author: CLAY, Commissioner. MONTGOMERY, Judge

text:
    Tom RANEY et al., Appellants, v. Thelma STOVALL, Treasurer, Commonwealth of Kentucky. Appellee.
    Court of Appeals of Kentucky.
    Oct. 26, 1962.

      Louis Cox, William A. Logan, Hazelrigg & Cox, Frankfort, J.' E. Sanders, Pikeville, for appellant Raney.
    Hunter B.. Whitesell, Asst. Atty. Gen.y Frankfort, for appellant Matthews.
    Thomas F. Marshall, Funk, Chancellor & Marshall, Frankfort, for appellee.
   CLAY, Commissioner.

This declaratory judgment action presents two significant questions. The first is whether the State Treasurer may question the constitutional legality of a warrant issued by the Commissioner of Finance. If she may properly do so, the ultimate issue is whether she must honor such warrants drawn in favor of the plaintiff Raney for compensation and allowances due him as a state senator. These questions arise under the following circumstances.

Raney was duly elected to the Senate in November 1959 for a four year term. His qualifications were accepted and approved by that body at the 1960 session of the General Assembly and he served throughout the session.

On April 1, 1960, he was appointed a deputy sheriff in Pike County and performed the duties of that office through December 31, 1961. Under a permissible construction of the terms of section 165 of the Kentucky Constitution and KRS 61.080 and 61.090, the office of senator and deputy sheriff are incompatible and the acceptance of the second office vacates the first. However, on February 13, 1962, being faced with this question, the Senate adopted a resolution recognizing Raney as a duly qualified senator.

The Commissioner of Finance in due course issued warrants covering compensation and allowances to which plaintiff Raney would be entitled if he was a de jure senator during a part of the period he held both offices (January 29, 1962 to March 16, 1962). The Treasurer refused to honor these warrants on the ground that as a matter of law plaintiff Raney had vacated the office of state senator on April 1, 1960, and payment of the claim would be illegal. This suit was then brought by Raney and the Commissioner of Finance against the Treasurer to require her to pay the claim, and to enjoin her from refusing to issue checks upon warrants properly presented by the Department of Finance. The Chancellor adjudged (1) the Treasurer may question the constitutional legality of claims against the Commonwealth, and (2) plaintiff Raney was not entitled to the compensation and allowances represented by the warrants involved in this controversy.

It is appellants’ contention that the Treasurer must honor any warrant issued by the Department of Finance. The basis of this argument is that pertinent statutes vest the Department with exclusive authority to determine the propriety and legality of claims against the treasury, and require the Treasurer as a ministerial officer to pay them absolutely on the Department’s order.

The statutory law neither specifically grants to the Department of Finance the exclusive power contended for nor denies the Treasurer a right to question claims. While the Commissioner of Finance is designated the chief financial officer of the State with the duty to protect its financial interests (KRS 42.020), the only direct powers he is given with respect to claims against the State are: (1) to preaudit expenditures (KRS 42.030(e)), and (2) to examine statements of indebtedness, and if found “correct” and there is a sufficient amount to pay the claim in the budget unit against which the claim is chargeable, to issue warrants upon the State Treasurer (KRS 45.-220(1)). There is no provision of the law recognizing the Commissioner of Finance as the final arbiter of the legality of a claim against the Commonwealth.

It is true the Treasurer is directed to accept warrants drawn by the Department of Finance (KRS 41.150) ; shall not withdraw public moneys except on such warrants (KRS 41.110) ; and such warrants constitute authority for the disbursement of public money (KRS 41.120). To the extent the Department of Finance is authorized to certify the correctness of a claim from an accounting and bookkeeping standpoint, the warrant must be honored by the Treasurer-However, the specific right to question the validity of a claim on constitutional grounds is not reposed by statute in either the Department of Finance or the State Treasurer. Such right of either or both stems from the general provisions of both the Constitution and the statutes which fix a basic public policy with respect to the expenditure of public funds.

The first sentence of section 230 of the Constitution provides in part: “No money shall be drawn from the State Treasury, except in pursuance of appropriations made by law; * * Similarly KRS 44.010 recognizes proper claims upon the State Treasurer are those “authorized by law” and KRS 41.130(2) prohibits the issuance of a warrant unless the money to pay it has been “appropriated by law”. Since the Constitution is the supreme law of the Commonwealth (see Rhea v. Newman, 153 Ky. 604, 156 S.W. 154, 44 L.R.A.,N.S., 989), the expenditure of public funds in violation thereof is forbidden.

As an original proposition, it would be curious indeed if a constitutional officer who is immediately in charge of the receipt and disbursement of all funds of the Commonwealth would be powerless to question the constitutional validity of a claim against it. While appellants contend that by virtue of a 1936 reorganization act the Treasurer was effectively stripped of everything but ministerial duties, we find nothing in the statutes that extinguishes his obligation to function under the Constitution and in conformity with his constitutional oath of office (section 228 of that instrument).

This Court has consistently recognized that public officers charged with the disbursement of public funds may question the validity of a claim on the ground that it violates the Constitution. Norman, State Auditor v. Kentucky Board of Managers of World’s Columbian Exposition, 93 Ky. 537, 20 S.W. 901; Rhea v. Newman, 153 Ky. 604, 156 S.W. 154, 44 L.R.A.,N.S., 989; Metcalf v. Howard, 304 Ky. 498, 201 S.W.2d 197; Reeves v. Gerard, Ky., 255 S.W.2d 21.

Appellants contend the Treasurer has only ministerial duties to perform, that she would not be liable on her bond in honoring these warrants, and that the record fails to show she was acting on the advice of the Attorney General. (Though not shown by the record, apparently the Attorney General had advised her that the offices were incompatible.) Assuming without deciding that these premises are correct, they do not resolve the basic issue. We are not here concerned with the characterization of the nature of the Treasurer’s duties, nor with protecting her from liability, nor with the source of her legal advice. We are concerned with protecting the public from the illegal expenditure of public funds.

The Constitution fixes a policy with respect to public expenditures which surely must infuse the code of conduct of constitutional officers, particularly those charged with control of public funds. The designation by the legislature of certain specific duties and responsibilities of the Treasurer (under section 93 of the Constitution) did not extinguish the implied obligations of the office. In our opinion the Treasurer may properly, acting in good faith, upon a substantial constitutional ground, raise a question for judicial determination concerning the legality of a claim upon the treasury. The Chancellor correctly adjudged that phase of the controversy.

This brings us to the ultimate question of whether the Treasurer must honor the warrants of the Department of Finance drawn in favor of plaintiff Raney. For the purpose of outlining this controversy earlier in the opinion, we ventured an interpretation of the Constitution and the statutes concerning the incompatibility of the offices of senator and deputy sheriff. It is appellants’ contention that we are without authority to make such a judicial determination because the Constitution places in another department of government the absolute and final authority to decide the issue.

Section 38 of our Constitution provides in part:

“Each house of the General Assembly shall judge of the qualifications * * * of its members * *

The question before us has not heretofore been presented or decided in Kentucky. While the incompatibility of offices has been considered in a number of cases, and it has been held that a vacancy in an earlier office occurs when an incompatible office is subsequently accepted, we have not had a case involving a determination of that question by a legislative body with respect to one of its own members. We may even assume, as was stated in Meagher v. Howell, 171 Ky. 238, 188 S.W. 373, that from a judicial standpoint the acceptance of an incompatible office would create a vacancy in the office of the Senate. The whole point of appellants’ argument is that a branch of the legislature, vested with full authority by the Constitution, has made a conclusive and contrary determination with which we are powerless to interfere.

This problem has been considered in other jurisdictions. Upon what we consider sound reasoning, authoritative adjudications are to the effect that the right of a legislative body to judge the qualifications of its members includes the right to decide finally whether or not one of them has become disqualified during his term of office,-and this decision is not subject to court review.

Substantially the identical situation was presented in State ex rel. Biggs v. Corley, 6 W.W.Harr. 135, 36 Del. 135, 172 A. 415. In that case three duly elected senators had subsequently accepted incompatible offices, but the Senate by resolution declared no vacancies existed and the three were accepted as fully qualified. The provisions of the Delaware Constitution are practically the same as ours with respect to both the authority of the legislature and the incompatibility of offices. It was held that since the sole jurisdiction to determine the qualifications of its members was placed by the Delaware Constitution in the Senate, the courts had no power to pass upon the question of whether or not the acceptance of another office disqualified the member. The court said (page 420 A.) :

“When a question involving an implied resignation of one office (it not being that of a member of a legislature), by the acceptance of another office, is presented to the courts for decision, the courts have jurisdiction in the full and complete sense of having power and authority to decide and to enforce the execution of what is decreed, and no difficulty arises. But, . when the first office is that of a representative or senator in the General. Assembly, and the question arises whether the acceptance of another office operates as an implied resignation of the first, * * * the Courts, or- , dinarily constituted, may not proceed, to hear and adjudicate, for they are not the tribunals provided by the Constitution for the determination of such question. They have no jurisdiction for the reason that another and different tribunal possesses the sole jurisdiction, that is, the senate or the house as the case may be, under that provi- , sion. of the- Constitution which gives to each house of the legislature thé right,' power .and. authority to-.judge of. the' elections, returns and qualifications of its own members. This is necessarily so, for the power and authority must reside somewhere, the departments of government must be separate and distinct, free and independent, and, while the courts will jealously guard its. powers and jurisdictions, they will be careful not to infringe upon the powers, prerogatives and jurisdictions of the legislative department.”

In People ex rel. Drake v. Mahaney, 13 Mich. 481, nine members of the House of Representatives were elected under a stat- ■ ute subsequently declared unconstitutional. The legislative body accepted those members as duly elected .and qualified, and it was held that the courts had no authority to review this determination. In that case it was pointed out that the legislature arid the courts might have conflicting views as to the qualifications of a member of that body but that the exclusive power to make the final determination had been lodged in the legislature by the Constitution. It was also stated in that opinion tha.t. it made no difference whether the question passed upon by the legislative body was a question of law or fact.

In State ex rel. Martin v. Gilmore, 20 Kan. 551, the question was whether or not the court had- authority to determine that a member of the legislature had forfeited his office by reason of a violation of a statute. Therein the court said (page 554):

“The constitution declares, article 2, section 8, that ‘Each house shall be ■ judge of the elections,' returns, and qualifications of its own members.’ This is a grant of power, and constitutes each house the ultimate tribunal as to the qualifications of its own members. * * * And this power is not exhausted when once it has been exercised, and a member admitted to his . seat. It is a continuous power, and runs through the entire term. At 'any . .time, and at all times during the terms of office, each house is empowered to, pass upon the present qualifications of its own members. By section 5 of the ■ same article, acceptance of a federal ' office vacates a member’s seat. He ceases to be qualified, and of this the house is the judge. If it ousts a member on the claim that he has accepted a federal office, no court or other tribunal can reinstate him. If it refuses to oust a member, his seat is beyond judicial challenge.” (Our emphasis.)

This Court has recognized in a case involving the Constitution of the United States and the Federal Congress that the vesting of certain powers in a legislative body may constitute exclusive power to pass upon the qualifications of its members, thereby depriving the court of authority to adjudicate on that subject. Burchell v. State Board of Election Commissioners, 252 Ky. 823, 68 S.W.2d 427.

It is contended by appellee that, assuming the Senate has the exclusive right to pass upon the qualifications of its members, the term “qualifications” is confined to those specified in section 32 of the Constitution (which relates to citizenship, age and residence). It is said that those matters are not in controversy and that what is here involved is a subsequent disqualification under another section of the Constitution. This limited view of the power of the legislature is not consistent with either reason or authority.

In determining the question, it is important to consider the reason and justification for this constitutional scheme. The work of a legislative body requires the active and continuous participation of its members, particularly when in session. There is a real necessity for the summary determination of their eligibility and qualifications. If the continuing qualifications of those members were subject to litigation in the courts, particularly during a session and particularly in view of unavoidable judicial delay, the conduct of public business could be completely disrupted.

We think this consideration has a significant bearing upon the power granted the legislature by section -38 of the Constitution. If the'power'were limited to the qualifications specified in section 32 thereof, it would be exhausted as soon as the membership of each house was accepted at the beginning of each term. At any given time thereafter, due to disqualifying events, there could exist extreme uncertainty with respect to the validity of votes cast by questioned members. The most practical method of dispelling such possible recurring confusion is by summary proceedings within the department so vitally affected.

The broad scope of the term “qualifications” has been accepted in decided cases. In Commonwealth v. Jones, 10 Bush. 725, 73 Ky. 725, 745, it was stated that this term “implies not only the presence of every requisite which the constitution demands, but also the absence of every disqualification which it imposes.” Continuing qualifications are just as important as those initially required. If the power were limited as appellee contends, section 38 of the Constitution would not fulfill its apparent and pragmatic purpose. As was so clearly pointed out in State ex rel. Martin v. Gilmore, 20 Kan. 551, from which we have quoted above, the alleged disqualification in this case is precisely the type of question over which the legislature should have continuing jurisdiction. We conclude the Senate properly acted within the scope of the authority vested by section 38 of the Constitution.

Appellee suggests the action of the Senate with respect to Raney constituted such a clear violation of the Constitution that the courts should rectify the error. However, the fact that the legislature may make a wrong decision is no reason why the judiciary should invade what has been designated as the exclusive domain of another department of government. See Taylor v. Beckham, 108 Ky. 278, 56 S.W. 177, 49 L.R.A. 258. We must assume the Senate in good faith will not knowingly permit violations of other constitutional provisions. With respect to this subject matter, the people have reposed that responsibility in the legislature. The courts are without jurisdiction to review its solemn determination.

It is our opinion that appellant Raney is entitled to the compensation and allowances withheld by the appellee and the warrant issued by the Department of Finance must be honored. To this extent the judgment must be reversed.

The judgment is affirmed in part and reversed in part, with directions to amend the judgment consistent with this opinion.

MONTGOMERY, J., dissenting.

MONTGOMERY, Judge

(dissenting).

I respectfully dissent from so much of the majority opinion as holds that the state treasurer may question a claim as being unconstitutional. The majority opinion holds that such authority is implied. My objection is two-fold: (1) The constitutional section relied on does not support the implication; and (2) the Constitution expressly provides that the duties of the treasurer shall be fixed by statute and have so been fixed.

The fallacy in the implication is that Section 230 of the Constitution, relied on, deals with a prohibition against the payment of money from the Treasury unless appropriated. This authorizes the treasurer to question a claim on the ground that money has not been appropriated for it. It does not authorize the treasurer to question a claim as being constitutionally invalid.

This conclusion is supported by Sections 91. and 93 of the Constitution concerning the treasurer and other public officers and providing that their “duties and responsibilities * * * shall be prescribed by law.” The inclusion of the same delegation. of power to the General Assembly twice in the Constitution is a clear indication that the duties and responsibilities of the treasurer and such other named officers should be prescribed by the General Assembly.

This is exactly the conclusion reached in Ferguson v. Chandler, 266 Ky. 694, 99 S.W.2d 732, when the same constitutional sections were considered with reference to the duties and responsibilities of the commissioner of agriculture, an officer named with the treasurer in Sections 91 and 93. In construing the reorganization act of 1934 concerning the duties of the commissioner of agriculture, this Court held that Section 91 of the Constitution did not define the duties of the commissioner •but expressly conferred this privilege upon the General Assembly, and that the statute enacted by the General Assembly should be looked to in order to ascertain the commissioner’s duties and responsibilities. The Ferguson v. Chandler decision would seem decisive of the question here. It is neither discussed, distinguished, nor overruled in the majority opinion. For the same result concerning the county treasurer, see Breathitt County v. Cockrell, 250 Ky. 743, 63 S.W.2d 920, 92 A.L.R. 626.

The conclusion that the Ferguson v. Chandler decision is sound and should control here is fortified by reference to the various subsequent reorganization statutes which make the commissioner of finance the chief financial officer of the state, charged with protecting the financial interest of the state and expressly directing the payments of claims by the treasurer on warrants from the commissioner. Carroll’s Kentucky Statutes, Section 4688; KRS 41.120, 41.150(1), and 41.160. KRS 41.120 expressly provides that the warrant of the commissioner of finance shall “constitute full and sufficient authority to the Treasurer for the disbursement of public money in the amount set forth.”

It, therefore, is concluded that the treasurer’s duties and responsibilities with respect to processing claims are purely ministerial so long as there are appropriated funds, and that the treasurer had no right to question the claim presented on constitutional grounds.


source: Caselaw Access Project

author: SMITH, Justice.

license: Public Domain

text:
    RAILROAD COMMISSION OF TEXAS et al., Appellants, v. Dorothy N. MANZIEL et al., Appellees.
    No. A-8779.
    Supreme Court of Texas.
    Oct. 17, 1962.
    Rehearing Denied Nov. 21, 1962.

      Hart & Hart, Austin, Will Wilson, Atty. Gen., Austin, Linward Shivers and H. Grady Chandler, Assts. Atty. Gen., John E. Taylor, Marshall, for appellants.
    Powell, Rauhut, McGinnis, Reavley & Lochridge, Austin, Chilcoate & Clark, Tyler, for appellees.
   SMITH, Justice.

This direct appeal is the result of a suit filed by the appellees, Dorothy N. Manziel et al. in the 126th District Court of Travis County, Texas, to set aside and cancel an order of the Railroad Commission of December 12, 1960, permitting the appellants, the Whelan Brothers, to drill and inject water in their Eldridge #11 well located at an irregular spacing on the Whelan Brothers-Vickie Lynn unit 206 feet south of the boundary of the Manziel Estate-Mathis lease in the Vickie Lynn Field, Marion County, Texas. The Railroad Commission was the original defendant in this action; the Whelan Brothers intervened and aligned themselves in defense of the Railroad Commission’s order. For convenience the parties will hereinafter be referred to as the Whelans, the Manziels and the Commission.

In addition to alleging irregularities in connection with the Whelans’ application for the permit, the Manziels attacked the Commission’s order on the grounds that it would cause waste, that it would result in the confiscation of the Manziels’ property, that the permit was not necessary to protect the correlative rights of the Whelans’, and that the order was in violation of the Commission’s own rules.

After trial, the District Court entered a judgment cancelling the order allowing the Whelans to inject water at the irregular location, enjoining its enforcement and enjoining the Whelans from injecting water in their-Eldridge #11 well under said order. The judgment of the District Court has been brought to this court for review under Art. 1738a, Vernon’s Texas Civil Statutes, and Rule 499-a, Texas Rules of Civil Procedure.

The Vickie Lynn Field was discovered in February, 1956, and field rules were established by the Commission, effective August 20, 1956. The rules provide for 80-acre production units with the wells to be located on that unit 660 feet from lease lines. A well located 660 feet and more from lease lines is referred to as being at a regular location while a well located at a less distance is said to be at an irregular location. All the wells in the field were drilled according to this plan except the Manziel-Mathis lease and the well located thereon is spaced 330 feet north of the adjoining Whelan unit.

At the time of the trial, the Vickie Lynn Field was divided into three separate and distinct areas. The Whelans’ property is referred to as the Whelan Brothers-Vickie Lynn Unit, and includes about 900 productive acres on which 11 producing wells have been drilled. The Manziels are the only other operators in the field and they control two units, the largest of which is referred to as the Manziel Estate-Whelan lease; it comprises about 1,135 producing acres and has 10 wells. The other unit is made up of three leases sometimes collectively referred to as the Hollandsworth leases (separately known as the Mathis, the Combs, and the Coleman leases), which were not acquired by the Manziels- until 1960. The Mathis lease contains 40.36 acres, with one well; and the Combs and Coleman leases each include 80 acres, with one well on each lease. For a better understanding of the relative size and location of each of the units involved, a plat drawn from Exhibit “A” is attached on opposite page.

The field has not been unitized as a whole, but the Whelans have unitized all of the properties of which they are lessees; however, no unitization agreement has been made between the Whelans and the Man-ziels. The Manziels have not unitized all of the properties under their control, and the situation in the Vickie Lynn Field is further complicated by the fact that the Manziels have a waterflood program on their Whelan lease, and have no such program on their Hollandsworth leases.

The Vickie Lynn Field is in a solution gas drive reservoir, and it is estimated that between 816 barrels to 824 barrels of oil per acre foot were originally in place beneath the field. As production was carried out, the resultant displacement and the failure to maintain adequate pressure has caused the original pressure to drop from 2650 pounds per square inch to the point where it is now of an average of 371 pounds per square inch. The present low pressure in the reservoir means that the remaining oil is “dead,” and from the .record it appears that the best means of recovery thereof is by the secondary method of waterflooding.

The Hollandsworth leases of the Manziels are located in the northwestern part of the field, and the result of the production from these leases and the effect of the existing water injection programs on the Manziel estate-Whelan lease and on the Whelan Brothers-Vickie Lynn Unit is to push the oil in a northwesterly direction to the Hol-landsworth leases. The purpose o-f the Whelans Eldridge #11 well is to increase reservoir pressure and to minimize the amount of oil which is pushed from their unit, across lease lines, to the Hollands-worth leases, and particularly the Manziel Estate-Mathis lease. Of the Hollandsworth leases, the Manziel Estate-Mathis lease is in the closest proximity to the operations of the Eldridge #11 well of the Whelans, and if the operations can be held valid in relation to the Mathis lease they are valid as to the rest. It is the Whelans’ contention that in a situation such as exists in this field their waterflood program must have the dual purpose of efficient recovery of oil from producing wells on their property and the prevention, so far as is possible, of the loss of oil from beneath their lease due to the pushing or drainage of oil to other properties.

If all the oil here in question were located under one tract, it is established that the most recovery from the entire field, would be through a plan of peripheral flooding around the edges of the field, thus sweeping the oil from the south and southwest down-structure to the north and northwest. In regard to the Whelan Brothers-Vickie Lynn Unit it was shown that the flooding pattern was planned so recovery of an estimated 930,000 barrels of oil from under that lease could be made. The plan was not set up out of a consideration of Í" what pattern would result in the most recovery from the entire field; but rather a plan was used that would result in the most recovery from that one lease.

Water injected into an oil reservoir generally spreads out radially from the injection well bore, and it is impossible to restrict the advance of the water to lease lines. For example, water injected into the Man-ziel Estate #8 well has already crossed the boundary of the Whelans’ unit and as more water is injected further encroachment will take place until finally the Whelans’ Craver \ well is drowned out. It is just such an en- / croachment upon the Mathis lease by water injected in the Whelans’ unit that the Manziels seek to prevent.

Regardless of whether the Eldridge #11 well is located at a regular or irregular location any water injection program on the Whelans’ unit will cause oil to be pushed from their unit to the Hollandsworth leases. However, it is estimated that-four-times as" much of the oil~T5resently beneath the Whelans’ lease will be pushed to the Hol-landsworth leases if the injection well is located 660 feet from the lease line as opposed to a 206-foot location. On the other hand, the Manziels-Mathis well would have an estimated life of 32 months if the Eldridge #11 well is placed at a regular location 660 feet from lease lines while if the irregular spacing is used the life of the well would be reduced to 3½ to 8 months depending on the rate of production and injection of the respective wells.

During the primary stage of the field, the'' Mathis lease enjoyed a great drainage advantage as is shown by the following pro-, duction figures:

Now, however, the field is in a secondary Eldridge #11 well at a 206-foot location recovery stage, ánd with the location of the these additional figures are relevant:

The Commission takes the position that it must have the authority to grant the location of water injection wells to prevent drainage and to protect correlative rights in order to encourage operators to initiate secondary recovery programs. The Commission contends that there would be no incentive to engage in this method of increasing the recovery of oil unless the operator is allowed to use effective methods to prevent oil from being pushed from beneath his property.

The Manziels concede that the Whelans have the .right to protect their leases from drainage, and that the Commission has the power to issue reasonable orders to aid such a purpose if it is found to be necessary to drill the well at an irregular location in order to prevent waste or to prevent confiscation of the Whelans’ property. However, after conceding this right and power, the Manziels assert that the Commission may not authorize, or the Whelans carry out, a trespass by injected water that will result in the premature destruction of their producing Mathis well. It is asserted that such authorization is violative of Art. 6029(4) Vernon’s Annotated Civil Statutes which provides that the Commission is to require wells to be drilled and operated in such a manner as to prevent injury to adjoining property. They further assert that the order permitting the water injection into the irregularly located Eldridge #11 well of the Whelans deprives them of their property without due process of law.

This court has jurisdiction over questions of law presented in a direct appeal from a trial court on the issue of the validity of the orders of the Railroad Commission when they have arisen through the trial court granting or denying a permanent injunction in connection with such order. Art. 1738a Vernon’s Annotated Civil Statutes; Rule 499-a Texas Rules of Civil Procedure; Railroad Commission of Texas v. Shell Oil Co., Inc., 146 Tex. 286, 206 S.W.2d 235 (1947).

Regardless of the other questions that may appear, as to matters within the discretion of the Railroad Commission, the ultimate decision of this court, as to the validity of the Commission’s orders, must turn upon the application of the substantial evidence rule. Of course, we recognize that it is not the province of this court to substitute itself for the Commission in determining the wisdom and advisability of the particular order in question, but the Court will sustain the action of the Commission so long as its conclusions are reasonably supported by substantial evidence. See: Railroad Commission v. Sterling Oil and Refining Co., 147 Tex. 547, 218 S.W.2d 415 (1949). The record is to be considered as a whole; and being a question of law, it is for this court to determine what is to constitute such evidence. When the orders are supported by evidence establishing that they are necessary in order to prevent waste or to protect correlative rights, the fact that the application of the order has resulted in economic loss to some does not warrant a finding that there has been a deprivation of property without due process of law.

The Commission’s orders are presumed to be valid, Article 6042, Vernon’s Annotated Civil Statutes, and the burden is cast upon the contestant thereof to show that it is not reasonably supported by substantial evidence. Railroad Commission of Texas v. Magnolia Petroleum Co., 130 Tex. 484, 109 S.W.2d 967 (1937); The Railroad Commission of Texas v. Shell Oil Co., 139 Tex. 66, 161 S.W.2d 1022 (1942). The issue is not whether the Commission came to the proper fact conclusions on the basis of conflicting evidence, but whether it acted arbitrarily and without regard to the facts. Thus, with reference to matters involving the application of a general standard to given facts, the order will be upheld unless the court determines that it is “unreasonable” or “unjust.” See: Garwood, “Some Aspects of the Texas ‘Substantial Evidence’ Rule,” 33 Tex.Law Rev. 717 (1955).

The Commission has adopted no field-wide spacing rule for water injection wells, but has made special orders as to each operator desiring to waterflood. On August 15, 1960, over a year after the Manziels had instituted similar operations on their Whe-lan lease, the Whelans were authorized to conduct secondary recovery operations on their Vickie Lynn Unit. The special order provided:

“ * * * that as the pressure maintenance operation progresses, said operators may expand the injection facilities and may use for injection purposes additional wells * * *; and provided, further, that no injection well location will be approved at or nearer to a lease boundary line than a regular location (660 feet) for producing wells projected to this reservoir unless and until the operators furnish waivers from any such offsetting operators or until evidence that such offsetting operator has been notified and that no protest is made to the Commission concerning such location within ten days after such request for approval of the injection well location is received by the Commission’s Engineering Department.”

From the wording of this order we interpret it to be the intention of the Commission to authorize the Whelans to inject water in irregularly located wells if the Manziels waived objection; but if the Manziels did not waive, then the Commission, as was done, would conduct a hearing to see whether, under the facts shown, the proposed exception should be granted.

The parties agree that the Commission has the power to grant exception to the order if the evidence establishes that it is necessary to drill a well at an irregular location in' order to prevent' waste or to prevent confiscation of property. If the right to the exception is supported by substantial evidence, the exact location of the well is in the Commission’s sound discretion. See: Railroad Commission of Texas v. The Texas Company, Tex.Civ.App. (1957), 298 S.W.2d 666, wr. ref., n. r. e.; 58 C.J.S. Mines and Minerals § 137, p. 230. Thus, a principal issue presented for determination by this court is whether there is substantial evidence in the record which establishes that it is necessary for the injection well to be placed at an irregular location to' prevent either the confiscation of the Whelans’ property or waste in the field. However, before discussing this issue, we deem it appropriate to dispose of other issues raised on this appeal.

Trespass

The Manziels pleaded that the injection of salt water by the Whelans in the Eldridge #11 well will cause damage to their producing wells, and will result in loss and injury to their oil and gas interests due to premature flooding. They assert, and we agree, that under our liberal rules of pleading, this wording is sufficient to give rise to the issue of trespass in considering the status of encroaching secondary recovery waters.

The subsurface invasion of adjoining mineral estates by injected salt water of a secondary recovery project is to be expected, and in the case at bar we are not confronted with the tort aspects of such practices. Neither is the question raised as to whether the Commission’s authorization of such operations throws a protective cloak around the injecting operator who might otherwise be subjected to the risks of liability for actual damages to the adjoining property; rather we are faced with an issue of whether a trespass' is committed when secondary recovery waters from an authorized secondary recovery project cross lease lines.

In seeking to answer this question, we have examined cases covering almost every aspect of the oil and gas industry in this state where the plaintiff has gone into court against an operator on adjoining property who has caused some type of damage to or encroachment in the plaintiff’s subsurface estate. In only one situation have we found an injunction granted on the applied theory of trespass. With one exception, all others have involved questions of liability for negligence with which we are not here concerned.

To constitute trespass there must he some physical entry upon the land by some “thing,” Gregg v. Delhi-Taylor Oil Corp., Tex., 344 S.W.2d 411 (1961) ; but is injected water that crosses lease lines from an authorized secondary project the type of “thing” that may be said to render the adjoining operator guilty of trespass ? It was stated in the Gregg case, where this question was anticipated but not decided:

“We are advised by an amicus curiae that the Commission has promulgated rules or orders which might authorize, or result in, the invasion of the subsurface of the land of others. Our attention is called to secondary recovery operations involving water or gas injection, waterflooding, the injection and storage of salt water, and the recycling of gas. We have heretofore indicated that no rules of the Commission are involved in these Delhi-Taylor cases. The validity and reasonableness of the rules and orders involved in those operations may be passed upon when and if they reach this court.” (emphasis added)

A problem analogous to the situation that confronts this court is found in instances where gas is produced, the gasoline content removed therefrom, and the dry gas reinjected into the original reservoir from whence it was produced to preserve bottom-hole pressure; the process thus displacing the more valuable wet gas under adjoining leases with the dry reinjected gas. In Corzelius v. Harrell, 143 Tex. 509, 186 S.W.2d 961, (1945), a person so rein-jecting complained that the Commission’s order did not reasonably adjust correlative rights. Apparently both parties assumed that when the substances were reinjected, the rules which were applicable before the original capture again applied. See: Note 1, Oil and Gas Reporter, 1171; Williams and Meyers: Oil and Gas Law, § 204.5, footnote 1.

In considering the legal consequences of the injection of secondary recovery forces mto the subsurface structures, one authority, Williams and Meyers, supra, has stated:

“What may be called a ‘negative rule of capture’ appears to be developing. Just as under the rule of capture a land owner may capture such oil or gas as will migrate from adjoining premises to a well bottomed on his own land, so also may he inject into a formation substances which may migrate through the structure to the land of others, even if it thus results in the displacement under such land of more valuable with less valuable substances (e. g., the displacement of wet gas by dry gas).”

Secondary recovery operations are carried on to increase the ultimate recovery of oil and gas, and it is established that pressure maintenance projects will result in more recovery than was obtained by primary methods. It cannot be disputed that such operations should be encouraged, for as the pressure behind the primary production dissipates, the greater is the public necessity for applying secondary recovery forces. It is obvious that secondary recovery programs could not and would not be conducted if any adjoining operator ■could stop the project on the ground of subsurface trespass. As is pointed out by amicus curiae, if the Manziels’ theory of subsurface trespass be accepted, the injection of salt water in the East Texas field has caused subsurface trespasses of the greatest magnitude.

The orthodox rules and principles applied by the courts as regards surface invasions of land may not be appropriately applied to subsurface invasions as arise out of the secondary recovery of natural resources. If the intrusions of salt water are to be regarded as trespassory in character, then under common notions of surface invasions, the justifying public policy considerations behind secondary recovery operations could not be reached in considering the validity and reasonableness of such operations. See: Keeton and Jones: “Tort Liability and the Oil and Gas Industry II,” 39 Tex. Law Rev. 253 at p. 268. Certainly, it is relevant to consider and weigh the interests of society and the oil and gas industry as a-whole against the interests of the individual operator who is damaged; and if the authorized activities in an adjoining secondary recovery unit are found to be based on some substantial, justifying occasion, then this court should sustain their validity.

We conclude that if, in the valid exercise of its authority to prevent waste, protect correlative rights, or in the exercise of other powers within its jurisdiction, the Commission authorizes secondary recovery projects, a trespass does not occur when the injected, secondary recovery forces move across lease lines, and the operations are not subject to an injunction on that basis. The technical rules of trespass have no place in the consideration of the validity of the orders of the Commission.

The Statutes

The Manziels further assert that the Commission, in authorizing the irregular spacing of the Eldridge #11 well, has violated the legislative command of Article 6029(4) that wells shall be operated in such manner as to prevent injury to adjoining property. However, they would not make the same objection if the well in question was in a regular location. Under the statute, secondary recovery operations need not be field wide, but may be ■conducted in one or more but less than all of the units of the reservoir. Such operations are primarily concerned with increasing the ultimate recovery of oil and gas and the prevention of waste. In any case in which secondary recovery procedures are used on one tract of a non-unitized field, it can be expected that eventually there will be a subsurface invasion of adjacent properties. If such operations are to have optimum success there is no way to prevent the eventual flooding of every well in the field. Unquestionably, the legislature was fully cognizant of this fact when it enacted Article 6008b, Vernon’s Annotated Civil Statutes, and regardless of what may be said to the contrary, the legislature has made it the policy of this state to encourage the secondary recovery of oil. It is a matter of common knowledge that secondary recovery methods sometimes result in more recovery than the total procured through primary production. Indeed, only 15% of the oil in place can be recovered by primary methods in the case at bar. It is thus concluded that Article 6029(4) has no application to authorized, secondary recovery projects, and that the provisions of Article 6008b control in such instances.

Validity of Order

This being a case of first impression in this state, resort has been made to analogous cases from other jurisdictions. In the cases examined, the issue of trespass was not asserted, and regardless of the fact that there was migration across lease lines, the orders of the Conservation Commissions were upheld if they were supported by substantial evidence, and in the public interest and were necessary to protect correlative rights or to prevent waste in the field.

In Syverson et al. v. North Dakota State Industrial Commission, N.D.Sup.Ct. (1961), 111 N.W.2d 128, all the operators in the field decided to unitize in order to carry out a program of pressure maintenance, by the injection of water. A voluntary agreement was drafted and approved by the Commission, and Amerada Petroleum Corporation was designated as the unit operator. The operators succeeded in obtaining 98% of the mineral and royalty owners to agree thereto. Syverson refused to join on the grounds that he would not be paid enough if he were in the unit. The operators filed an application to authorize the beginning of injections and Syverson contested the granting of the application. The application was granted. The Commission pointed out that Syverson’s interest was not within the area covered by the agreement, and that there was no showing that they would suffer actual damages.

The question presented on appeal was whether Amerada had the right to re-pressure the entire field by water injection into wells covered by the agreement. The court sustained the order of the Commission in finding that there was competent evidence to support the position of the Commission, that the program was in the public interest and was necessary to prevent waste and to protect correlative rights. In holding that regardless of the Syverson’s non-joinder, the Commission had the power to order, and Amerada, the right to carry out, field-wide repressuring the court stated:

“By refusing to join such agreement, however, appellants may not, at the same time prevent other interests in the field from developing adjoining tracts * * *. Whatever the result would be if the appellants could show actual damages, they are certainly not entitled to complain in the absence of such a showing.”

Reed v. Texas Co., (1959), 22 Ill.App.2d 131, 159 N.E.2d 641, is more closely in point. There, three owners of a portion of the reservoir who had not entered into the pressure maintenance project sought an injunction against the Texas Company to require the discontinuance of a field-wide waterflooding program. Reed contended that the operation was forcing oil, to which they had “title,” from under their property. The program involved the placing of injection wells around the periphery and others in the interior area of the pool. The latter were spotted as close to boundaries of leaseholds as was practical, so as to diffuse the pressure and minimize the migration of oil from one leasehold to another. The Chancellor heard testimony concerning the physical condition of the pool and the production history of each well in the field. The prayer for injunction was denied and an appeal followed.

In holding that the denial of the injunction should be sustained the court commented :

“If a minority of one or more persons affected by the operations could prevent it by refusing to join in the agreement, they could then force the others to choose between leaving a large part of the oil underground, or consent to granting the dissidents an unreasonably large percentage of the oil. In other words, the power to block a repressure program by refusing to sign the unitization agreement, would be the power to insist upon unjust enrichment. Surely a court of equity should not support such a rule. (Emphasis added.)
“As to whether the plan in this case was reasonable and fair to all parties, there was a dispute, but the Chancellor heard the testimony, therefore, this court looks only to the question of whether there is substantial evidence to support the result.” (Emphasis added.)

In Jackson v. State Corporation Commission, (1960), 186 Kan. 6, 348 P.2d 613, Tidewater applied to the Kansas Corporation Commission, in 1953, for authority to waterflood a sand formation under eleven sections of land. The application was approved and the pressure maintenance project was begun. After that date, the Jackson Brothers obtained paying primary production by completing 12 oil wells on its lease. Tidewater’s pressure maintenance project and secondary recovery operations had advanced to land adjoining the Jackson Brothers’ lease. Tidewater proposed that the Jackson Brothers join the project, but the Jacksons declined because of their recent beginning of primary recovery. They objected to the continuance of the program, and asked for an immediate order to cease and desist, and a permanent modification of Tidewater’s repressuring authority because Tidewater’s operations were allegedly damaging the Jackson Brothers and causing waste of oil.

In July, 1956, Tidewater had drilled three injection wells in a line north and south about twelve feet from the Jackson Brothers’ boundary and flooded two of their wells within a matter of hours. The Commission issued a temporary cease and desist order and the injection wells were shut down.

One of the issues presented before the Commission was whether Tidewater’s flooding operations were lawful. The Commission decided, and the Supreme Court quoted with approval, that:

“There was no claim or evidence of Tidewater exceeding its authority by its normal pattern of line injection wells used to confine the oil in the lease for production from a central well. One injection well eventually floods every producing well in the reservoir and the legislature was aware of this effect of repressuring when the authorizing statute was passed.”
“Producing wells may be flooded out in repressuring activities but the oil is not lost; it is only pushed forward by the injected water and is still confined, awaiting capture. The Commission’s rule * * * as to correlative rights provides that no one producer can be enriched to the detriment of other producers in a common source of supply by taking an undue proportion of the oil or gas obtainable therefrom, or by causing undue drainage between developed leases. The only way to prevent movement of oil from one lease to another and protect correlative rights is to place input wells along the boundary between.” (Emphasis added.)

The Commission concluded that no waste of natural resources or injury to correlative rights was shown. It dismissed the Jackson Brothers’ complaint, and rescinded the temporary cease and desist order. The Jackson Brothers appealed. The principal matter before the trial court was whether there was substantial evidence to support those findings and decision. The trial court agreed with all the Commission’s findings and with its decision; and the Supreme Court of Kansas affirmed the judgment of the trial court, thereby approving the order of the Commission.

These authorities, in principle, support our view that it was the purpose of the Legislature in adopting our conservation laws that in any oil or gas field the Commission should have power, even the duty, to prevent undue drainage of oil across lease lines. The Commission has two primary duties in the administration and control of our oil and gas industry. It must look to each field as a whole to determine what is necessary to prevent waste while at the same time countering this consideration with a view toward allowing each operator to recover his fair share of the oil in place beneath his land. In carrying out these duties, there has devolved upon the Commission the power to promulgate rules, orders and regulations that control the industry, and such are issued pursuant to the police power of the state, and that power may invade the right of the owner of the land to the oil in place under his land as long as it is based on some justifying occasion, and is not exercised in an unreasonable or arbitrary manner. See : Brown v. Humble Oil and Refining Co., 126 Tex. 269, 83 S.W.2d 935, 87 S.W.2d 1069, 99 A.L.R. 1107, 101 A.L.R. 1393, (1935).

The rules of ownership are of prime importance, but in this consideration the rights of one do not exceed the rights of another. As to oil and gas, the surface proprietors within the field have the coequal right to take from the common source of supply. It follows from the nature of oil and gas that the use by one of his power to seek to convert a part of the common reservoir to actual possession may result in an undue portion being attributed to one of the possessors of the right to the detriment of the other. Hence, it is within the Commission’s power to protect the vested rights of all the collective owners, by securing a just distribution, and to reach the like end by preventing waste.

There is no dispute as to the necessity of injecting larger amounts of water into the reservoir to prevent waste in the field, and from the evidence it appears that regardless of whether the Eldridge #11 well is located at a regular or irregular spacing there will be no appreciable difference in the amount of oil recoverable from the reservoir as a whole. The only dispute is as to where the necessary injection well should be located to serve the dual purpose of facilitating efficient recovery of oil and the protection of the correlative rights of the Whelans. If we are to sustain the validity of the order involved here, it must be on the ground that there is substantial' evidence that the exception is necessary to protect correlative rights and prevent undue drainage.

The evidence shows that the Manziel-Mathis lease comprises 40.36 acres with an-estimated 184 productive acre feet underlying. It is further estimated that approximately 816 to 824 barrels of oil per acre foot were originally in place in the field. The Whelan Brothers’ expert testified that an estimated 118,296 barrels of oil was the-total amount of oil in place under the Mathis tract. It is estimated that only between 17,744 barrels to 22,700 barrels of this total amount was recoverable by primary means. However, the production figures show that as of Sept. 1, 1961, the Mathis well has-actually produced 45,720 barrels of oil.

The Manziels assert that as to the total' field production, the Manziels’ interest has-recovered 64.8% thereof while the Whelan Brothers have recovered only 35.2%; but that with the existing injecting wells recovery from all 'the Manziels’ interest will be reduced to 57% of the total while the Whelans’ will increase their total recovery to 43% from Sept. 1 to abandonment. The Manziels further contend, that if injection is allowed to continue in the Eldridge #11 well, the Whelans will have the advantage-of 51.1% of the total recovery from 1961 to-abandonment, while the Manziels are relegated to recovering only 48.9%. The position of the parties is clarified by showing that of the total productive acre feet, the Manziels control between 53½ to 59% while the Whelans hold from 41 to 46½%. In chart form:

It is established that the effect of the existing pattern of flooding is to cause the remaining oil in the field to be pushed toward the Mathis lease, and due to the high rate of production from the Mathis well, the process is being aided by a great disparity in pressures. According to the testimony of the Whelans’ expert, a large amount of the estimated 118,296 bbls. of oil originally in place under the Mathis lease lies to the north of the Mathis well and will not be produced from under that lease due to pressure differentials. It appears that the pressure is greater in the south, east and west than in the north and northwest. It stands to reason that under these conditions, the drainage from the Whelan Brothers-Vickie Lynn Unit will continue.

The Manziels’ expert witness testified that without the Whelans’ Eldridge #11 well being used for injection purposes, that the primary life of the Mathis well would be from 3 to 5 years with only a “small” benefit from past water injections, and that from Sept. 1, 1961, to the end of production from the Mathis well, an additional 61,000 bbls. of oil will be recovered. However, it appears that without instituting re-pressure operations of their own on the Mathis lease, the Manziels will reap the benefit of the repressure operations of adjoining tracts and recover approximately 106,720 bbls. of oil while there was only, at the most, 22,700 bbls. of oil originally in place recoverable by primary methods. Thus, while the remainder of the field is only able to recover approximately 15% of the total amount of oil in place beneath their tracts without resorting to secondary operations; the Manziels may recover an amount equal to 90% of the total recoverable reserves in place under the Mathis lease without resorting to such operations. In other words, unless the El-dridge #11 well is used for injection purposes, the Mathis well will recover over 5 times the amount of oil it would have been able to recover if primary production had been adjusted according to the proportion of produtive acre feet beneath the Mathis lease. Admittedly, this disparity would be caused by drainage from other leases.

From these figures it is established that without resorting to secondary operations on its Hollandsworth leases, and continuing to rely on primary methods of production, the Manziel Estate-Mathis lease has, and will continue to, produce far in excess of its fair share of the oil in place originally recoverable through the use of such methods. It further appears that unless the order granting the exception is held to be valid, the production will even further exceed the fair share of the primary recovery. Clearly, the Mathis lease has produced, will produce, and will retain thereunder an amount of oil that is its fair share of both the primary and secondary stages of recovery.

We are of the opinion that the order of the Railroad Commission of Texas should be upheld on the ground that there is substantial evidence that the exception here in question is necessary to protect the correlative rights of the Whelan Brothers-Vickie Lynn Unit and to prevent drainage from such unit across lease lines to the Manziel Estate’s Hollandsworth leases, and particularly the Mathis lease. Therefore, the judgment of the trial court is reversed and judgment is here rendered that the permanent injunctions granted by the trial court against the Railroad Commission of Texas and the Whelans be dissolved, and that the Manziels take nothing.

      . For articles that are concerned with such problems see: Keeton and Jones: “Tort Liability and The Oil and Gas Industry II,” 39 Tex.Law Rev. 253, Feb., 1961; Bowen: “Secondary Recovery Operations — Their Values and Their Legal Problems,” Thirteenth Annual Institute on Oil and Gas Law and Taxation, (1960), at p. 331; Hughes: “Legal Problems of Waterflooding, Recycling and Other Secondary Operations.” Ninth Annual Institute on Oil and Gas Law and Taxation, (1959), at p. 105; Smith: “Rights and Liabilities on Subsurface Operations,” Eighth Annual Institute on Oil and Gas Law and Taxation, (1957), at p. 1; Jones: “Tort Liabilities in Secondary Recovery Operations,” Sixth Annual Rocky Mountain Mineral Law Institute, (1961), at p. 639; Williams and Meyers Oil and Gas Law, § 204.5 et seq. See also: Pray: “Oil and Gas: Subsurface Trespass,” 15 OklaLaw Rev., (1962).

      . In instances where there is a continuing, physical invasion of an adjoining mineral estate by drilling across lease lines, the injecting operator commits a trespass and may be enjoined. Hastings Oil Co. v. Texas Co., (1950), 149 Tex. 416, 234 S.W.2d 389.

      . In Delhi-Taylor Oil Corp. v. Holmes, Tex., 344 S.W.2d 420, (1961), it was stated that a sand fracture was analogous to a pipe line leading to the well bore. The Holmes case is controlled by Gregg v. Delhi-Taylor Oil Corp., infra, wherein the question of trespass by authorized sandfraeting on adjoining property was posed but not decided.

      . In cases involving:

        (A)Destructive Vibrations, Universal Atlas Cement Co. v. Oswald, (1941), 138 Tex. 159, 157 S.W.2d 636; Indian Territory Illuminating Oil Co. v. Rainwater, Tex.Civ.App., (1940), 140 S.W.2d 491, writ dismissed; See: Smith: “Rights and Liabilities on Subsurface Operations,” Eighth Annual Institute on Oil and Gas Law and Taxation 1, (1957) ;
      (B) Seismic Exploration, Klostermann v. Houston Geophysical Co., Tex.Civ.App., (1958), 315 S.W.2d 664, wr. ref; Seismic Explorations v. Dobray, Tex.Civ.App., (1943), 169 S.W.2d 739, wr. ref. want merit; Dellinger v. Skelly Oil Co., Tex.Civ.App., (1951), 236 S.W.2d 675, wr. ref., n. r. e.; Stanolind Oil and Gas Co. v. Lambert, Tex.Civ.App., (1949), 222 S.W.2d 125, no writ hist.; See: Kennedy v. General Geophysical Co., Tex.Civ.App., (1948), 213 S.W.2d 707, wr. ref., n. r. e.; Trespass may not be committed by mere vibrations alone, 63 C.J.S. Municipal Corporations § 1186, p. 898;
      (C) Blowouts, Elliff v. Texon Drilling Co., (1948), 146 Tex. 575, 210 S.W.2d 558, 4 A.L.R.2d 191; Keeton and Jones: “Tort Liability and the Oil and Gas Industry,” 35 Tex.Law Rev. 1, (1956);
      (D) Shooting, Liner v. United States Torpedo Co., Tex.Comm.App., (1929), 12 S.W.2d 552, affirmed, 16 S.W.2d 519; Comanche Duke Oil Co. v. Texas Pacific Coal and Oil Co., Tex.Comm.App., (1927), 298 S.W. 554; See: Jones: “Tort Liabilities in Secondary Recovery Operations,” Sixth Annual Rocky Mountain Mineral Law Institute, 639, (1961).

      . As of Jan. 1, 1958, 2,349,958,237 barrels of salt water have been injected into the Woodbine sand, tbe reservoir from which oil is produced. See: Salt Water Disposal, East Texas Oil Field, 2d ed.

      , For example an order of the Railroad Commission that authorized a subsurface invasion was upheld in Corzelius v. Railroad Commission, Tex.Civ.App., (1944), 182 S.W.2d 412, no writ hist., where necessary to prevent waste. There, Cor-zelius was ordered by the Railroad Commission to kill a well located on his lease that had developed a gas leak in the casing, had cratered, caught fire and was threatening the surrounding countryside. Corzelius could not afford to drill the necessary directional well, so the Commission authorized the adjoining leaseholder, Harrell, as the Commission’s agent, to drill a directional well to be surfaced on Harrell’s property and to be bottomed under Corzelius’ land. Corzeli-us contended that such action constituted trespass. The court rejected this position with this statement:
      “ ⅜ ⅞ ⅜ the Commission in carrying out both the constitutional and statutory mandates, had the authority, in our opinion, * * * to authorize someone * * *, to enter upon his premises either above or below the surface * ⅜ * if necessary to stop * * * waste.” Further: “ * * * being authorized by law such entry did not constitute a trespass.”
      However, it has been stated that the latter statement is not authority for the proposition that the type of deliberate action involved in sand fracting would not be a trespass, or as authorizing the Commission to license such action. Gregg v. Delhi-Taylor Oil Corp., supra.
      See also: Humble Oil and Refining Co. v. L. & G. Oil Co., Tex.Civ.App., (1953), 259 S.W.2d 933, wr. ref., n. r. e.

      . Article 6029: “The Commission shall make and enforce rules, regulations or orders for the conservation of crude petroleum oil and natural gas and to prevent the waste thereof, including rules, regulations or orders for the following purposes:
      “» ⅜ ⅞ (4) ¶⅛ reqUire wells to be drilled and operated in such manner as to prevent injury to adjoining property.”

      .Article 6008b, § 1: “Subject to approval of the Railroad Commission of Texas * ⅞ ⅞ persons owning or controlling production, leases, royalties, or other interests in separate properties in the same oil field, gas field, or oil and gas field, may voluntarily enter into and perform agreements for the following purposes:
      “(A) To establish pooled units necessary to effect secondary recovery operations for oil or gas, including those known as cycling, recycling, repressuring, water flooding, and pressure maintenance and to establish and operate cooperative facilities necessary for said secondary operations ;
      “(B) * * *
      “Such agreements shall not become lawful nor effective until the Commission finds, after application, notice and hearing:
      “1. * ⅜ -* that the rights of the owners of all the interests in the field, whether signers of the unit agreement or not, would be protected under its operation.

      “All agreements executed hereunder shall be subject to any valid order, rule, or regulation of the Commission relating to location, spacing, proration, conservation, or other matters within the authority of the Commission * * *.”

      . Thus, while owning only an estimated 1.8 to 2.4% of the total productive feet in the field, the Manziel-Mathis well has had 5.8% of the field’s total primary recovery.

      .It is shown that the pressure at the Mathis well is only 87 pounds per square inch, while the pressure at the Eldridge #11 well is 551 pounds per square inch; the remaining wells in the field report pressures varying from 254 to 328 pounds per square inch.

      . 45,720 bbls. recovered as of Sept. 1, 1961, plus 61,000 bbls. of estimated future recovery from the Mathis well if the Eldridge #11 well is not used at all.

      . Estimated total recovery with the Eldridge #11 well not used at all of 106,-720 bbls. of oil divided by 118,296, the total bbls. of oil originally in place under the Mathis lease.


author: BELCHER, Commissioner. MORRISON, Judge. WOODLEY, Presiding Judge WOODLEY, Presiding Judge. DICE, Commissioner.

text:
    Myrph JOHNSON et al., Appellants, v. STATE of Texas, Appellee.
    No. 33266.
    Court of Criminal Appeals of Texas.
    May 3, 1961.
    On Motion for Rehearing June 14, 1961.
    On Second Motion for Rehearing Nov. 22, 1961.
    Further Rehearing Denied Jan. 17, 1962. Certiorari Denied Oct. 8, 1962.
    See 83 S.Ct. 20.

      Irwin & Irwin, T. K. Irwin, Jr., George W. Irwin, R. T. Scales, Dallas, for appellant.
    Henry Wade, Crim. Dist. Atty., James M. Williamson, Asst. Dist. Atty., Dallas, Leon B. Douglas, State’s Atty., Austin, for the State.
   BELCHER, Commissioner.

This is an appeal by Myrph Johnson and his sureties from the final judgment of the County Criminal Court of Dallas County upon a forfeiture of an instanter appearance bond.

Upon the hearing of the judgment final the information charging the offense of driving while intoxicated, the instanter appearance bond in the sum of $750 and the judgment nisi were introduced in evidence and they appear to be regular and valid. This evidence sufficiently established the state’s case.

It is contended that the trial court erred in holding that under the circumstances shown by the record it did not “possess authority or discretion to render judgment against the sureties for less than the full amount of the appearance bond” at the time it rendered final judgment and at such time refused to determine the request for a remission of the whole or part of the bond.

The evidence shows that after the entry of the judgment nisi and before entry of final judgment the principal appeared in said court, was tried and convicted, and at the time of the hearing to make the judgment final, was serving time in the county jail.

Formal Bill of Exception No. 2 recites:

“It is the opinion and ruling of the court as a matter of law, that under the circumstances shown by the evidence and testimony and the findings of this court, that the court does not possess authority or discretion to render judgment against the sureties for less than the full amount of the appearance bond.” (Emphasis added.)

Art. 439, C.C.P., provides:

“If, before final judgment is entered against the bail, the principal appear or be arrested and lodged in jail of the proper county, the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance.”

Smith v. State, 112 Tex.Cr.R. 567, 18 S.W.2d 672, 674, 675, in part, reads:

“Article 439 confers upon the district judge broad discretion in the matter of protecting the principal and sureties against injustice.” See also: 8 Tex.Jur.2d 218, Sec. 94.

In Burgemeister v. Anderson, 113 Tex. 495, 259 S.W. 1078, 1079, the Supreme Court of Texas said:

“Article 503 (now Art. 439, C.C.P.) of the Code granted statutory authority to the court to remit the whole or part of the sum specified in the bail bond upon proof of the averment in relator’s motion that she had appeared and answered the indictment before the judgment nisi had been made final. On these and the other averments of her motion she was entitled to an adjudication from the court.” (Emphasis added.)

When judgment nisi has been entered and the conditions provided for in Art. 439, C.C.P. have been complied with, the court may, at its discretion, remit the whole or part of the sum specified in the bond or recognizance as to the principal, or the sureties or either one or more of the sureties. 8 Tex.Jur.2d 218, Sec. 94; Barton v. State, 24 Tex. 250; Lee v. State, 25 Tex.App. 331, 8 S.W. 277; Williams v. State, 51 Tex.Cr.R. 252, 103 S.W. 929; Moutas v. Bryson, Tex.Civ.App., 232 S.W.2d 110, writ refused.

The pleadings and the evidence were sufficient to invoke the exercise of discretion by the court under the provisions of Art. 439, C.C.P. and the trial court, upon the request, should have determined whether any remission would be made.

For the error pointed out, the judgment is reversed and the cause is remanded.

Opinion approved by the court.

On Motion for Rehearing.

MORRISON, Judge.

The prior order reversing and remanding this cause is withdrawn.

We find the judgment of forfeiture to be excessive in the sum of $500; and, accordingly, if appellee files a remittitur in that amount within 20 days, the judgment will be reformed and affirmed; otherwise, the cause will be reversed and remanded.

WOODLEY, Presiding Judge

(dissenting).

I do not agree that the trial court’s failure to adjudicate and determine whether any remission should be made, under the provisions of Art. 439, C.C.P., authorizes this court to effect a remission of a part of the amount of the judgment appealed from. Reference is made to my dissent in Ricard et al. v. State, Tex.Cr.App., 350 S.W.2d 938.

On State’s Second Motion for Rehearing

WOODLEY, Presiding Judge.

As pointed out in the motion, no ground exists for finding the judgment against appellant Myrph Johnson, principal in the bond forfeited, excessive. As to this appellant the State’s second motion for rehearing is granted and the judgment is affirmed.

The majority remain convinced that the judgment against the sureties is excessive in the sum of $500. The writer’s views are shown in his dissent on the State’s first motion for rehearing.

Subject to its second motion for rehearing, remittitur has been filed as required in the majority opinion on the State’s first motion.

The judgment as to the appellants who are sureties upon the forfeited bail bond is reformed so as to provide for the recovery against them of the sum of $250 and all costs, and as so reformed, the judgment is affirmed.

The appellant Myrph Johnson, as well as the sureties on his appeal bond, having appealed and having superseded the judgment against them, it is ordered that judgment be entered also against the sureties on the joint supersedeas bond.

ON APPELLANTS MOTION FOR REHEARING

DICE, Commissioner.

Appellants insist that the final judgment of forfeiture entered against them should be reversed because at the time of the hearing, the principal Myrph Johnson was confined in jail and was not given an opportunity to appear in court and show cause why he failed to appear when his appearance bond was forfeited.

While the record reflects that at the time of the hearing, the principal Myrph Johnson was confined in jail, it further shows that he was brought into court and testified at the hearing.

No answer was filed by the principal, Myrph Johnson in the bond forfeiture proceedings and no request was made by him or in his behalf that he be present at the hearing.

Art. 426, Vernon’s Ann.C.C.P., which provides for the issuance of citation to the sureties in a bond forfeiture proceeding also provides: “ * * * It shall not be necessary to give notice to the defendant.”

A judgment may be rendered against all parties without service of citation on the principal. Vaughan v. State, 29 Tex. 273.

Under the record, we find no reason to set aside our opinion affirming the judgment rendered against the principal Myrph Johnson for the full amount of the bond in the sum of $750 and all costs.

The Motion for Rehearing is overruled.

Opinion approved by the court.


author: FANNING, Justice.

text:
    Alma McCUTCHIN et al., Appellants, v. Douglas GODFREY, Appellee.
    No. 7447.
    Court of Civil Appeals of Texas. Texarkana.
    Oct. 23, 1962.
    Rehearing Denied Nov. 13, 1962.
    Donald C. Apeland, Shank, Irwin & Ape-land, Dallas, for appellants.
    Angus Wynne, Henry Baer, Wynne, McKenzie, Stroud, Jaffe & Tinsley, Dallas, for appellee.
   FANNING, Justice.

This suit involves the construction of a written assignment of an oil, gas and mineral lease.

In 1930, a gas and oil mining lease was entered into between Castleberry, Lessor, and Skipper, Lessee, covering a tract of land in Gregg County, Texas. Subsequent thereto, such lease came into the ownership of appellants. On November 22, 1960, appellants assigned said lease to Godfrey, appellee herein, reserving from such assignment an oil production payment, which is th'e subject of the controversy between the parties. We quote from the assignment in part as follows:

“* * * reserving from this conveyance all of the oil from one well upon said lease, subject to the rights of Arkansas Fuel Oil Company, as above set, out, until they have received the full sum of Ninety Thousand Dollars ($90,000.00) free and clear of all expense of production, maintenance and marketing, free into the pipe line, the full sum of Ninety Thousand Dollars ($90,000.00) payable to the Assignors in the following proportions:
“Thirty Thousand Dollars ($30,000.-00) to Mrs. Alma McCutchin, a feme sole, as. an individual;
“Thirty Thousand Dollars ($30,000.-00) to' R. M. McCutchin, Earl Mc-Cutchin and Alma McCutchin, Independent Executors of the Estate of Alex McCutchin, deceased, and
“Thirty Thousand Dollars $(30,000.-00) to the McCutchin Investment Company.
“The oil so reserved by the Assignors shall be delivered to their credit into the pipe lines of Arkansas Fuel Oil Company, or any other purchaser to whom said oil is run, clear of all expense of production and delivery, chargeable only with taxes which may be levied by the United States of America, the State of Texas, or any legal subdivision thereof.”

Appellee, subsequent to the date of the assignment, delivered to the pipe line oil valued at $89,658.57, which sum was credited to the account of appellants. $341.43 was tendered to appellants by appellee to pay the balance of the $90,000.00. Distribution of revenue received for the'oil delivered into the pipe line was made by payment of $85,491.30 to appellants and $4,-167.27 to the Comptroller of the State of Texas for gross production and pipe line taxes.

Appellants contended, prior to the institution of this suit and in this suit, that they were not responsible for the payment of the gross production and pipe line taxes, and that a balance remained due and owing to them of $4,167.27, the amount disbursed to .the Comptroller of the State of Texas.

Appellee brought suit against appellants to construe the reserved interest in said assignment, to recover title and possession of the lease and to remove appellants’ cloud upon appellee’s title to the lease. Plaintiff-appellee tendered to the defendants-appellants the sum of $341.43 by paying same into the registry of the court. The case was submitted on an agreed statement of facts. The trial court, sitting without a jury, rendered judgment for appellee for the title and possession of the lease, declared that any and all claims of the appellants as against appellee’s title to the lease be can-celled and removed as clouds upon appel-lee’s title because appellee had fully paid and complied with all of the terms of the assignment, and costs were taxed against appellants. Appellants have appealed.

Appellants contend that under the assignment they reserved all the oil from one well chargeable with the receipt by and payment to appellants of the full sum of $90,000.00, and that the oil is chargeable with taxes, not the $90,000.00, and that appellants are entitled to receive the full sum of $90,000.00, without being chargeable with the $4,167.27 gross production and pipe line taxes paid to the State Comptroller.

The assignment is unambiguous. The judgment of the trial court was correct, and such judgment is accordingly affirmed.


author: PER CURIAM.

text:
    Amy O. THIBODEAUX, Appellant, v. H. B. ZACHRY COMPANY, Appellee.
    No. 14044.
    Court of Civil Appeals of Texas. San Antonio.
    Oct. 10, 1962.
    Rehearing Denied Nov. 7, 1962.
    G. Woodson Morris, San Antonio, for appellant.
    Groce & Hebdon, San Antonio, for appel-lee.
   PER CURIAM.

Appellee, H. B. Zachry Company, has filed a motion to dismiss this appeal on the ground that this Court has no jurisdiction because proper notice of appeal has not been given by appellant, Amy O. Thibo-deaux.

Appellant, as plaintiff, sued Zachry Company and the City of San Antonio for damages. On April 18, 1962, the trial court granted Zachry’s motion for summary judgment. The order entered on that date contained appellant’s notice of appeal, but did not order a severance. On May 3, 1962, appellant filed a motion to dismiss her case against the City. This motion was granted by the trial court. Appellant attempted to perfect her appeal from this order of dismissal.

It is settled that this Court does not have jurisdiction of an attempted appeal unless the record shows a final judgment with notice of appeal, as provided by Rule 353, Texas Rules of Civil Procedure. City of San Antonio v. Castillo, Tex.Civ.App., 285 S.W.2d 835; Ortega v. Employers Cas. Co., Tex.Civ.App., 223 S.W.2d 663. The order of April 18, 1962, granting the summary judgment, was interlocutory in nature in that it did not dispose of all parties, and therefore was not appealable. Sears v. Mund Boilers, Inc., Tex.Civ.App., 328 S.W.2d 199; Smith v. Miller, Tex.Civ.App., 285 S.W.2d 413; Maxfield v. Dunagan, Tex.Civ.App., 254 S.W.2d 150.

Appellant asserts that when the City was dismissed on May 3, 1962, the summary judgment became final. There was no reference to Zachry’s summary judgment in either the motion or order of dismissal of May 3. This order was styled: “Order of Court Dismissing Case Against The City of San Antonio, Texas,” and it did nothing more than that. Therefore, it cannot be said that the order granting summary judgment was brought forward by reference. Craig v. Rio Grande Electric Cooperative, Tex.Civ.App., 346 S.W.2d 438; Sessions v. Whitcomb, Tex.Civ.App., 329 S.W.2d 470. We feel that it would do violence to the Rules of Civil Procedure to bring forward the interlocutory judgment by inference. A judgment is not a final judgment unless it makes disposition of all parties, either expressly or by necessary implication. Harris v. Superior Ins. Co., Tex.Civ.App., 322 S.W.2d 665. The correct rule would be that the order of May 3, 1962, was interlocutory in that it did not bring forward and make final disposition of Zachry’s cause of action. Pan Am. Petroleum Corp. v. Texas Pac. Coal & Oil Co., 159 Tex. 550, 324 S.W.2d 200.

As there is no final judgment in this cause, we dismiss the appeal without prejudice to have a final judgment entered.


author: RICHARDS, Justice.

text:
    TEXAS ASSOCIATION OF QUALIFIED DRIVERS, INC., Appellant, v. The STATE of Texas, Appellee.
    No. 10996.
    Court of Civil Appeals of Texas. Austin.
    Oct. 17, 1962.
    Joseph R. Darnall, Jr., Austin, for appellant.
    Will Wilson, Atty. Gen., Bob E. Shannon, Asst. Atty. Gen., Austin, for appellee.
   RICHARDS, Justice.

The State of Texas, appellee, instituted quo warranto proceedings against- Texas Association of Qualified Drivers, Inc., appellant, seeking the forfeiture of its charter and a permanent injunction restraining it from engaging in the business of writing general casualty insurance under the provisions of Chapter 8, Texas Insurance Code, Vernon’s Civil Statutes, without having been authorized to transact such business by the State Board of Insurance. The charter of the corporation contained no purpose clause authorizing it to engage in the insurance business in any manner or form.

Upon trial before the Court without the intervention of a jury, the facts being stipulated, the Trial Court held that the activity of the corporation in providing reimbursement of attorneys’ fees incurred for defense of moving traffic violation charges against persons subscribing to the services of the corporation constituted the writing of general casualty insurance as defined in Chapter 8, Texas Insurance Code, V.C.S., and rendered judgment for the State of Texas as prayed for from which this appeal has been perfected.

For its sole point of error appellant contends that the Trial Court should not have held as a matter of law that it was engaged in the business of writing general casualty insurance as defined in Chapter 8, Texas Insurance Code, since its activity in providing reimbursement of attorneys’ fees for defense of moving traffic violation charges against its subscribers does not constitute the writing of insurance as defined in the statute.

Appellant is a corporation organized under the Texas Business Corporation Act as an association of automobile drivers and solicits and sells memberships in the association. Among the benefits received by such members is reimbursement for attorneys’ fees incurred by them when involved in a moving traffic violation as follows:

“Í) Up to $10 for counsel when the case is not contested;
“2) Up to $50 per day for services in a justice court or traffic court;
“3) Up to $75 per day for services in a County Court or County Court-at-Law;
“4) Up to $150 per day for services in a District Court;
“5) Up to $250 per day for services in the Texas Court of Criminal Appeals;
“6) Whenever a member shall plead not guilty in a justice, corporation, or traffic court, appeals to the County Court or County Court-at-Law, and the case is dismissed on motion of the County Attorney, the association shall, for such procedure, reimburse member for attorneys’ fees not to exceed $25.00.”

The provisions for reimbursement do not include court costs, fines, costs of appeal, bonds and other expenses other than attorneys’ fees and the Association does not reimburse its members for attorneys’ fees in the defense of any charge involving the member’s use of alcohol or narcotics, leaving the scene of an accident, or failure to stop and render aid.

The sole question for decision is whether the reimbursement to members for attorneys’ fees incurred by them as above set forth constitutes insurance. If so, since appellant admittedly has not been authorized by the State Board of Insurance to engage in the writing of insurance as provided in Art. 1.14, Texas Insurance Code, it has been violating the insurance laws of the State of Texas.

Chapter 8, Texas Insurance Code, provides for the incorporation of general casualty insurance companies. Section 12, Art. 8.01, authorizes the incorporation of such companies “To insure against any other casualty or insurance risk specified in the articles of incorporation which may be lawfully made the subject of insurance, and the formation of a corporation for issuing against which is not otherwise provided by this article, excepting fire and life insurance.” The Trial Court held that the reimbursement for attorneys’ fees paid by the association to its members constituted a general form of casualty insurance within the provisions of Art. 8.01.

There is no statutory general definition of the word “insurance” in Texas. However, insurance has been defined by the Appellate Courts of Texas as “ ‘An undertaking by one party to protect the other party from loss arising from named risks, for the consideration and upon the terms and under the conditions recited.’ * * * Whether or not a contract is one of insurance is to be determined by its purpose, effect, contents, and import, and not necessarily by the terminology used, and even though it contain declarations to the contrary.” National Auto Service Corporation v. State, Tex.Civ.App., 55 S.W.2d 209, 211, err. dism. It has also been defined as “a contract by which one party for a consideration assumes particular risks of the other party and promises to pay him or someone named by him a certain or ascertainable sum of money on a specified contingency.” Denton v. Ware, Tex.Civ.App., 228 S.W.2d 867, 870, no writ history.

Here the purpose of the contract made by appellant with its members for a stated consideration was to indemnify or reimburse the holder of a membership certificate for payments incurred by the member for attorneys’ fees in the defense of a moving traffic violation in which the member was involved under certain conditions and within the limitations set forth in the certificate. Under the above definitions of insurance it is clear that the contract between appellant and its members constitutes an insurance contract.

Whether reimbursement for attorneys’ fees constitutes insurance does not seem to have been passed upon directly by the appellate courts of Texas. The Supreme Court of Michigan in Continental Auto Club, Inc. v. Navarre, 337 Mich. 434, 60 N.W.2d 180, has construed a contract of an automobile club which furnished reimbursement for attorneys’ fees to its members under a provision somewhat similar to the one here involved. The Michigan Insurance Code, like the Texas Insurance Code, contained no general definition of insurance. However, there was a definition of the term “automobile insurance” which stated that such insurance covered “against any loss, expense, and liability resulting from the ownership, maintenance or use of any automobile or other vehicle.” Comp. Laws 1948, § 543.3. The Court held that:

“In view of the use of the word insurance in general in the insurance code, and as the word is generally used in cases that deal with the subject of insurance, we are of the opinion that by engaging in the business of ■ furnishing its members under its contract the benefits hereinbefore recited, the plaintiff corporation was and is in fact engaging in the business of insurance.”

Appellants’ point of error is overruled and the judgment of the Trial Court is in all things affirmed.

Affirmed.

      . The types of insurance which may be written by life, accident and health com-pañíes are defined in Art. 3.01, Texas Insurance Code.


author: HIGHTOWER, Chief Justice.

text:
    F. & C. ENGINEERING COMPANY, Appellant, v. Carl WALL et al., Appellees.
    No. 6500.
    Court of Civil Appeals of Texas. Beaumont.
    Oct. 4, 1962.
    Rehearing Denied Oct. 31, 1962.

      King, Sharfstein & Rienstra, Beaumont, for appellant.
    Alto V. Watson, J. R. Beck, • Beaumont, for appellees.
   HIGHTOWER, Chief Justice.

This suit is for damages to a motor vehicle. On the morning of July 27, 1956, a driver of appellees was operating a concrete mixer truck over State Highway 73 when he ran into a “cut-out” or ditch extending across said highway. This portion of the highway was under construction by appellant. There was no flagman, lights, or barricades at the approach to said ditch. Trial to a jury resulted in a verdict and judgment for appellees in the sum of $12,-150.00.

In substance are the pertinent jury answers to special issues submitted:

“The appellant allowed the ditch to remain open in the knowledge that the roadway was being used by vehicles. The appellant failed to erect a barricade, maintain a flagman or lights on either side of the ditch.”

Each of the foregoing acts and omissions was found to be negligence and a proximate cause of the damages.

In response to appellant’s defensive issues, the jury found:

“The driver did not fail to keep a proper lookout; was not driving at an excessive rate of speed, and was not negligent in sooner applying his brakes just before the accident.”

For a better understanding of appellant’s 29 points of error, the following statement from the record will be helpful. Most of the material testimony is undisputed:

Appellant was constructing the highway in question under a contract with the Texas State Highway Department It was buying much of its ready mixed concrete from appellees who were to deliver the same in concrete mixer trucks of the nature involved in the accident. The facts immediately preceding and surrounding the accident are largely without dispute and come from appellees’ driver, Don Westmoreland, who was driving the truck on the occasion of the accident. The truck was loaded with mixed concrete and the vehicle and load weighed in excess of 50,000 lbs. Most of the roadway proper was covered with a dark asphalt topping, twenty-four feet wide. The driver was proceeding west immediately before the accident when he perceived a pile of white shell upon the middle of the roadway in front of him. The right-of-way of the highway was 170 feet wide at this place. The roadbed itself at this point was 70 feet wide. The driver could see the shell pile “a long ways” before he saw the ditch. He first saw the ditch into which he wrecked the truck at a distance of about 50 feet from him when his rate of speed was about 45 miles per hour. He immediately started applying his brakes and at the time he plunged into the ditch he had slowed his vehicle to about 35 miles per hour. This ditch, extending across the entire 70 feet of the roadbed, had been dug by appellant who had placed a 70 foot steel culvert pipe, 38 inches in diameter, 'in the same and covered it with dirt, though not flush with the topped surface of the roadway. The ditch was 8 to 10 feet wide and 2 to 2Y2 feet deep from the surface of the road to the fill dirt above the pipe, and extended all the way across the 70 foot roadbed as aforesaid. Approaching from the east in a westerly direction it was difficult to discern the ditch, for the fill dirt in it, and the sides of the same, was about the same dark color of the black topping on either side of it. The driver knew that the road was under construction, having passed a barricade some 2 or 3 miles behind him where he entered upon the roadway. He had no knowledge of the ditch. This barricade with the sign “open to limited traffic only” was not across the road, however, but was removed to one side so as to per-init vehicular traffic such as appellees’ trucks and farmers living adjacent thereto. The' driver testified that he clearly saw the pile of shell, which was 10 or 15 feet west on the opposite side of the ditch; that he could easily have driven around this pile of shell, there being plenty of room to do SO on the left side thereof, and had intended doing so, but that although he was observing the road in front of him, he did not see the ditch in time because of the similarity in color of its banks and fill dirt ■to that of the black topping upon the surface of the road. One of the appellee-own-ers of the truck, as did Mr. Moon, appellant’s superintendent of construction, testified to this similarity in color. Mr. Moon ■also stated that there was ample room "on either side of the shell pile for a vehicle to have driven around it.

' 'Úhder its first four points of error ap-■pe'llant urges that the court erred in overruling -its motion for instructed verdict because, first, its only duty was not to willfully and wantonly damage appellees and, ■second, it* violated no duty owing appellees 'because of the knowledge of their driver that the highway was under construction, '.and the existence of the ditch should have 'Been observed by him and the hazards in‘cident thereto fully appreciated.

•T Appellant admits that it has been unable ⅛0' find any case in direct support of its first contention, but nevertheless submits ‘that ‘Support for such contention is found ⅜ such cases as Driver v. Worth Construction Co., 154 Tex. 66, 273 S.W.2d 603 and Siratt v. Worth Construction Co., 154 Tex. 84, 273 S.W.2d 615. These cases are not in point inasmuch as they concern trespassers who were wrongfully driving upon roadways under construction.

In connection with appellant’s second contention above it asserts that the driver had ample warning inasmuch as he knew the roadway was under construction and could see the pile of shell. It asserts the correct principle of law that even in cases of latent, concealed and adherent defects, the liability of the owner or occupier of premises is not absolute and unconditional. It also cites Robert E. McKee, General Contractor, Inc. v. Patterson, 153 Tex. 517, 271 S.W.2d 391, as supporting its position. The facts of this case are also distinguishable from those of the case at bar. There plaintiff-invitee was denied recovery against an occupier of premises for the reason that the dangers of the same were open and obvious. Here the danger was camouflaged and hidden to one approaching from the east. The decision of Schawe v. Leyendecker, Tex.Civ.App., 269 S.W. 864, n. w. h., is also distinguishable on the facts.

Appellant had the duty to use due care to provide a safe place for appellee’s truck drivers to operate. Smith v. Henger, 148 Tex. 456, 226 S.W.2d 425, 20 A.L.R.2d 853. It did not fulfill this duty. Appellees’ driver did not see the ditch until he was some 50 feet of it because of the conditions and reasons aforesaid. The pile of shell itself was not warning of the presence of the ditch, because it was some 15 feet to the west of the same, on the opposite side and only covered a part of the roadbed. It áppears that the pile of shell actually served as a distraction to appellees’ driver because as he approached the ditch he observed the shell and planned to go around it to the left. Appellant’s first four points are overruled.

Under its remaining twenty-four points of error the appellant either asserts there was no evidence to sustain the jury findings hereinbefore set out, or asserts that the evidence was insufficient to sustain such findings, they being clearly against the great weight and preponderance of the evidence. In connection with these last points, it makes no further argument of consequence, but contents itself by adopting the statement, argument and authorities set forth under its first four points of error.

It would serve no useful purpose for this court to restate the evidence in the record. That which has heretofore been stated is the only material evidence and it refutes appellant’s contentions. Therefore, we likewise adopt our foregoing statement and conclusions and overrule appellant’s, last points of error.

Judgment affirmed.