Dallas Plumbing Co. v. Harrington (Tex. Civ. App.) 275 S. W. 190.

The only pleading attacking the validity of the instruments vesting title to the land in .appellee is a general allegation in appellants’ petition, to the effect that the deed of trust is void. There is no pleading attacking the validity of the quitclaim deed. Under the facts of this case, we do not think the trial •court abused its discretion in refusing to grant the temporary writ of injunction. The judg;ment of the lower court is therefore affirmed.

Affirmed.


source: Caselaw Access Project

author: GRAVES, J.

license: Public Domain

text:
    SPEARS et al. v. WOOD et al.
    No. 9583.
    Court of Civil Appeals of Texas. Galveston.
    July 23, 1931.
    John W. Pope, J. L. Zumwalt, and Cedric G. Hamlin, all of Dallas, for appellants.
    J. B. Leigh, of Navasota, and T. P. Buffing-ton, of Anderson, for appellees.
   GRAVES, J.

Appellants, claiming themselves to be the owners of an oil lease appellees had executed on February 25, 1918, on 300 acres of land in Grimes county under an assignment thereof from the Crown Petroleum Corporation, of date October 6, 1921, sued the appellees to recover these separate sums alleged to be due them in consequence of the appellees’ wrongful refusal to recognize them as such owners, and of their repudiation of all obligation to them under such lease, to wit: (1) $356.50 paid by them in cancellation of the Crown Petroleum Corporation’s $220 note to the appellees, which matured August 25,1921, as well as of all rentals due under the lease up to November 25, 1921; (2) a total of $300, paid in quarterly payments of $75, covering rentals that accrued under the lease subsequent to November 25, 1921; (3) $15,000 as damages suffered by them from being deprived of the uses and benefits of the contract.

The learned trial court dismissed the suit on appellants’ refusal to further amend, after sustaining a general demurrer and these special exceptions of the appellees to the petition:

“(a) That said Petition shows on its face that at the time the Plaintiffs purchased the lease described in Plaintiff’s said Petition, if they ever purchased same, which is not admitted but specially denied, that they knew that said lease had been forfeited for nonpayment of rentals, and said Petition showing such knowledge on the part of said Plaintiffs, is insufficient to show any cause of action against these defendants, and of this defendants pray judgment of the Court.
“(b) That said Petition shows on its face that if the Plaintiffs have any cause of action against anyone, such cause of action is against the Crown Petroleum Company and C. . G. Morgan and not against these Defendants, and of this Defendants pray Judgment of the Court.
“(c) That said Petition shows on its face that at the time of the alleged purchase of the lease described in said Petition from the Crown Petroleum Corporation, they knew that said Crown Petroleum Corporation, had not paid the rentals due under the terms of said lease, and had given a note for part of the rentals, and that they knew that said Note was past due and unpaid, and that such knowledge was sufficient to put said Plaintiffs on inquiry as to all of the terms and conditions . of said Note, notwithstanding which they purchased said lease on certain representations alleged to have been made by the Defendants, by reason whereof, said petition is wholly insufficient to show any cause of action against these Defendants, and of this these Defendants pray Judgment of the Court.
“(d) That the allegations set out in said petition as to what the Defendants, C. G. Morgan told Plaintiffs as to the condition of the' lease in controversy and as to the alleged transactions had between the said C. G. Morgan and Plaintiffs, are in nowise binding on these Defendants, and such allegations, in so far as they are sought to be made the basis of a cause of action against these Defendants, should be stricken, and of this these Defendants pray Judgment of the Court.”

Appellants challenge this action as error, and on consideration of their petition, we conclude the position is well taken, in this:

The special exceptions in sum amount to no more than a general demurrer, so the pleading is not only entitled to the benefit of every reasonable intendment, but all its well-pleaded averments are also to be taken as true; giving it that effect, its affirmative allegations, (1) “that the said defendants, Wood and wife, upon said deposit being made in said bank on or about the 10th day of October, 1921, immediately received said sum of money and applied it upon said note, and thereby elected to continue said lease contract in force and effect to November 25, 1921,” (2) “that the plaintiffs on or before November 25, 1921, deposited in said bank to the credit of the defendants, Wood and wife, the sum of $75.00 as payment of rentals for the three months period beginning November 25, 1921,” state a good cause of action — at least for the recovery of the sums of money so charged to have been paid — even though the objections embodied in the special exceptions be good; that would seem to be true, too, notwithstanding it is further alleged that ap-pellees thereafter on January 1,1922, in a suit they instituted against the Crown Petroleum Corporation and the bank where the money had been deposited, procured a court Judgment for the delivery to them of so much of the fund as covered the corporation’s $220 note, because that came months after they were charged with already having so received the money, did not cover all the amount, and furthermore was alleged to have been brought about by a fraud upon the • court that rendered such decree.

Upon these considerations the Judgment should be reversed, and the cause remanded ; it will be so ordered.

Reversed and remanded.


author: PELPHREY, C. J.

text:
    PIERCE PETROLEUM CORPORATION v. SMITH et al.
    No. 2541.
    Court of Civil Appeals of Texas. El Paso.
    July 9, 1931.
    Rehearing Denied Sept. 17, 1931.
    F. T. Denny and Cantey, Hanger & McMahon, all of Fort Worth, for appellant.

      R. Y. Armstrong, .Henderson & Hoyle, and Barron & Ware, all of Bryan, and A. S. Rollins, of Dallas, for appellees.
   PELPHREY, C. J.

This suit was instituted by appellant against Paul Schriewer, Allen Smith, and American Surety Company of New York, to recover • of Schriewer upon a verified open account, the sum of $1,200.44 and interest, and the same amount of Smith and the American Surety Company upon a bond executed by Smith as principal, and American Surety Company as surety, and filed by Smith with the state highway department for the release of funds withheld by the department by reason of the claim of appellant and others, filed in accordance with the provisions of' article 5472b — 1, Civil Statutes.

The following statement of facts was agreed to by the parties:

“That Pierce Petroleum Corporation, plaintiff, is a corporation duly incorporated under and by virtue of the laws of the State of Delaware, and having a proper permit to do business within the State of Texas.
“That in the year 1928 the defendant Allen Smith entered into a contract with the Highway Department of the State of Texas for the construction of a portion of State Highway No. 24 in Young County, Texas, designated as Job FAB441-B, Job 452, and that Allen Smith executed a bond guaranteeing the performance of said contract with the American Surety Company of New York as surety; that such bond is not sued upon here, and no recovery is sought on such bond; that subsequently Allen Smith entered into a subcontract with Paul Schriewer under the terms of which Paul Schriewer was to top the road. That during the months of April and May, 1929, the plaintiff furnished to the defendant Paul Schriewer materials consisting of gasoline, kerosene, lubricating oils and other petroleum products in the amount of $1200.44; that said materials were delivered to and used by the said defendant Schriewer in the performance of his sub-contract, on the highway above designated. That none of said items were furnished to Allen Smith; that thereafter, after said materials had been furnished to Paul Schriewer, the plaintiff notified in writing the Highway Department of •the State of Texas that said products and materials had been furnished to Paul Schrie-wer in the construction of the above mentioned highway, and requested that funds owing by the State Highway Department to the contractor, Allen Smith, under said contract be retained until said claims and debts should be paid; that such request was filed under Article 5472a of the Revised Statutes of 1925.
“That said request was received by the State Highway Department and funds owing by the State of Texas to Allen Smith under such contract was retained in compliance with such request.
, “That on August 2, 1929, Allen, Smith as principal and American Surety Company of New York as surety, filed with the State Highway Department a bond in the sum of $46,829.16 an exact copy of which is marked Exhibit A, is attached hereto and made a part of this Statement of Pacts for all purposes. That said bond was filed under the provisions of Senate Bill 153, Chapter 78, General Laws of the State of Texas, passed by .the Second Called Session of the 41st Legislature. That said suit was filed within six months from the date of the execution of said bond. That suit was filed as on a verified account. That no part of said account has been paid to plaintiff.
“Pierce Petroleum Corporation.”

On a trial before the court judgment was rendered in favor of appellant against Paul Schriewer for the full amount of its claim, but that it take nothing against Allen Smith and the American Surety Company. Prom such judgment appeal has been perfected to this court.

Opinion.

Appellant in its brief presents six propositions upon which it seeks to have that part of the judgment denying it recovery against Allen • and the surety company reversed and rendered.

The contentions made are that the court erred in its conclusion of law that article 5472a should be strictly construed; that under the provisions of the statutes a mate-rialman furnishing material to a subcontractor engaged in constructing a state highway, upon giving the prescribed notice to the officials of the state highway department, is entitled to a lien upon the funds due or to become due to the original contractor; that appellant having perfected its lien against the funds due and to become due to Allen Smith by the filing of its claim, and he having filed a replevin or release bond with the state highway department, appellant, being one of the obligees in said bond, was entitled to sue thereon and the trial court should have rendered judgment in its favor against the principal and sureties on said bond for the amount of its claim as well as for reasonable attorney’s fees.

The act which we are called upon to construe reads:

“Chapter 17.
“S. B. No. 123.
“An act to create a lien in favor of any person, firm or corporation who may furnish any material, apparatus, fixtures, machinery or labor to contractors who contract for public improvements, and declaring an emergency. •
“Be it enacted by the Legislature of the State of Texas:
“Section 1. That any person, firm or corporation, or trust estate, furnishing any material, apparatus, fixtures, machinery or labor to any contractor for any public improvements in this State, shall have a lien on the moneys, or bonds, or warrants, due or to become due to such contractors for such improvements; provided, such person, firm, corporation, or stock association, shall, before any payment is made to such contractor, notify in writing the officials of the State, county, town or municipality whose duty it is to pay such contractor of his claim.
“Sec. 2. That no public official, when so notified in writing, shall pay all of said moneys, bonds or warrants, due said contractor, but shall retain enough of said moneys, bonds or warrants to pay said claim, in case it is established by judgment in a court of proper jurisdiction.
“Sec. 3. The fact that the State is now entering upon a period of intensive road building and public improvements and that the machinery people have to supply the contractors on such public improvements with machinery to make improvements, and that such machinery people lose enormous amounts of money by such contractors leaving their jobs incomplete and making away with the machinery, creates an emergency and an imperative public necessity that the rules requiring bills to be read on three several occasions be suspended, and that this law take effect from and after its passage, and it is so enacted.” Vernon’s Ann. Oiv. St. arts. 5472a, 5472b.

In the ease of Huddleston & Work et al. v. Earl Kennedy, the Waco Court of Civil Appeals, in passing upon the question of whether the lien provided by the statutes inured to the benefit of those who furnished labor and material to subcontractors, said: “It is our view that article 5472a should not be limited to any particular group or set of claimants, but that same provides for an additional lien to that provided in article 5160. Laborers and materialmen who comply with the terms and provisions of article 5160, thereby fix a cause of action against the surety on the original bond. Failing so to do, they' can derive no benefits from that bond. . But nevertheless they have a remedy in the nature of a garnishment provided in article 5472a. This double remedy, we think, is not limited to any particular group or class, but is available to all persons, firms and corporations furnishing any material, apparatus, fixtures, machinery or labor, whether prior or subsequent to the making of the original contract between the contractor and the state or municipality. This view finds support in the provisions of article 6674m, R. S., wherein it is provided that the State Highway Commission shall retain 10% of the contract price for road improvement until the entire work has been completed and accepted, ‘and final payment shall not be made until it is shown that all sums of money due for any labor, materials or equipment furnished for the purpose of such contract has been paid.’ These statutes are in pari materia and should be construed together. Thus considering them, and in connection with article 5160, a policy seems to be evidenced to protect those who furnish material and perform labor for the benefit of the public, without distinction as between those who furnish to general contractors and those who furnish to sub-contractors. Article 6674k empowers the Highway Commission to prescribe the form of contracts with road contractors. The contract in the instant case obligated the contractors to ‘provide all the necessary machinery, tools, apparatus and other means of construction, and to do all the work’ called for in the contract. The Commission is required to withhold 10% of the contract price to guarantee the performance of this obligation. The responsibility is thus placed upon the general contractor to provide for his own protection in subletting the work which he has contracted to do, and laborers and materialmen are relieved of the responsibility of investigating and determining the solvency of the sub-contractors and the wisdom of their contracts.”

We are in accord with that holding and feel that any other construction would result in nullifying the very purpose the Legislature had in mind, namely, the protection of those who furnish labor and material for the building of public improvements in this state.

The counter propositions presented by ap-pellees in which they contend that no lien was established because the claim was not filed before any payment was made to Allen Smith, and because the claim was not filed with the official of the state whose duty it is to pay, are, in our opinion, untenable.

The statute providing for the filing, before any payment is made to the contractor does not preclude a claimant from recovery simply because a payment had theretofore been made to the contractor, but merely means that he is entitled to no lien on the moneys, bonds, or warrants after they have been delivered to the contractor.

Under the facts here and by virtue of our statutes, we feel that the state highway commission was the proper agency with which claims should have been filed, and therefore appellant’s lien became fixed upon the filing of its claim with that body.

Believing that the trial court erred in his construction of the statutes and in not allowing appellant a recovery on the release bond, judgment is here rendered in favor of .appellant against Allen Smith, as principal, and the American Surety Company of New York, as surety, for $1,200.44, and $250 attorney’s fees as prayed for, to be taxed as part of the costs.

       Case certified to Supreme Court and opinion of Court of Civil Appeals' not released for publication.


text:
    GREEN v. JACKSON.
    No. 2560.
    Court of Civil Appeals of Texas. El Paso.
    Sept. 24, 1931.
    H. E. Wassell, of Wink, for appellant.
    Sayles & Sayles, of Eastland, T. H. Neel, of Pyote, and T. G. Jackson, of Longview, for appellee.
   PELPHREY, C. J.

On the evening of November 26, 1929, appellant, in a Whippet sedan, driven by C. C. Hawkins, was going in the direction of Barstow on the highway between Pecos and Barstow, Tex. Appellee in a Chrysler was driving in a westerly direction. About four miles west of Barstow the two cars collided, damaging both of them considerably. At or near the point of the accident a car without lights, at night, was parked on the north side of the highway. The record shows that appellant, as plaintiff, filed suit against ap-pellee, as defendant, in the county court oí Ward county, some time prior to Eebruary 24, 1930. On that date appellant filed his first amended petition seeking to recover the sum of $450 damages to his automobile.

On May 6th, J. Lee Bilberry, as amicus curim, filed a motion to dismiss the suit because neither the original nor amended petition set out the residence of the defendant.

On the same date, the same attorney, as attorney for defendant, filed a motion to quash the citation, for the reason that it failed to show that it was an alias citation, and the certified copy of the petition attached to the citation failed to set out the residence of the defendant.

On the 8th day of August, 1930, appellee filed an application for a continuance. In the transcript there appears what is designated as “Order of Court,” in which it is shown that the case was set on 8/4/30 for trial on August 12, 1930; was continued until the November term on application of ap-pellee on that date; was set for trial on November 14, 1930, and default judgment taken on that date; that motion to set aside judgment and for a new trial was filed and granted on November 18, 1930.

Appellee, on November 22, 1930, filed his answer and cross-action, to the filing of which appellant excepted. On the same date appellant filed his second amended petition to which appellee filed his answer and cross-action. J. Lee Bilberry being the regular county judge of Ward county, the parties agreed that T. F. Slack should act as special judge to try the cause.

.Judgment for appellee in the main suit and against him on his cross-action was rendered November 22, 1930, and on the same day appellant’s motion for new trial was overruled. An appeal has been perfected to this court.

Opinion.

The errors complained of are; (1) That the court erred in setting aside the default judgment because appellee bad not shown due diligence and did not set up a meritorious cause of action in his motion; (2) that the court erred in overruling certain exceptions interposed to appellee’s motion; (3) that the court erred in overruling his exceptions to appellee’s cross-action; (4) that the court erred in refusing to set aside the judgment of November 22, 1930, because it is contrary to the undisputed evidence; (5) that the court improperly admitted evidence of damages to appellee’s car; and (6) that the court erred in failing, to file findings of fact and conclusions of law upon appellant’s request.

It appears from the bill of exceptions that appellant requested the court to file its findings of fact and conclusions of law, but that such request was not complied with, and the failure of the court in this respect is made the basis of appellant’s seventh assignment of error.

Appellee submits that appellant, having filed in this court a full and complete statement of facts, agreed to and approved by him, and having shown no prejudice by the trial court’s failure to file findings of fact and conclusions of law, the judgment should not be disturbed. We cannot so hold. The decision of the Commission of Appeals in the case of Railway Company v. Stewart & Threadgill, 257 S. W. 526, we think is controlling, and without setting out the evidence, there appears to be evidence clearly conflicting on the issues of negligence, and it therefore appears that appellant was injured, by the court’s failure in making a fair presentation of his appeal.

The judgment recommended by the Commission was adopted by the Supreme Court. See, also, Childress v. Wolf (Tex. Civ. App.) 273 S. W. 274; Albrecht v. Housewright (Tex. Civ. App.) 21 S.W.(2d) 51; Bida v. King (Tex. Civ. App.) 38 S.W.(2d) 118.

A motion to vacate a judgment by default is addressed to the sound discretion of the court rendering the judgment, and its action thereon will be sustained unless it is clearly shown that the discretion has been abused. 3 Tex. Jur. pp. 1086, 1087, and authorities there cited.

We do not feel that such an abuse of the trial court’s discretion has been shown here as would warrant a reversal of the judgment for that reason, and certainly we would not be justified in doing so in view of the fact that appellant was afforded an opportunity to have his case tried on the merits eight days after the default judgment was rendered. _

The only exceptions to appellee’s answer and cross-action read:

“Comes now the plaintiff herein and excepts to the filing of the Answer of the defendant herein at this time, the morning of the trial hereof, said cause having been heretofore tried on November 14th, 1930, when said cause was set down for trial and tried in the absence of the defendant, when no answer had been filed, because the filing of said answer comes now too late; and further because Plaintiff has long been ready for trial herein and the answer now contains a cross-action against this Plaintiff which was not heretofore known would be made.
“2. Because said answer contains no defense, and a general denial was inserted in said answer after same was filed -over the exception of this plaintiff.
“3. Subject to the above exceptions, Plaintiff denies all and singular .the material allegations in ■ said purported cross-action except the time and place of said collision being in Ward County, Texas.”

By his bill of exception No. 2, appellant attempts to show that a general demurrer to appellee’s cross-action was overruled by the court, and that he excepted to the measure of damages alleged.

The record before us contains no such exception, and we are not at liberty to consider the questions presented by appellant's fourth assignment.

The record showing no exception to the pleading of appellee as to his damages, appellant’s assignment as to the admission of testimony as to damages because not properly pleaded, cannot be considered.

We cannot agree with appellant’s contention that the judgment was contrary to the undisputed evidence. It appears to us that there was a sharp conflict as to who was responsible for the collision and therefore a judgment of the court in favor of either party might be sustained. •

In view of the fact that the judgment is to be reversed, we think it unnecessary to discuss the remaining questions. Because of the court’s failure to file findings of fact and conclusions of law, upon being requested to do so, the judgment must be reversed and the cause remanded.


author: WALKER, J.

text:
    THOMPSON et al. v. THURBER BRICK CO.
    No. 2102.
    Court of Civil Appeals of Texas. Beaumont.
    Sept. 18, 1931.
    Rehearing Denied Sept. 23, 1931.
    Ball & Simmons and R. S. Durno, all of Houston, and E. F. Thompson, of Oakland, Fla., for appellants.
    T. S. Taliaferro, and Shelby Fitze, both of Houston, and John Hancock, Clarence Wight-man, and Joe S. Davies, all of Fort Worth, for appellee.
   WALKER, J.

This suit was by appellee, Thurber Brick Company, against appellants Alice B. Thompson and her husband, E. F. Thompson, upon a paving assessment certificate against certain real property situated in the city of Houston, Harris county, belonging to Mrs. Thompson as her separate estate, and to fore-, close the assessment lien against said property. Upon trial to the court without a jury judgment was entered in favor of appellee for the amount of the certificate in the sum of $2,103.69, with foreclosure of the lien, as pleaded, with a personal judgment against Mrs. Thompson for the full amount claimed. Appeal was perfected to the Galveston Court of Civil Appeals but transferred to this court by order of the Supreme Court.

Since appellants were nonresidents of the state at the time notice was given them of the proposed improvements and personal service of sqch notice was not had within the state, appellee concedes error in so far as the judgment awarded a personal' recovery against appellant Mrs. Alice B. Thompson. To that extent appellee asks that the judgment be reversed and in that respect rendered in favor of appellants. This prayer of ap-pellee is granted.

Appellants erroneously insist that ap-pellee’s third amended original petition, up.on which the case was tried, and the original petition, were subject to their general demurrers. In: both these petitions it was alleged in a general way that all proceedings and prerequisites with reference to making the improvements and the issuance of the assessment certificate and the fixing of the lien were regular and were had in compliance with-law and that all legal steps necessary to the validity of the assessment certificate and to the fixing of the lien were taken in the manner prescribed by law. In the third amended original petition all these various steps were specifically pleaded. It was further alleged in both petitions that appellants’ property was improved according to the approved plans and specifications. If we understand appellants’ proposition, it is contended that the original petition was subject to the general demurrers because the various steps to fix the lien against the property were not specifically pleaded. It seems to be urged against the third amended original petition that it was subject to the general demurrer because the orders, resolutions, and so forth, directing the issuance of the certificate, were not copied into the petition; and, further, that notice to appellants of the proposed improvements and special benefits were not pleaded and that no resolution was pleaded directing that the highway upon which appellants’ lot was situated was to be improved. Under the following authorities neither of the petitions was subject to the general demurrer; Blair v. City of Houston (Tex. Civ. App.) 252 S. W. 882; Elmendorf v. City of San Antonio (Tex. Civ. App.) 223 S. W. 631, 636; Herring v. City of Mexia (Tex. Civ. App.) 290 S. W. 792; Fenstermaker v. City of San Antonio (Tex. Civ. App.) 283 S. W. 883. In Elmendorf v. City of San Antonio, the court said: “It is true that the ordinances, resolutions, and other matters are not copied in the petition, nor is each act done or step taken pleaded in detail, but the petition states a cause of action, and we are also of the opinion that it is not subject to any of the special exceptions urged by appellants. ⅜ * * The opinion of the Supreme Court in the case of Lockhart v. City of Houston [45 Tex. 317], supra, furnishes an answer to the contentions that special exceptions should have been sustained complaining of what appellants regard as conclusions. The rule there announced was held applicable to street assessments by the Supreme Court of Washington, in the cited case of Town of Elma v. Carney [4 Wash. 418, 30 P. 732].” '

Appellee’s cause of action matured on the 3d day of September, 1927. The original petition was filed the 16th day of April, 1929, and the first amended original petition, which appellants concede was not subject to the general demurrer, was filed in November, 1929. Under City of Fort Worth v. Rosen (Tex. Com. App.) 228 S. W. 933, the certificate sued' upon was subject to the two-year statute of limitation (Rev. St. 1925, art. 5526). On the ground that the original petition was Subject to the general demurrer, appellants insist that the cause of action was barred by the two-year statute of limitation before ■the first amended original petition was. filed. As the original petition was not subject to the general demurrer, there is no merit in this contention. But even if the original petition were subject to the general demurrer, it was cléarly sufficient to stop the running of the statutes of limitation, under the rule stated by 11 Michie’s Texas Digest, 1252, “A suit will prevent the running of the statute of limitation, although the petition be bad on general demurrer, and is not amended until after the period has elapsed.”

It is further contended that the third amended original petition filed the 10th day of March, 1930, set up a new cause of action, and that under that petition, upon which the case was tried, there was a fatal variance between the certificate, as described therein, and the certificate offered in evidence. In support of these contentions appellants contend that in the third amended original petition appellee pleaded a certificate issued by the city of Houston under a contract between the city of Houston and Thurber Brick Company, while in the original and first and second amended original petitions it pleaded a certificate issued by the city of Houston under a contract with San Jacinto Construction Company. On its face the certificate recited that it was issued ■ under a contract between the city and San Jacinto Construction Company. Appellants have not correctly construed the third amended original petition. In that petition appellee pleaded the same contract and certificate as in the preceding petitions, but gave the history of the contract between the city of Houston and San Jacinto Construction Company, as follows: “And that thereafter the bids of Thurber Construction Company were duly accepted and that the contract for said improvements awarded to it by resolutions of City Council passed April 12, 1926.” And also “that on April 14, 1926, the City Council caused to be-executed a contract between the City of Houston and said Thurber Construction Company, etc., * * * which contract was thereafter duly assigned to the San Jacinto Construction Company, for the performance of said work, with construction and maintenance bonds as required by the City Charter. * * * That the paving and improvement of said Harrisburg Road was duly completed by the San Jacinto Construction Company in accordance with the said contract with the City of Houston, etc., and also that thereupon the said City of Houston, acting by and through its properly and duly constituted officers, executed .and delivered to said San Jacinto Construction Company said improvements certificates.” It follows that the third amended original petition did not state a new cause of action, and that no variance existed between the certificate pleaded therein and the one introduced in evidence.

It is also insisted that the certificate was void because it was not signed by the proper city officers, as required by the city charter. The charter provision is, “Such certificates shall be signed by the Mayor and certified by the Comptroller, with the impress of the corporate seal.” This certificate was executed by the city of Houston by its mayor pro tem., H. A. Halverton, and city secretary, W. A. Moore. The ordinance under which the certificate was issued directed that it be executed-by the mayor and attested by the city secretary, with the corporate seal of the city. By ordinance adopted the 18th day of September, 1905, after the charter containing the provision above quoted had been duly adopted, the office of the city secretary was lawfully created by the city council of the city of Houston, making the city secretary custodian of the records of the council, with power to make certificates of its proceedings and to affix the corporate seal of the city thereto. He was also legal custodian of the corporate seal. Prior to the adoption of this ordinance under the charter of the city of Houston, the city comptroller was ex officio city secretary. The office of mayor pro tem. was created by the charter of the city of Houston with the provision that in certain contingencies the mayor pro tem. should act as mayor. On the facts stated the certificate was signed and issued by the proper officers. As the mayor pro tem. in certain contingencies had the power to act for and in the name of the mayor, and having go acted in executing this certificate, it must be presumed that a contingency arose authorizing him to act. Muller v. Boone, 63 Tex. 93; Rowan v. Lamb, 4 G. Greene (Iowa) 468; Sheldon v. Wright, 7 Barb. (N. Y.) 39. Under Holt v. Uvalde Company (Tex. Civ. App.) 258 S. W. 285, it may also be presumed that Halverton, having acted as mayor pro tem., legally held that office. After the adoption of the charter, and before the enactment of the ordinance of 1905 creating the office of city secretary, the city comptroller, ex officio," performed the duties of the office of city secretary. However, after that office was lawfully created, the comptroller ceased to perform these ex officio duties. The charter provision that the comptroller attest paving certificates with the impress of the corporate seal was an ex officio duty belonging to the office of city secretary. Under the charter, the city council had the lawful power to take this duty from the comptroller and impose ¾ upon the city secretary. It follows that the city secretary, in affixing the corporate seal to this certificate, did so in a lawful'manner, and not in violation of the charter provision relied upon by appellants.

Further answering this contention, it could be said that since the charter did not require the comptroller to sign the certificate, but only to attest the same with the impress of the corporate seal, this duty was purely ministerial and could be performed under orders of the city council by the officer having the lawful custody of the seal. State ex rel. Skrainka Construction Co. v. Reber, 226 Mo. 229, 126 S. W. 397. What has just been said overrules appellants’ contention that the court erred in admitting the certificate in evidence over the objections, “that it was not signed by the proper officials” and “it appeared on its face that it was not issued under a contract, as plead.”

It is contended by the fifth proposition that the certificate was void because appellants “had no notice of any hearing on special benefits,” and by the ninth proposition that “the court erred in excluding the testimony of witnesses offered by the defendants.” There is no merit in the fifth proposition. By introducing the certificate in evidence with its recitations, appellee made a prima facie case of notice. The certificate gave in detail the proceedings under which the certifícate was issued and also contained the following recitation: “That all proceedings with reference to making such improvement have been regularly had in compliance with the law, the Charter of said City, and the terms of this Certificate, and that all prerequisites, to the fixing of the lien and claim of personal liability evidenced by this Certificate have -been performed. That said improvement has been Completed by said Company in compliance with the, terms of said contract, and was accepted by said City on the 3rd day of August 1927.” In Herring v. City of Mexia (Tex. Civ. App.) 290 S. W. 792, 794, writ of error refused, it was said: “The introduction in evidence of tbe certificate sued upon made out a prima facie easefor appellee, and was sufficient prima facie evidence that all antecedent prerequisites bad been complied with.” See, also, article 1090, R. S. 1925.

Tbe ninth proposition is overruled on tbe ground that it is too general to present for review any proposition of law, and because it fails to call to our attention tbe. specific error complained of. But when ap-' pellants’ argument under this proposition is examined it is seen that tbe proposition is multifarious in that they complain of tbe exclusion of tbe testimony of E. E. Thompson and J. W. Hazard, “an expert,” “that tbe property in question was not benefited,” and the testimony of E. P. Thompson “that tbe defendants received no notice of any bearing on special benefits.” We do not understand that tbe rules of briefing permit appellants to advance a general proposition to tbe effect that “tbe court erred in excluding the testimony of witnesses offered by the defendant,” and under this general proposition complain of all excluded evidence, upon whatever issue it may have been offered. Kennedy v. McMullen (Tex. Civ. App.) 39 S.W.(2d) 168.

In view of what we have said above, it is not necessary to discuss appellants’ assignments that tbe court erred in bolding that they were estopped to contest tbe validity of the assessment certificate on tbe ground that they did not file suit to set aside tbe assessment within tbe time prescribed by tbe charter. Estoppel was only one theory of tbe case. Tbe judgment correctly rests upon tbe grounds discussed.

Appellants complain that the court erred in awarding attorney’s fees against them, because: “(a) It was not shown' by evidence that there was a contract to pay an attorney’s fee in any sum. (b) It was not shown that plaintiff had paid any sum whatever to an attorney. And (c) it was not shown that the plaintiff had become obligated to pay any sum as attorneys’ fees.” Appellants make no statement and cite no authorities in support of this proposition. There is not merit in the contention. By section 9, article IVa, of the Charter of the City of Houston, it is provided that the portion of costs assessed against any owner, or his property, together with reasonable attorney’s fees and costs of collection when incurred, shall constitute a prior lien upon said property. The assessment ordinance under which this certificate was issued provided “and the said certificates shall further provide * * * the whole of said assessment shall at once become due and payable and shall be collectible with reasonable attorneys’ fees and costs, if incurred.” The certificate recites: “ * * * And the full amount of principal thereof shall be collectible with accrued interest and reasonable attorneys’ fees and costs of collection, if incurred,” and “that by said ordinance’ said assessment, with costs of collection and reasonable attorneys’ fees, if incurred, is declared to be a first and paramount lien upon said premises.” S. Sitze, a witness for ap-pellee, testified as to the amount of work required to be done by him as one of the attorneys for appellee, in preparing this case for trial. Elbert Ross, another witness for appellee, testifying on the issue as to a reasonable attorney’s fee in this case, said: “My answer is ⅜ * * from the amount of work stated by you, I would say $750.00.”

It follows that the judgment appealed from should be in all things affirmed except in so far as a personal recovery was awarded against appellant Mrs. Thompson, and in that respect the judgment of the lower court is reversed and judgment here rendered in her favor.

Reformed and affirmed.


author: LANE, J.

text:
    BURKHART v. BRAZOS RIVER HARBOR NAV. DIST. OF BRAZORIA COUNTY et al.
    No. 9592.
    Court of Civil Appeals of Texas. Galveston.
    July 16, 1931.

      W. S. Sproles, of Angleton, for appellant.
    Rucks & Enlow, of Angleton, for appellees.
   LANE, J.

On the 19th day of February, 1925, the Thirty-Ninth Legislature of this state, by virtue of section 59, article 16, of the state Constitution, passed an act authorizing the creation within this state of districts to be known as navigation districts. Such act specially provides for the development and improvement of navigation of the inland and coastal water of the state.

By section 29 of such act (Acts 39th Leg. [1925] c. 5), now article 8263, Revised Statutes of 1925, it is provided as follows: “The navigation board of said district shall provide all necessary additional books for the use of assessors and collectors of taxes and the clerk of the commissioners’ court of jurisdiction for said navigation districts. The tax assessors of each county in said navigation district, when ordered to do so by the commissioners’ court having jurisdiction of said district, shall assess all property within said navigation district which is located in his county and list the same for taxation in the books or rolls furnished him for said purposes, and return said books or rolls at the same time when he returns the other books or rolls of the State and county taxes for correction and approval to the commissioners’ court of his county, and if said court shall find said books or rolls correct- they shall approve the same, and in all matters pertaining to the assessment of property for taxation in said district, the tax assessors and boards of equalization of the counties in which said district is located shall be authorized to act and shall be governed by the iaws of Texas for assessing and equalizing property for State and county taxes, except as herein provided. * * * The tax assessors shall receive for such services such compensation as the said navigation and canal commissioners shall deem proper; provided that said county assessors shall in no event be allowed more than they are now allowed for like services. Should any tax assessor fail or refuse to comply with the orders of said commissioners’ court requiring him to assess and list for taxation all the property in such navigation district, as herein provided, he shall be suspended from the further discharge of his duties by the commissioners’ court of his county, and he shall be removed from office in the mode prescribed by law for the removal of county officers.”

Under and by virtue of the provisions of said act, Brazos river harbor navigation district of Brazoria county was duly created ifi Brazoria county. R. G. Burkhart, tax collector of Brazoria county, was ordered by the commissioners’ court of said county to assess all property within said navigation district and list the same for taxation in books or rolls furnished him for such purpose, for the years 1927, 1928, and 1929. Burkhart performed the duties imposed upon him by virtue of the act mentioned and the order of said commissioners’’ court, and for such service he made the following charges against the Brazos river harbor navigation district:

For the year 1927. $1,775.97
For the year 192S. 1,817.97
For the year 1929. 1,774.71
A total of.'. $5,868.65

Burkhart made such charges and claims such sums were due him by virtue of the provisions of article 3937 of the Revised Civil Statutes of 1925, passed by the Thirty-Ninth Legislature March 30, 1925 (chapter 150), which, among other things, provides as follows : “For assessing the taxes in all drainage districts, road districts, or other political subdivisions of the county, the assessor shall be paid three-fifths (3/5) of one cent for each one hundred ($100.00) dollars of the assessed values of such districts of [or] subdivisions.”

The navigation commissioners allowed Burkhart the sum of $60 per month for the time he served in making the assessments mentioned, amounting to the sum of $2,160; said commissioners deeming such compensation to be proper compensation as provided by section 29 of article 8263, hereinbefore quoted.

Upon the payment to him of the said sum of $2,160 and the refusal of the commissioners to pay more, Burkhart brought this suit against Brazos river harbor navigation district of Brazoria county, hereinafter referred to as the navigation district, the county commissioners, the commissioners of the navigation district, and the county treasurer, to recover the sum of $3,208.65, same being the difference between the sum claimed by him and that allowed him.

The plaintiff alleged that section 29 of article 8263, under which the defendants claimed authority to use their discretion in fixing the compensation of the tax assessors at such sum as they deemed proper, is in violation of section 1, Amendment 14, of the Constitution of the United States, and also the following sections of the state Constitution, to wit, section 19, article 1, section 1, article 2, section 13, article 1, section 17, article 1, and section 44, article 3.

As an alternative plea, plaintiff alleged that his services were reasonably worth the sum of $5,36S.65, and prayed that he have judgment for such sum, less the sum theretofore paid to him.

Plaintiff also alleged that he was paid less than the law provides for him, and that other officers of the county were paid more than the law provides for them, and that the commissioners thereby displayed favoritism to one officer and hostility to another. 1-Ie also alleged that, while the law requires the navigation and canal commissioners to make an annual report to the commissioners’ court, such commissioners, though they have been in office more than four years, have never made but one report to said court, and that one was not in compliance with the law, in that it did not itemize the amount of money received and paid out by the district.

In answer to plaintiff’s petition, defendants demurred generally, and specially excepted to so much of said petition as alleged hostility on the part of the commissioners to plaintiff and favoritism to others, and to so much thereof as complains of the failure of the navigation and canal commissioners to make annual reports, as the law requires; in that such allegations are wholly irrelevant and immaterial to any issue in the cause. Further answering, defendants denied generally, and specially pleaded as follows: “And further answering herein, if required, defendants allege that they paid to plaintiff the sum of Sixty ($60.00) Dollars per month for his services in assessing the taxes for said Navigation District for the years mentioned in plaintiff’s petition; that said compensation is a fair, adequate and proper compensation for the services rendered by plaintiff in that behalf; that plaintiff received for his services for assessing State and County, drainage district, road district, school district, and navigation district taxes for the said years 1927, 1928, and 1929, the approximate net sum of $7,000.00 per annum, and that said compensation is and was wholly adequate and sufficient for all of the services rendered by plaintiff as assessor of taxes for all purposes in said County, and defendants allege that plaintiff has been generously compensated for his services in assessing taxes in Brazoria County for said years.”

The court sustained defendants’ general and special exceptions to the plaintiff’s petition, and, upon plaintiff’s refusal to amend, the court rendered judgment dismissing plaintiff’s suit. R. G. Burkhart has appealed.

Appellant insists that the judgment should be reversed, in that the court erred in sustaining defendants’ exceptions, general and special, because article 3937, Revised Civil Statutes of 1925, fixing the compensation of county assessors, repeals that portion of section 29 of article 8263 of said statutes upon which the trial court relied in support of the judgment rendered, the pertinent part of which reads as follows: “The tax assessors shall receive for such services such compensation as the said navigation and canal commissioners shall deem proper; provided that said county assessors shall in no event be allowed more than they are now allowed for like services.”

We overrule appellant's contention. The provisions of article 3937, in our opinion, do not expressly nor impliedly repeal section 29 of the Navigation District Statute, nor any other part thereof. It makes no reference whatever to section 29, or any part of the Navigation Act. Article 3937 is an amendment of article 3871, Rev. St. 1911, and is a part of the general statute fixing generally the fees to be paid officers. It does not by its express or implied terms include navigation districts. It makes no reference to such districts. It fixes the compensation for assessing the taxes in drainage and road districts and other political subdivisions of the county in which said districts and subdivisions lie. The Navigation Act does not confine navigation districts to a county. They are not necessarily a district or subdivision of a county. They may or may not include within their boundaries and limits the whole or parts of two counties, villages, towns, cities, roacl districts, drainage districts, and other improvement districts, and municipal corporations of any hind, or of parts thereof. In other words, article 3937 is a general statute, whereas section 29 of the navigation district act is a part of a particular and complete act of the Legis- ’ lature in reference to the creation, government, and operation of navigation districts alone. Under the provisions of said act, a navigation district may include as much as two counties and embrace and duplicate every sort of municipal and political subdivision of the county or counties. The wisdom of placing the authority in the navigation and canal commissioners to fix the compensation of the treasurer or treasurers of such navigation district is at once apparent, as the circumstances of each particular district may be entirely different, and it is wisely left to the discretion of the navigation and canal commissioners to fix the compensation of the assessor for such services.

. The Navigation Act authorizes the creation of navigation districts for the purpose of mating improvements for the navigation of inland and coastal waters, for the preservation and conservation of inland and coastal waters for navigation, and for other purposes in aid of navigation, etc. Such act confers upon the navigation and canal commissioners authority to exercise such rights, privileges, and functions as may be essential to the accomplishment of the purposes of its creation, thus clearly showing that navigation districts under the act are more comprehensive than mere political subdivisions of the county and not necessarily included within such term.

Article 3937, chapter 150, and the Navigation Act, chapter 5, were enacted at the same session of the same Legislature and were carried forward in the codification of the laws- of Texas for 1925 at the same session of the Legislature. The Codification Act became effective September 1, 1925, which was subsequent to the time article 3937 became effective.

The doctrine that implied repeals are not favored is an established rule in the construction of statutes, and, likewise, a subsequent act, treating a subject in general terms, and not expressly contradicting the provisions of a prior special statute, is not to be considered as intended to affect the more particular and specific provisions of the earlier act, unless it is absolutely necessary so to construe it in order to give its words any meaning at all.

In Cole v. State ex rel. Cobolini, 106 Tex. 472, 170 S. W. 1036, 1037, the Supreme Court, speaking through Justice Phillips, uses this language:

“Repeals by implication are never favored. Laws are enacted with a view of their permanence, and it is to be supposed that a purpose on the part of the lawmaking body to abrogate them will be given unequivocal expression. Knowledge of an existing law relating to the same subject is likewise attributed to the Legislature in the enactment of a subsequent statute; and when the later act is silent as to ⅛⅞ older law, the presumption is that its continued operation was intended, unless they present a contradiction so positive that the purpose to repeal is manifest. To avoid a state of conflict an implied repeal results where the two acts are in such opposition. But the antagonism must be absolute— so pronounced that both cannot stand.

“Though they may seem to be repugnant, if it is possible to fairly reconcile them, such is the duty of the court. A construction will be sought which harmonizes them and leaves both in concurrent operation, rather than destroys one of them. If the later statute reasonably admits of a construction which will allow effect to the older law and still leave an ample field for its own operation, a total repugnance cannot be said to exist, and therefore an implied repeal does not result, since in such case both may stand and perform a distinct office. Especially will this construction be adopted where the older law is particular and expressed in negative terms, and the later statute is general in its nature. In such instances that to which the older law distinctly applied its negative provisions will be regarded as excepted from the operation of the more general statute. These are but the familiar rules of construction to be applied where the implied repeal of a law is involved.”

This case is cited with approval in Fortinberry v. State (Tex. Com. App.) 283 S. W. 146, where many authorities are reviewed.

There is no inconsistency and no repugnan-cy between article 3937 and section 29 of the Navigation Act. The one applies generally within its scope, which is broad in its application, and the other applies particularly to navigation districts, which may include as much as two counties and which are controlled by conditions peculiar to them. Both acts were passed by the same session of the Legislature, and both brought forward in the compiled statutes of the same Legislature, clearly demonstrating a legislative intent that both acts should be preserved.

Appellant contends that so much of the Navigation Act as provides that the tax assessor shall receive for his services in assessing property within a navigation district such compensation as the navigation and canal commissioners shall deem proper is unconstitutional and void; that so much thereof as provides for the forfeiture by the assessor of his office, in the event he should fail to assess the property of the navigation district, when ordered so to do by the commissioners’ court, is unconstitutional and void; and that section 29 of said Navigation Act is unconstitutional and void, in that it provides for the taking and applying to public use property of an assessor without his consent.

We overrule all of such contentions.

The Constitution of Texas, article 3, § 44, provides that the Legislature shall provide by law for compensation of public officials, and the provisions of section 29 of the navigation acts, authorizing the navigation and canal commissioners to fix the compensation of the assessor for assessing navigation district taxes at an amount which they deem proper, but in no event to exceed the amount now allowed the assessor for like services, does not grant to them judicial or legislative authority, but only administrative and ministerial duties in carrying out the provisions of said act.

There is no merit in the contention that the act provides for the taking of the property of an assessor and applying it to public use without the consent of such assessor. Appellant, as assessor, has no property rights in the office in excess of the compensation provided for him by law, whether such compensation be fixed under the provisions of article 3937, an act providing generally for the fees of officers, or under the provisions of section 29 of the Navigation Act, which applies particularly to navigation districts.

We have reached the conclusion that the judgment should be affirmed, and it is so ordered.

Affirmed.