text:
    FEDERAL UNDERWRITERS EXCHANGE v. HIGHTOWER.
    No. 14098.
    Court of Civil Appeals of Texas. Fort Worth.
    June 7, 1940.
    Rehearing Denied Sept. 13, 1940.

      Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for appellant.
    Houtchens & Houtchens and J. Harold Crailc, all of Fort Worth, for appellee.
   SPEER, Justice.

This is a workmen’s compensation case. Plaintiff Bill Hightower is the employee, defendant Federal Underwriters Exchange is the insurance carrier, and Bluebonnett Packing Company of Fort Worth, the employer. The parties will carry the same designation here as in the trial court.

Plaintiff instituted this suit in a district court of Tarrant County, to set aside an award of the Industrial Accident Board and to recover compensation for an accidental injury alleged to have been sustained while in the course of his employment with the above named Packing Company. Primarily, he sought to recover compensation for total and permanent disabilities, and alternatively for each and all of the lesser degrees of disability, i.e., partial, permanent and temporary. Competent allegations were made for recovery of lump sum judgment. Defendant answered with general demurrer, special exceptions and general denial.

The case was tried to a jury on special issues. Preliminary to submission of special issues, the court, in his charge, defined all necessary words, terms and phrases to be used in connection with the issues to be submitted, and no complaint is here made of any except paragraph 3, in which a definition was given of “Injuries received in course of employment.” That paragraph reads: “By the term Injuries Received in the Course of Employment, as used in this charge, means injuries of every kind and character having to do with and originating in the work, business or profession of the employer, received by an employee while engaged in or about the furtherance of the affairs or business of his employer, and such injury as had to do with, and arises out of the work or business of the employer when such injury results from a risk or hazard which is necessarily or ordinarily inherent in or incident to the conduct of such work or business.”

Insofar as it is necessary to state, the verdict was:

1. Plaintiff sustained an injury to the middle finger of his left hand on or about August 15, 1938.

2. The injury was accidental, as that term was defined in the charge.

3. It was received while in the course of his employment by the named Packing Company.

4. Plaintiff became afflicted with undulant fever on about August 15, 1938.

4a. The affliction was the natural result of the injury sustained by plaintiff to his middle finger on about August 15, 1938.

5. Plaintiff has been totally incapacitated, as a natural result of the injury sustained.

6. The total incapacity began on August 15, 1938. •

7. That his total incapacity was permanent.

8. Conditionally submitted but asked the jury to fix the number of weeks to the present (date of trial, June 29, 1939) that plaintiff had suffered total incapacity to work. (Not answered.)

9. Plaintiff will suffer total incapacity in the future as a natural result of the injuries sustained.

10. He will, in the future, suffer total incapacity for 400 weeks as a natural re-suit of the injuries sustained on August 15, 1938.

Without qualification or reference to any previous answer, Special Issue No. 11 and its answer read: “Do you find from a preponderance of the evidence that the plaintiff, Bill Hightower, has suffered partial incapacity for work (as that term has been defined for you in paragraph 5 above) as a natural result Of the injury, if any, sustained by him on or about August 15th, 1938?” Answer: “No.”

Special Issues 12, 13, 14, 15, 16, and 17 were submitted to be answered only upon condition that the jury had answered Issue 11, that there had been a partial disability to plaintiff. The several inquiries sought to ascertain that in the event there was a partial disability, (a) when did it begin, (b) was it permanent, (c) if not permanent, to fix the number of weeks since it began to the date of trial, and (d) if the partial incapacity was not permanent, to fix the number of weeks plaintiffs partial incapacity would continue in the future. Special Issue No. 11 was answered that there was no partial incapacity, and Issues 12 to 17, both inclusive, were not answered.

20. Plaintiff’s average weekly wage for the preceding year was $15.

21 and 22. Manifest hardship and injustice will result to plaintiff if his compensation is not paid in a lump sum.

23. The cow which plaintiff skinned on or about August 15, 1938, was infected with Bang’s disease.

In response to other special issues disclosed by the record to have been requested by defendant, it was found that, (a) plaintiff was not fully recovered on October 1, 1938, (b) plaintiff’s total incapacity was not a result of a cut on his thumb at a date previous to August 15, 1938, (c) any partial incapacity was not produced by a cut on plaintiff’s thumb about three weeks before August 15, 1938, (d) the total incapacity of plaintiff was not produced by some cut on his hand other than the one claimed to have been received on August 15, 1938, (e) any partial incapacity of plaintiff since August 15, 1938, was not caused by a cut on his hand other than the one on the last date mentioned, (f) plaintiff did not contract undulant fever solely from drinking milk, (g) the undulant fever contracted by plaintiff was not caused by coming in contact with diseased cows other than the one on the occasion when he cut his middle finger. Special Issue No. 18 requested by defendant, the explanation requested and given with it and the answer, were:

“Do you find from a preponderance of the evidence that the incapacity, if any, suffered by plaintiff since August 15th, 1938, is not the result of occupational disease?” Answer: “Yes.”
“In connection with the above issue, you are instructed thqt the term ‘occupational disease’ means a disease contracted by a slow and gradual process in the ordinary course of employment and because thereof, and reasonably to be anticipated as a result of the work, and which, from the common experience of mankind, is known to be incidental thereto.”

Other answers to issues found that undulant fever contracted by plaintiff was not caused by coming in contact with germs at any time other than on August 15, 1938, not related to the occasion of cutting his finger, and that he would not have contracted the fever but for the cut on his' finger on that date.

Judgment was entered for plaintiff on the verdict in a lump sum for $2,858.73, prorated two-thirds to him and one-third to his attorneys. Motion for new trial was overruled and this appeal perfected.

Appellant’s fifty-two assignments of error are briefed under ten propositions. The first five of which propositions are said to be germane to assignments of error 1 to 23, and are briefed by appellant in a group, since, as stated in the brief, “They all relate to and raise the question of sufficiency of the evidence to support the several findings of the jury on the question of when, how and where he (plaintiff) contracted undulant fever.” It is also claimed that a verdict should have been directed for defendant.

The evidence in this case is that given by plaintiff and witnesses offered by him; defendant offered no testimony, other than to cross-examine plaintiff and his witnesses.

The plaintiff testified that he cut his finger while skinning a cow for his employer, a few days before he was stricken with fever, on August 15, 1938. That he called his foreman’s attention to the cut and then went and had the finger dressed with a disinfectant, that it bled freely; he then returned and finished skinning the animal. The exact date on which his finger was cut is not definitely stated. In one place he said it was a few days before the 15th; in another, he said he had cut his finger four days or more possibly, before the 15th, when he had to quit on account of his illness; again he testified: “I told him (the foreman) about it (cutting the finger) the same day. The rest of the day, my finger was bound up but I continued to work. I continued to work about four or five or six days before I had to give up, and had to go home.” On cross-examination he said: “I don’t believe I remember the date I cut my finger but it was two or three days before I was taken sick. I went home on a Monday, I believe on the 15’th, and this happened on Friday or Saturday. Then on Monday I was taken sick with a fever. I don’t believe it was over three days after I had this cut until I took sick with fever. It must have been three or four days, I wouldn’t say positive.”

It is disclosed by the evidence that the type of business carried on by the employer, among other things, was to buy carcasses of animals, skin them and convert various parts into commercial products. Plaintiff testified that the four or five year old Jersey cow which he skinned, after cutting his finger, was dead when brought to the plant; her udder was badly swollen, and that the animal had the appearance of having lost a calf. That in doing his work he necessarily had to split the skin across the udder and got the contents onto his hands.

A veterinarian testified that some cattle have a fever known as Bang’s disease. The effect of that disease is to cause abortion among the females so afflicted; the disease and its results often produce death. The witness further testified that it was a recognized fact that persons drinking unpasteurized milk from cows or goats afflicted with the disease will contract the fever; it is a germ disease and the germ gets into the animal’s blood stream and the milk; a person who contacts these germs may take the fever; the germ may get into the body through a cut or wound; that no one knows how long after a person has been exposed to these germs before it shows up on him. Witness said he did not pretend to be an expert on diseases of the human body, but that his experience was confined to diseases of animals and those” that may be transmitted from animals to persons.

Dr. Swift testified, in effect, that he treated plaintiff for several months, beginning with September 5, 1938; he under-’ stood that previously Dr. Greines had treated plaintiff at a hospital .until about August 27th; that on September Sth, plaintiff became very sick; Dr. Greines was out of town and witness took plaintiff to the hospital, where he treated him for some months. The first tests made for undulant or Malta fever by the witness were negative, but within a day or two other tests made were very positive; it was explained that acute stages would not always be revealed upon test. That it is only when the disease becomes chronic that it is readily demonstrated; during treatment by Dr. Greines and before witness began, tests were negative. Based upon a hypothetical question involving the cut on plaintiff’s hand and his acts of skinning a cow and developing pains in his arm and side, followed by fever within three or four days, witness said plaintiff would run every chance in the world of developing an infection, if the cow was infected. He said the disease could be contracted in many ways, the most common of which were exposures to infected animals, and drinking infected milk. He said the disease was caused by a germ and was not ordinarily the result of an external injury. That the incubation period for undulant fever is anywhere from five days to a month, depending upon a great many things; the witness never knew of a case developing in less than five days from date of infection; that plaintiff was not well at the time of trial, and witness could not say when he would be; that the disease was very difficult to control; it could be arrested but unless all germs were destroyed the fever would likely return; plaintiff’s trouble may last for six months or for years. Dr. Phillips, a partner in the Clinic with Dr. Swift, testified to substantially the same as that above mentioned.

The testimony is far from being conclusive, but we are not ready to say, with appellant, that there was no testimony to support the material jury findings, viz.: (a) That the cow skinned by plaintiff on August 15, 1938, was infected with Bang’s disease; (b) that plaintiff became infected with the disease as a result of coming in contact with the germs while skinning the cow; and (c) that he did not contract the disease from any of the other sources shown. Often it becomes necessary to prove that facts exist by showing circumstances which lead to a conclusion with reasonable certainty, that the ultimate fact sought to be proved, does exist. The veterinarian explained the symptoms of the disease in animals so infected; it seems that this cow had the appearance of having been infected; the doctors said plaintiff would have every chance to contract the disease, if he 11⅞ the cut finger and skinned an infected cow. Plaintiff unquestionably had the cut finger, skinned the cow and took down with fever within a few days, perhaps three, four or more days; about two weeks later it was diagnosed as undulant or Malta fever. It is insisted by defendant that because the doctors testified that in their opinion undulant fever would not develop' in less than five- days after exposure to the germ, there was no evidence to support the jury finding that plaintiff contracted it in the manner and at the time claimed by him. We do not agree with this contention. The circumstances in the evidence to which we have referred were sufficient to make it a jury question. The well known general rule governing circumstantial evidence is laid down in 17 Tex. Jur., sect. 409, p. 908, and Ibid., sect. 410, p. 910. Under the rule there announced, we think there was evidence, of a substantial nature, to support the verdict, and that it would have been error for the court to instruct a verdict for defendant. The group of propositions under discussion are therefore overruled.

Other propositions to be considered involve procedural questions which arose upon the trial. We will proceed to notice them in the order presented. The sixth proposition is germane to assignments of error 24 to 32, both inclusive. It complains of the definition given by the court of what is meant by the term, “Injuries sustained in the course of employment”, as above quoted. It is contended that so much of the explanation as is taken from the statutory provision (Article 8309, R.C.S., second subsection 4 of Section 1) was properly given, but that the remainder of the charge, beginning with the words, “and such injury as has to do with and arises out of * ■ * * ”, and so on, was reversible error, because it (a) was prejudicial to defendant’s rights, in that it was an erroneous statement of the law applicable to the case, (b) the definition as given encompassed the elements of an occupational disease, shown by the evidence, for which no compensation can be allowed, and (c) was calculated to and did lead the jury to believe that injuries resulting from an occupational disease were compensable.

There is no merit in the proposition based on the reasons urged. The part of the definition complained of is not an incorrect statement of the law, as given by a construction of the statute by our Supreme Court. Lumbermen’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S.W. 72, 28 A.L.R. 1402; Federal Surety Co. v. Ragle, Tex.Com.App., 40 S.W.2d 63, and Erwin v. Texas Employers’ Ins. Ass’n, Tex.Civ.App., 63 S.W.2d 1076, 1078, writ of error refused. These, and many more cases of like kind, are collated in 45 Tex.Jur., sect. 75, p. 464. The part of the charge complained of in the instant case is substantially the language used by the courts in the above cited authorities.

The charge does not. embrace any more of the elements of “occupational disease” than were necessary to define “Injuries sustained in course of employment”. As above pointed out, it will be 'observed that in the language requested by defendant, the issue of whether or not plaintiff was suffering from an occupational disease was submitted to the jury. In the definition of “occupational disease”, as requested by defendant (to which it cannot now object), that disease is said to be one “contracted by a slow gradual process in the ordinary course of employment”, and further embraces its foreseeableness. It is well settled that disability resulting from occupational disease is not compensable under our laws. A definition of that type of disease is found in the case of Barron v. Texas Employers’ Ins. Ass’n, Tex.Com.App., 36 S.W.2d 464, 466. In that case it is said:

“A distinguishing characteristic of an accidental injury [from that of occupational disease] is,that it can always be traced to a definite time, place, and cause. Amalgamated Sugar Co. v. Industrial Commission, 56 Utah 80, 189 P. 69.
“An occupational disease must be restricted to one that is the usual and ordinary result incident to the pursuit of an occupation and must in the nature of things be the result of a slow and gradual development.”

In the instant case, plaintiff’s injury was traceable to a definite time and place; it may be perceived that from the nature of the employer’s business other infected animals would be brought there, but the evidence does not reveal that it was ever done; no other person is shown to have ever previously contracted Malta fever at the employer’s place of business; it does not appear affirmatively from the record that plaintiff’s affliction was one known to be incidental to his particular type of employment. The proposition cannot be sustained, and must be overruled.

Seventh and eighth propositions complain of the manner in which the degrees of incapacity to labor were submitted, and because a lump sum judgment was entered. In response to Special Issue 5, it was found that plaintiff’s incapacity was total, and in answer to No. 7, the incapacity was found to be permanent. Special Issue No. 8 was submitted and to be answered only in the event the jury had answered No. 7 in the negative; that issue having.been answered in the affirmative, No. 8 was not answered. The unanswered issue sought to elicit the number of weeks plaintiff had been totally incapacitated up to the date of trial. Special Issue No. 9 was conditionally submitted; that is, if the jury had answered No. 7 in the affirmative (that plaintiff’s incapacity was permanent) they need not answer, but to be answered if answered negatively. Notwithstanding the conditional submission and the fact that No. 7 was answered affirmatively, the jury answered No. 9 finding that plaintiff would, in the future, suffer total incapacity. Special Issue No. 10 was conditional, to be answered only if the jury had answered No. 9 affirmatively, as it did. By Issue 10 and its answer, it was found that plaintiff would suffer total disability in the future for 400 weeks.

Defendant’s plea of general denial put in issue all phases of plaintiff’s cause of action. These consisted of total permanent, temporary total, temporary and permanent partial disability. Defendant was entitled to have each and all of these elements, upon which evidence was introduced, affirmatively and unconditionally submitted. Texas Indemnity Ins. Co. v. Thibodeaux, 129 Tex. 655, 106 S.W.2d 268; Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314; Southern Underwriters v. Wheeler, 132 Tex. 350, 123 S.W.2d 340; Texas Fire & Casualty Underwriters v. Watson, Tex.Civ.App., 126 S.W.2d 496, writ refused; Traders & Gen. Ins. Co. v. Lincecum, Tex.Civ.App., 126 S.W.2d 692; Commercial Standard Ins. Co. v. Davis, Tex.Civ.App., 135 S.W.2d 794, writ dismissed, judgment correct, 134 Tex. 487, 137 S.W.2d 1.

Complaint is. made that nowhere did the court submit affirmatively and unconditionally whether or not plaintiff's total incapacity was temporary. There was evidence to raise that issue and the court erred in not unconditionally submitting that issue to the jury. This error was not cured by the unconditional submission of Special Issue No. 11, above quoted; that inquiry went alone to the question of partial incapacity. Nor does Special Issue No. 10 and its answer, to the effect that plaintiff would be totally disabled for 400 weeks in the future, remove the deficiency.

Reverting to the eighth proposition, which complains of the entry of a lump sum settlement, we have concluded that there was reversible error committed when that decree was entered. Such a judgment can only be entered in cases where death or total permanent incapacity is shown to have resulted from the injury. Article 8306, Section 15, R.C.S.

We must take cognizance of the verdict upon which the judgment was entered. There were findings of total and permanent disability, but by Special Issue No. 10 it was found that the total permanent disability would last 400 weeks. We must concede that these findings are contradictory one of the other. A finding that total disability will last 400 weeks is not tantamount to a finding of total permanent disability. Texas Employers Ins. Ass’n v. Shilling, Tex.Civ.App., 259 S.W. 236. In view, of the fact that the answer to Special Issue 10 found that plaintiff’s total disabilities would last 400 weeks in the future (from the date of trial) and the fact that about 42 weeks had already passed since the date of'his disability began, we perhaps would be warranted in reversing the judgment of the trial court entering a lump sum settlement and affirming the remainder, requiring weekly compensation during the period of disability, if that was the only error in the record. But because the case must be reversed and remanded for other reasons pointed out, and to avoid a possible conflict in our holdings here and that announced in the Shilling case, supra, we reverse and remand because of error shown in both the seventh and eighth propositions, and the assignments to which they relate.

We overrule the ninth proposition, wherein it is claimed that there was error committed by the court in submitting the ancillary and supplemental issues embraced in Special Issues 12 to 17, submitted conditioned upon the nature of the answer given to No. 11. That issue inquired whether or not plaintiff sustained a partial disability, and. was answered that he did not. The jury having found that there was no partial disability, it became immaterial as to when it began or whether it was temporary or permanent, either prior to the trial or would be such in the future. Traders & Gen. Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, 439, writ dismissed, judgment correct.

The tenth proposition asserts that since undulant fever is curable, and that being the only affliction relied upon by plaintiff to show that his disability is total and permanent, no judgment should have been rendered awarding him compensation for total and permanent disability and a lump sum settlement. The evidence is very meager on the point as to how long it will last or whether it is such a disease as could likely be cured. But what we have said requiring the reversal of the judgment renders it unnecessary to pass upon the point raised.

This opinion perhaps has already been unnecessarily extended, but what we have said is with a view to be of assistance to the court upon another trial.

In view of the recent decisions of our Supreme Court, cited above,, requiring all ultimate issues upon which the plaintiff’s case rests or either of the defenses raised by the pleadings and evidence, it is imperative that trial courts should submit them affirmatively and unconditionally. If a conflict in the verdict is thus brought about, the court should endeavor to have the jury eliminate it in the manner so often prescribed by our appellate courts, and if this cannot be done, a new trial should be granted, and thus avoid the expense and delay of appeals.

For the reasons assigned, the judgment of the trial court is reversed and the cause is remanded for another1 trial.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    Santana PEREZ, Relator, v. William M. HOLLAND et al., Respondents.
    No. 11140.
    Court of Civil Appeals of Texas. Galveston.
    Aug. 1, 1940.
    Harry B. Berry, of San Antonio, for relator.
    Gammage, Gammage & Bauer and Charles D. Bauer, all of Houston, for respondents.
   PER CURIAM.

The application of relator for writ of mandamus was set for hearing on July 29, 1940, but both relator and respondents failed to appear except by said application and by answer of respondents, and' by briefs filed herein. The Hon. William M. Holland has filed by way of answer a full statement of facts which is not disputed, which, in our opinion, requires, as a matter of law, that the application for the writ of mandamus be refused, and it is hereby refused.

Refused.


author: COMBS, Justice.

text:
    TECHNICAL CHEMICAL COMPANY, Appellant, v. O. R. FLANNAGAIN, Appellee.
    No. 3688.
    Court of Civil Appeals of Texas, Beaumont.
    June 27, 1940.
    House & House, of Dallas, for appellant.
    Reasonover & Reasonover and Ellsworth A. Weinberg, all of Dallas, for appellee.
   COMBS, Justice.

This suit originated in the county court of Dallas County at Law No. 1 and involves money demand of $200. Judgment was entered by the trial court in favor of the appellee, who was plaintiff, for that amount. We have carefully examined the record and finding no reversible error, the judgment of the trial court is affirmed without written opinion. See Texas & N. O. R. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040.


text:
    ROBERTS et al. v. MAGNOLIA PETROLEUM CO. et al.
    No. 25187.
    Supreme Court of Texas.
    Sept. 18, 1940.
    Phillips & Williamson, of Tyler, and Harry M. Stanfield, of Dallas, for plaintiffs in error.-
    Roy C. Ledbetter, of Dallas, for defendant in error Magnolia Co.
    J. W. Hassell, Jr., of Dallas, for defendant in error Lanius.
   PER CURIAM.

In this case the plaintiff Elizabeth Roberts was joined merely “pro forma” by her ■husband. In addition, it was proven that the husband had executed a release of her cause of action for a valuable consideration. While the accident out of which the alleged cause of action arose occurred in the State of Oklahoma, yet there were no allegations or proof that under the laws of the State of Oklahoma the cause of action for personal injuries was the separate property of the wife. In the absence of such allegations and proof, the case having been tried in the courts of this State, the law of this State would govern. The decision of the Court of Civil Appeals as to the defendant Magnolia Petroleum Company is manifestly correct, and, for the reasons above stated, the judgment of the trial court was properly affirmed by the Court of Civil Appeals.

The writ of error is therefore refused.


author: SLATTON, Commissioner.

text:
    HOUSING AUTHORITY OF CITY OF DALLAS et al. v. HIGGINBOTHAM et al.
    No. 7675.
    Supreme Court of Texas.
    June 26, 1940.

      H. P. Kucera, City Atty., and Scurry & Scurry, all of Dallas, for appellants.
    Samuels, Foster, Brown & McGee, of Fort Worth, amici curiae.
    Joe A. Worsham, Allen Wight, E. A. Belsterling, and Irion Worsham, all of Dallas, for appellees.
   SLATTON, Commissioner.

The Housing Authority of the City of Dallas instituted proceedings under the general condemnation statutes in the county court at law of Dallas County seeking to condemn property belonging to Will Higginbotham for the establishment, construction and operation of a low rent housing project. The Authority had instituted other similar proceedings and contemplated such action against other adverse parties herein. Higginbotham and the other parties similarly situated made application to the district court of Dallas County for injunction on the grounds that the housing law was unconstitutional. The parties, through stipulation of facts and evidence, submitted the application for temporary injunction to the court and a temporary injunction was issued against the Housing Authority in conformity with the prayer of the petitioners. The Authority appealed to the Court of Civil Appeals at Dallas. That court certified the constitutional questions to this court. We quote the following important portions of the certificate of the Honorable Court of Civil Appeals:

“The Texas Housing Authorities Law, Vernon’s Ann.Civ.St. Art. 1269k, generally under attack, is lengthy, and pertinent features thereof need only be referred to by section and paragraph, except as to Sec. 2 (the Legislature’s finding and declaration of necessity), which we quote: ‘(a) That there exists in the State insanitary or unsafe dwelling accommodations and that persons of low income are forced to reside in such insanitary or unsafe accommodations ; that within the State there is a shortage of safe or sanitary dwelling accommodations available at rents which persons of low income can afford and that such persons are forced to occupy overcrowded and congested dwelling accommodations ; that the aforesaid conditions cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals, and welfare of the residents of the State and impair economic values; that these conditions necessitate excessive and disproportionate expenditures of public funds for crime prevention and punishment, public health and safety, fire and accident protection, and other public services and facilities; (b) that these slum areas cannot be cleared, nor can the shortage of safe and sanitary dwellings for persons of low income be relieved, through the operation of private enterprise,' and that the construction of housing projects for persons of low income (as herein defined) would therefore not be competitive with private enterprise; (c) that the clearance, replanning, and reconstruction of the areas in which insanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of State concern; that it is in the public interest that work on such projects be commenced as soon as possible in order to relieve unemployment which now constitutes an emergency; and the necessity in the public interest for the provisions hereinafter enacted; is hereby declared as a matter of legislative determination.’
“It is primarily the contention of Appel-lees (Plaintiffs in injunction) that, considering the purpose of the whole act, it authorizes a taking of their .property not exclusively for a public use, under the Texas decisions and Constitution, with especial reference to the limitations of Art. 1, Sec. 17, Vernon’s Ann.St.; that, if valid at all, the primary purpose of the Act is slum clearance; that the proceedings brought and' to be brought by Appellant nowhere declare the existence of a purpose to clear any slums, but, on the other hand, the direct object of the present proceedings is the taking of private property by the power of eminent domain, for a low-cost housing project, independent of slum clearance; it being stipulated that the property sought is not in a slum area and the residences situated therein, not substandard, as defined in the law. Appellant asserts the entire validity of the State Hortsing Law, and that all proceedings to condemn thereunder are likewise valid.
“1. Since private property cannot be taken under the power of eminent domain unless it be for a public use; and bearing in mind the purpose and terms of the whole Act, is Sec. 12 thereof (conferring upon the Housing Authority the power of eminent domain) valid against the objection that it violates either of the following provisions of the State Constitution:' of Art. 1, Sec. 3, prohibiting special privileges to individuals not in consideration of public service; of Art. 1, Sec. 17, limiting the taking.of property to a public use; or, Art. 3, Secs. 52, 53, denying the grant of public money or thing of value to individuals without constitutional authority; or Art. 2, Sec. 1, invalid delegation of legislative power; or Secs. 1 and 2, Art. 8, concerning equal and uniform taxation?
“2. Does the use for which appellant Authority seeks to acquire the property in question through the condemnation proceedings, herein, constitute a public use within the meaning of Art. 1, Sec. 17 of the Constitution ?
“3. The pleadings of the Plaintiff allege that the Housing Authority has instituted several condemnation proceedings against the various Plaintiffs and that the Housing Authority in its condemnation petition has not alleged that the individual pieces of property sought to be condemned were located in a slum area, such as is described under Section 3, Subdivision (h), of the .Act, or that said properties and homes are being condemned for the purpose of clearing, replanning and reconstructing an area in which insanitary or unsafe housing conditions exist, for which reasons such condemnation proceedings are invalid. Is the determination of the Housing Authority of the necessity for the taking, acting within the scope of the Housing Act, and particularly Section 12, conclusive upon the Court, or is it a question of fact to be determined in each particular case involving a piece of property sought to be taken?

The Seventy-fifth Congress of the United States passed what is known as the United States Housing Act, Title 42 U.S.C.A. § 1401 et seq., which was approved September 1, 1937. In that act the Congress declared it to be the public policy of the United States to promote the general welfare by employing its funds to assist the several states to alleviate present and recurring unemployment and to remedy the unsafe and insanitary housing conditions and the acute shortage of decent, safe and sanitary dwelling for families of low income that are injurious to the health, safety and morals of the citizens of the nation. The Housing Authorities Law in Texas was passed by the legislature in 1937 at its regular session and was amended at the second called session and approved on November 3, 1937, and in addition to the legislature’s finding and declaration of necessity as quoted in the certificate it defined a housing project as meaning any work' or undertaking “(1) To demolish, clear, or remove buildings from any slum area; such work or undertaking may embrace the adaption of such area to public purposes, including parks or other recreational or community purposes; or (2) to provide decent, safe, and sanitary urban or rural dwellings, apartments, or other living accommodations for persons of low income; such work or undertaking may include buildings, land, equipment, facilities, arid other real or personal property for necessary, convenient, or desirable appurtenances, streets, sewers, water service, parks, site preparation, gardening, administrative, community, health, recreational, educational, welfare, or other purposes; or (3) to accomplish a combination of the foregoing. The term ‘housing project’ also may be applied to the planning of the buildings and improvements, the acquisition of property, the demolition of existing structures, the construction, reconstruction, alteration, and repair of the improvements and all other work in connection therewith.”

“Persons of low income” is defined as meaning families or persons who lack the amount of income which is necessary (as determined by the authority undertaking the housing project) to enable them without financial assistance to live in decent, safe and sanitary dwellings without overcrowding.

Section 8 of the act, defining the powers of an authority, provides that an authority shall constitute a public body, corporate and politic, exercising public and essential governmental functions.

Section 9 provides that an authority shall operate its housing projects in such a manner as to enable it to fix the rentals at the lowest possible rates consistent with its providing decent, safe and sanitary dwelling accommodations and that no authority shall construct or operate any such project for profit or as a source of revenue to the city.

Section 10 of the act provides that such dwelling accommodations shall be rented only to persons of low income and shall be at rentals within the financial reach of such persons and that no person shall be accepted as a tenant if the person or persons who would occupy the dwelling accommodations have an aggregate annual income in excess of five times the annual rental to be charged, except that in certain specified cases the ratio shall not exceed six times the rental.

Section 12 of the act grants to an authority the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for its purpose under the act.

Section 21 authorizes the authority to seek the financial aid of the Federal government in the construction, maintenance and operation of its housing project. A reading of both the Federal and Texas acts demonstrates that the purposes sought are the elimination of slum conditions and the providing of safe and sanitary dwelling accommodations for persons of low income. Therefore, the most important question presented is whether this is a public use or purpose for which a housing authority may be granted the right to exercise the, power of eminent domain.

The question of what is a public use is a question for the determination of the courts; however, where the legislature has declared a certain thing to be for a public use, such declaration of the legislature must be given weight by the courts. In the case of West v. Whitehead, 238 S.W. 976, 978, writ of error refused, the court say: “Where the Legislature declares a particular use to be public use the presumption is in favor of this declaration, and will be binding upon the courts unless such use is clearly and palpably of a private character”.

The United States Supreme Court, speaking through Mr. Justice Holmes, in Block v. Hirsh, 256 U.S. 135, 41 S.Ct. 458, 459, 65 L.Ed. 865, 16 A.L.R. 165, lays down the rule as follows: “No doubt it is true that a legislative declaration of facts that are material only as the ground for enacting a rule of law, for instance, that a certain use is a public one, may not be held conclusive by the Courts. * * * But a declaration by a legislature concerning public conditions that by necessity and duty it must know, is entitled at least to great respect.”

The question as to whether slum clearance and low rent housing are public uses and purposes is a new question in this jurisdiction. The question has been presented to the courts of last resort in the following jurisdictions and has been determined without exception to be a public use: New York City Housing Authority v. Muller, 270 N.Y. 333, 1 N.E.2d 153, 105 A.L.R. 905; Opinion of the Justices, 235 Ala. 485, 179 So. 535; Marvin v. Housing Authority of Jacksonville, 133 Fla. 590, 183 So. 145; Williamson v. Housing Authority of Augusta, 186 Ga. 673, 199 S.E. 43; Krause v. Peoria Housing Authority, 370 Ill. 356, 19 N.E.2d 193; Edwards v. Housing Authority of the City of Muncie, Ind.Sup., 19 N.E.2d 741; Spahn v. Stewart, 268 Ky. 97, 103 S.W.2d 651; State ex rel. Porterie v. New Orleans Housing Authority, 190 La. 710, 182 So. 725; Rutherford v. City of Great Falls, 107 Mont. 512, 86 P.2d 656; Housing Authority of the County of Los Angeles v. Dockweiler, 14 Cal.2d 437, 94 P.2d 794; Wells v. Housing Authority of Wilmington, 213 N.C. 744, 197 S.E. 693; Dornan v. Philadelphia Housing Authority, 331 Pa. 209, 200 A. 834; McNulty v. Owens, 188 S.C. 377, 199 S.E. 425; Knoxville Housing Authority v. City of Knoxville, 174 Tenn. 76, 123 S.W.2d 1085; Chapman v. Huntington, West Virginia Housing Authority, W.Va., 3 S.E.2d 502; Allydonn Realty Corporation et al. v. Holyoke Housing Authority et al., Mass., 23 N.E.2d 665; Stockus et al. v. Boston Housing Authority, Mass., 24 N.E.2d 333; In the Matter of the City of Detroit, a Municipal Corporation for the Acquiring of Land for the Brewster County Housing Site, Mich., 289 N.W. 493, Laret Investment Co., a Corporation, v. Bernard F. Dickmann, Mayor of the City of St. Louis, Mo. et al., Mo.Sup., En Banc, 134 S.W.2d 65; Pasquale Romano et al., Prosecutors, v. Housing Authority of the City of Newark, et al., 123 N.J.L. 428, 10 A.2d 181.

The Constitution of Texas, Article 1, Section 17, provides: “No person’s property shall be taken, damaged or destroyed for or applied to public use without adequate compensation being made, unless by the consent of such person; and, when taken, except for use of the State, such compensation shall be first made, or secured by a deposit of money.”

The question of what is public use is a question for the counts, as was stated in the case of Dallas Cotton Mills v. Industrial Corporation, Tex.Com.App., 296 S.W. 503, 505: “A sine qua non of lawful taking, destruction, or damaging of property for or on account of public use * * * > is that the professed use be a public one in truth. Mere fiat, whether pronounced by the Legislature or by a subordinate agqncy, does not make that a public use which is not such in fact, and the question .(always present) as to the true nature of the use is one of law.”

No broad rule has been laid down in determining public use, but each case has been determined upon its own facts and the surrounding circumstances. The Supreme Court, in the case of Davis et al. v. City of Taylor et al., 123 Tex. 39, 67 S.W.2d 1033, held valid a city ordinance appropriating funds for the Board of City Development, whose duties and purposes should be devoted to the growth, advertisement, development and increase of the taxable values of the city.

The constitutionality of the act in question has been attacked on the ground that such low rent housing project will not be available to the public generally but only to persons of low income. The question of whether or not in a given case the use is a public one depends upon the character and not the extent of such use. West v. Whitehead, supra. In that case it is said: “It depends upon the extent of the right the public has to such use, and not upon the extent to which the public may exercise that right. It is immaterial if the use is limited to the citizens of a local neighborhood, or that the number of citizens likely to avail themselves of it is inconsiderable, so long as it is open to all who choose to avail themselves of it. The mere fact that the advantage of the use inures to a particular individual or enterprise, or group thereof, will not deprive it of its public character. Nor does the public use, if a railroad, depend upon its length, nor whether it is only a branch road, nor that its equipment is to be furnished by another corporation, nor that its stockholders are also stockholders in a corporation which will be primarily benefited by its construction. If a railroad invoking the power of eminent domain is to be a highway, or a common carrier, and open to the promiscuous and uniform use of the public, such facts conclusively make it a public use, and the .extent of the public need and probable use thereof is not a question for the courts, and may not be inquired into. * * * The Legislature, in its discretion, has conclusively determined that a public necessity exists for the exercise of the power of eminent domain to accomplish the purposes of the act in question, and has lawfully delegated that power to a railroad corporation, which is under the law a public highway and common carrier, and which, shorn of the power to discriminate, is open to the use of the public at large. These facts exist as a matter of law, and conclusively constitute the use of the property to be taken as a public use.”

This court upheld the validity of a tax levied by the city for the purpose of establishing and maintaining a municipal band. Goodnight et al. v. City of Wellington, 118 Tex. 207, 13 S.W.2d 353.

We have cited the above Texas cases to illustrate the trend of the decisions in this jurisdiction in the determination of what is a public use.

A review of the cited cases ■ from our jurisdiction demonstrates that this court has adopted a liberal view concerning what is or is not a public use. However, as shown from the expression contained in the case of Borden v. Trespalacios Rice & Irrigation Company, 98 Tex. 494, 86 S. W. 11, 14, 107 Am.St.Rep. 640, “[This court is] not inclined to accept that liberal definition of the phrase ‘public use’ adopted by some authorities, which makes it mean no more than the public welfare or good, and under which almost any kind of extensive business which promotes the prosperity and comfort of the country might* be aided by the power of eminent domain”. It was decided in that case that the appropriation of water by an irrigation district was a public use, even though the district only served those living within the district and not all of the public, notwithstanding the fact that certain ones of those living in the district to whom the water would he available might be postponed to those with whom contracts were already made. The public use arose out of the general benefit to the state through the reclamation of arid lands for agriculture by irrigation, which would otherwise be lost to the state.

The declaration of the legislature in the instant enactment, as all authorities .agree, is entitled to great weight. Can we •say that such conditions do not exist? Can we say as a matter of law that insanitary ■ or unsafe dwelling accommodations or overcrowding in such dwellings do not •cause an increase in and spread of disease and crime and constitute a menace to the health, safety, morals and welfare of the residents of the state? Common knowledge aids prima facie findings of the legislature and we are unable to say as a matter of law that such findings are manifestly wrong.

The power of eminent domain has been validly exercised in this state by (a) corporations may exercise the power in the maintenance and operation of drainage • ditches, canals and flumes, Article 1302, R.C.S.192S, Sec. 31; (b) cities may exercise the power to open or widen a street, to construct water mains, supply reservoirs, sewers, to establish hospitals or pest houses, to construct, maintain and operate municipal airports, Art. 1107, R.C.192S, Vernon’s Ann.Civ.St. art. 1107; (c) a cor■poration chartered for the purpose of con.structing water works or furnishing water supplies to a city or town may exercise the power to acquire the private property .-necessary for the construction of supply reservoirs, or standard pipes for .water works, Art. 1433, R.C.S.1925; (d) gas, companies, electric light and power companies are given the power to condemn lands, right-of-way easements and property to erect their lines, Art. 1436, R.C.S.1925; (e) .pipe line companies may condemn for the purpose of laying their lines for the transpórtation of oil, gas, salt, brine, etc., Arts. 1495-1497, R.C.S.1925, Vernon’s Ann. Civ.St. arts. 1495-1497; (f) a toll road corporation is given the power for the purpose of securing the right-of-way for its road, Art. 1463, R.S.1925. The legislature has conferred the power of eminent domain in many other instances, but the above are the ones which have been held to have been validly conferred. The power of eminent domain has been held to have been validly conferred because the purposes were affected with a public interest.

We are thoroughly convinced that the use to which the housing projects will be devoted is a public one. Therefore it follows that the grant in the law of the power of eminent domain does not violate Article 1, Section 17, of the Constitution of Texas.

The next inquiry as disclosed by the certificate is the contention that the act violates Article 1, Section 3, of the Constitution of Texas. Section 3 is as follows : “All free m.en, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

The cases cited above from other jurisdictions having similar provisions in their constitutions as we have in ours overrule this attack. The primary purpose of the Housing Authorities Law is to eliminate slums, from which the entire community derives a benefit through the elimination of conditions giving rise to crime and disease. As the state at large derives a benefit from the reclamation of arid lands through irrigation, so will the state at large derive a benefit through the elimination of conditions giving rise to crime and disease.-

The legislature in the instant law under attack has made no attempt to grant special privileges to any man or set of men, but has made a . reasonable classification of the members of the public and has provided that such low rent dwelling accommodations shall be available to all members of tire public who presently or in the future. faü within the classification made by the legislature. Such class legislation has been uniformly upheld in this state, provided there . is . any. reasonable basis which would justify the classification, Clark v. Finley, 93 Tex. 171, 54 S.W. 343; Union Central Life Insurance Company v. Chowning, 86 Tex. 654, 26 S.W. 982, 24 L.R.A. 504; Hurt v. Cooper, 130 Tex. 433, 110 S.W.2d 896 (chain store tax).

It necessarily follows from the above holding, that the law is not violative of Sections 52 and 53 of Article 3 of the Constitution which deny the authority of the legislature to grant public money or thing of value to individuals without constitutional authority.

Our next inquiry is the contention that the law is violative of Section 1 of Article 2 of the Constitution. Section 1 is as follows: “The powers of the Government of the State of Texas shall be divided into three distinct departments, each of which shall be confided to a separate body of magistracy, to wit: Those which are Legislative to one; those which are Executive to another, and those which are Judicial to another; and no person, or collection of persons, being of one of these departments, shall exercise any power properly attached to either of the others, except in the instances herein expressly permitted.”

An examination of the Housing Authorities Law will show that in connection with the duties devolving upon the housing authority certain definitions are given and certain standards laid down for the guidance of the authority in the exercise of its powers and the performance of its duties.

For instance, “slum” is defined as an area where dwellings predominate which by reason of dilapidation, over-crowding, faulty arrangement or design, lack of ventilation, light or sanitary facilities or any combination of these factors are detrimental to safety, health and morals. Sec. 3(h).

“Persons of low income” are defined as families or persons who lack the amount of income which is necessary (as determined by the authority) to enable them without financial assistance to live in decent, sáfe and sanitary dwellings without overcrowding. Sec. 3(j).

The governing body of the city, in determining whether dwelling accommodations are unsafe or insanitary, may take int0 consideration the degree of overcrowding; percentage of land coverage, the light:, air space and access available to the inhabitants of such accommodations, the s¡ze an(j arrangement of the rooms, the sanitary facilities and the, extent to which Such conditions exist in such buildings which endanger life or property by fire or other causes. Sec. 4.

Section 9 provides that the authority shall fix rentals at no higher rates than it shall find to be necessary in order to produce revenues which (together with all other available moneys, revenues, income and receipts of the authority from whatever source derived) will be sufficient, (a) to pay as the same may become due .the principal and interest on the bonds of the authority; (b) to meet the cost of and to provide for the maintaining and operating of the projects (including cost of insurance) and administration expenses; and (c) to create during not less than six years immediately succeeding its issuance of bonds a reserve sufficient to meet the largest principal and interest payments which will be due on such bonds in any one year thereafter.

Section 10 provides that with respect to rentals and tenant selection the authority may rent dwelling accommodations only to persons of low income and at rentals within the financial reach of such persons and that it may rent to a tenant dwelling accommodations consisting of the number of rooms (but no greater number) which is deemed necessary to provide safe and sanitary accommodations to the proposed occupants without overcrowding, and that it shall not accept any person as a tenant if the person or persons who would occupy the dwelling have an aggregate annual income in excess of five times the annual rental, except that in case of families with three or more minor dependents such ratio shall not exceed six to one. It is further provided that in .computing the rent for the purpose of tenant selection there shall be included in the rental the average rental cost to the occupants of heating, water, electricity, gas, cooking range and other necessary services or facilities whether or not the charge for such services and fees is in fact included in the rental.

Section 13 provides that all housing projects shall be subject to the planning, zoning, sanitary and building laws, ordinances and regulations applicable to the locality in which the housing project is situated and that in the planning and location of such a project the authority shall take into consideration the relationship of the project to any larger plan or long range program for the development of the area in which the authority functions.

Considering the broad policy and purpose of the Housing Authorities Law and taking into consideration the varying conditions throughout the state to which the law must apply, we conclude that the legislature has furnished a sufficient guide for the housing authority. Our decisions from our own jurisdiction which deal with the subject under consideration may be divided in the following classifications:

(1) Where the legislature because of the nature of the subject of legislation cannot practically and efficiently exercise such powers, the power given to the Railroad Commission to fix rail rates, to determine questions of public convenience and necessity relating to the granting of permits of trucks to operate over the highway or related to permission granted to drill oil wells. Trimmier v. Carlton, 116 Tex. 572, 296 S.W. 1070; Kinney v. Zimpleman, 36 Tex. 554.

(2) It is not an invalid delegation of legislative authority to grant to an administrative body the right to make rules to put into effect completed laws (the authority granted to the Sanitary Commission to fix quarantine lines), Smith v. State, 74 Tex.Cr.R. 232, 168 S.W. 522; Serres v. Hammond, Tex.Civ.App., 214 S.W. 596; Moody v. Jones, Tex.Civ.App., 9 S.W.2d 446.

(3) The legislature may validly delegate the authority to find facts from the basis of which there is determined the applicability of the law; that is, an administrative body may be given the authority to ascertain conditions upon which an existing law may operate (the authority given railroad commissions, public utility commissions, livestock and sanitary commissions, public health boards and fish and game commissions). Tuttle v. Wood, Tex.Civ.App., 35 S.W.2d 1061; State v. St. Louis, Southwestern Railroad, Tex.Civ. App., 165 S.W. 491; City of San Antonio v. Zogheib, 129 Tex. 141, 101 S.W.2d 539; Brazos River Conservation & Reclamation District v. McCraw, 126 Tex. 506, 91 S.W.2d 665.

(4) In the delegation of legislative authority the legislature must set up standards, leaving to selected municipalities the making of those rules and the determination of facts to which legislative policy is to apply. Such standards may be broad where'conditions must be considered which cannot be conveniently investigated by the legislature. (Illustrative of this is the zoning law). Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475.

(5) The power to fix rates within prescribed limits to cover specified items of cost may be delegated. Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629, 637; Burgess v. American Rio Grande Land & Irrigation Company, Tex.Civ.App., 295 S.W. 649.

(6) The power to determine the question of necessity to take particular 'land for public use under eminent domain may be validly delegated. Crary v. Port Arthur Channel & Dock Co., 92 Tex. 275, 47 S.W. 967.

The problem seems to be in each case to apply the foregoing principles to the facts of the particular case and to determine whether or not invalid delegation of legislative authority has been made. Applying the principles announced in the cases cited, we are of the opinion that the housing law under attack is not violative of Section 1 of Article 2 of the Constitution of Texas. Moreover, like attacks have been made in other jurisdictions and in each instance overruled. Spahn v. Stewart (Ky.), supra; Wells v. Housing Authority of the City of Wilmington (N.C.), supra; Dornan v. Philadelphia Housing Authority (Pa.St.), supra; Chapman v. Huntington, West Virginia Housing Authority (W.Va.), supra; Williamson v. Housing Authority of Augusta (Ga.), supra; Krause v. Peoria Housing Authority (Ill.), supra; Porterie v. New Orleans Housing Authority (La.), supra; Knoxville Housing Authority v. Knoxville (Tenn.), supra; Rutherford v. City of Great Falls (Mont.), supra.

Our next consideration will be devoted to the contention that the act is violative of Sections 1 and 2 of Article 8 of the Constitution concerning equal and uniform taxation.

In addition to the legislative declaration that the clearance of slums and construction of low rent dwelling accommodations are public uses, the act provides that an authority shall constitute a public body corporate and politic, exercising public and governmental purposes, and that no housing authority shall construct and operate any such project for profit or as a source of revenue to the city. The act further provides: “The property of an authority is declared to be public property used for essential public and governmental purposes and such property and an authority shall be exempt from all taxes and special assessments of the city, the county, the State or any political subdivision thereof.” Section 22.

That the act does not violate these sections of the Constitution is well demonstrated by the case of San Felipe De Austin v. State, 111 Tex. 108, 229 S.W. 845. That the property belonging to a housing authority may be properly exempt under Section 2 of Article 8 of the Constitution is illustrated in the case of Bexar-Medina-Atascosa Counties Water Improvement District No. 1 v. State, Tex.Civ.App., 21 S.W.2d 747. Similar attacks were made upon the Housing Authorities Laws in other states in which the law has been upheld and in each instance the attack has failed. See the cases from the Supreme Courts of the following states: Florida, Montana, Pennsylvania, West Virginia, Georgia and others.

It is next contended that the condemnation proceedings of the Housing Authority were invalid because no allegations were made that the property sought to be condemned was situated in a slum area as defined under Section 3, Subdivision (h), of the act. These contentions are presented in the third question, above quoted, of the certificate. Section 12 of the Housing Authorities Law provides that: “An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for its purposes”. The law is well established in this state that where the power of eminent domain is granted, a determination by the condemner of the necessity for acquiring certain property is conclusive in the absence of fraud. The rule is well stated in the case of West v. Whitehead, supra. In cases where die act of the legislature has apparently restricted the right to condemn to cases of necessity the courts have construed the grant of the power to mean that the condemner may condemn such property as it deems necessary for its purposes. Crary v. Port Arthur Channel & Dock Co., supra. In the case of Joyce v. Texas Power & Light Co., Tex.Civ.App., 298 S.W. 627, 629, it is said:

“In delegating the power of eminent domain the Legislature, in article 3264, evidently intended to prescribe what facts must be set out in the statement in writing, and determined for itself every question as to necessity and public use, and left, only to the courts, and the procedure prescribed, the determination of the amount to be paid in order to acquire the right to' the use of the property. The rule seems to be that only where the Constitution or the legislative act limits the right to take-private property to cases of necessity, that the question of necessity becomes an issue to be pleaded or proved. In such cases, the issue of necessity for the taking becomes so by reason of express provision by law. In such case the question of necessity becomes a judicial one. * * *
“In Mangan v. Texas Transportation Co., 18 Tex.Civ.App. 478, 44 S.W. 998, Judge Neill quotes from 2 Dillon, Mun.Cor. (4th Ed.) § 600, as follows:
“ ‘Of the necessity or expediency of exercising the right of eminent domain in the appropriation of private property to public uses, or the corporate body or tribunal' upon which it has conferred the power to-determine the question, is conclusive upon the courts, since such a question is essentially political in its nature and not judicial.’
“For other cases'we have reviewed, without quoting therefrom at length, see: Borden v. Irrigation Co., 98 Tex. 494, 86 S.W. 11 [107 Am.St.Rep. 640], Croley v. Ry. Co. (Tex.Civ.App.) 56 S.W. 615; [Mississippi & R. River] Boom Co. v. Patterson, 98 U.S. 403, 25 L.Ed, 206; Palmer v. Harris County, 29 Tex.Civ.App. 340, 69 S.W. 229, in which the court held that the trial court correctly refused to submit to the jury the question of the necessity of' taking the land; Cane Belt Ry. Co. v. Hughes, 31 Tex.Civ.App. 565, 72 S.W. 1020, in which the reason for the rule stated is discussed; Imperial Irrigation Company v. Jayne, 104 Tex. 395, 138 S.W. 575, Ann.Cas.1914B, 322, in which it is said:
“ ‘When the use is public, the necessity ■or expediency of appropriating any particular property is not a subject of judicial cognizance.’ ”

The reason for the rule seems to be that: “If different courts and juries were allowed to pass on the necessity or advisability of ■condemning each tract out of the many which go to make up a right of way for a railway line, straight courses from point to point, with the consequent lessening of mileage, would in many, if not all, cases he impossible to secure. So in the case of ■depot grounds. One jury might hold, on competent evidence, that the land in question was not necessary to the purposes of the railroad. Another might render a like verdict as to any other tract sought to be subjected to its uses, and by such a course the company could be excluded altogether.” Cane Belt Railway Co. v. Hughes, 31 Tex.Civ.App. 565, 72 S.W. 1020.

To the same effect are Tarrant County v. Shannon, 129 Tex. 264, 104 S.W.2d 4; McInnis v. Brown County Water Improvement District, Tex.Civ.App., 41 S.W.2d 741; Bobbitt v. Gordon, Tex.Civ.App., 108 S.W.2d 234.

But it is argued by the property owner that the Housing Authorities Law has not declared the construction and maintenance of a low rent housing project a public use and therefore the legislature has not the authority to grant the Authority the power of eminent domain. Stated in another way, it is argued that the Housing Authority cannot condemn property unless such property is in a slum area. Under Section 2 of the law, paragraph (c), it is declared that “The clearance, replan-ning, and reconstruction of the areas in which insanitary or unsafe housing conditions exist and the providing of safe and sanitary dwelling accommodations for persons of low income are public uses and purposes for which public money may be spent and private property acquired and are governmental functions of State concern”. The legislature did not say that the clearance of a slum and construction of a low rent housing project is a public use and purpose, nor did the legislature say that slum clearance and a low rent housing project in the same place is a public use and purpose. It is apparent from the act that the legislature intended to in-elude both slum clearance and the providing of safe and sanitary dwelling accommodations for persons of low income to be public uses. The definition of a housing project, Section 3 (i), shall mean any work or undertaking (1) to demolish, .clear or remove buildings from any slum area. Such work or undertaking may embrace the adaption of such area to public purposes, including parks or other recreational or community purposes, or (2) to provide decent, safe and sanitary urban or rural dwellings, apartments, or other living accommodations for persons of low income. Such work or undertaking may include buildings, land, equipment, facilities and other real or personal property for necessary convenient or desirable appurtenances, streets, sewers, water service, parks, site preparation, gardening, administrative, community, health, recreational, educational welfare or other purposes or (3) to accomplish a combination of the foregoing. The term “housing project” also may be applied to the planning of the buildings and improvements, the acquisition^ property, the demolition of existing structures, the construction, reconstruction, alteration and repair of the improvements and all other work in connection therewith. Such a definition includes either slum clearance or the construction of low rent housing or a combination of such two functions. The power of eminent domain was conferred on an authority in the following language: “An authority shall have the right to acquire by the exercise of the power of eminent domain any real property which it may deem necessary for its purposes under this Act after the adoption .by it of a resolution declaring that the acquisition of the real property described therein is necessary for such purposes.” Section 12.

Thus the legislature does not limit the exercise of the power to property situated in a slum area. A slum area is defined in the Housing Authorities Law under Section 3(h) as follows: “‘Slum’ shall mean any area where dwellings predominate which, by reason of dilapidation, over-crowdingj faulty arrangement or design, lack of ventilation, light, or sanitary facilities, or any combination of these factors, are detrimental to safety, health, and morals.”

Under Section 8 of the act, which defines certain powers of the authority, there is included. paragraph (f), which relates to the duty of the authority to make study and investigation into houses and living conditions and into the methods and means of improving such conditions. In connection ■ with the study the authority is empowered to determine where slum areas exist or where there is a shortage of decent, safe and sanitary dwelling accommodations for persons of low income, and to make recommendations and cooperate with the city, county and state in clearing up such conditions.

It is our construction of the act that the authority may construct a housing project in an area not found to be a slum area. The reasons, in addition to the construction of the statute, are fully demonstrated in the case of Chapman v. Huntington, West Virginia Housing Authority, supra. In that case it is said [3 S.E.2d 513]:

“As a third proposition, plaintiff urges that the proposed development is unauthorized by the West Virginia statute because (a) the statute does not authorize housing projects apart from slum clearance, and (b) the proposed development is not based upon proper investigation with opportunity to interested citizens to be heard. True, the act does not authorize housing projects apart from slum clearance. If it did, there would indeed be grave doubts as to its constitutionality.

“The amended bill in the instant case, however, does not disclose that the housing projects are made without regard to slum clearance. Its allegations to that effect, as -we have seen, are based upon the unsound proposition that the housing project must be built on the same ground where the slum clearance is made. Nothing in the United States Housing Act or the West Virginia statute would indicate this requirement. Such requirement, if indicated, would hardly be reasonable, because, as suggested before, slums may be located in sections of a city where it would not be feasible or proper to erect new projects.”

We conclude, therefore, that it is not necessary for the property sought to be condemned to be situated within a slum area.

We are of the opinion that the law is not' violative of the constitutional provisions which have been urged against it. Our discussion discloses the answers which we think should be made to the questions propounded to us by the Court of Civil Appeals. Hence, we shall not restate them.

The writer is indebted to the late Chief Justice Cureton for the use of copious notes made by him while he retained the case until his untimely passing. The notes do-not disclose that a conclusion had been reached, but are rich in historical and legal research and have been of great benefit to the writer.

Opinion adopted by the Supreme Court.


author: MURRAY, Justice.

text:
    SMITH v. SURTEES.
    No. 10746.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 7, 1940.
    Rehearing Denied Sept. 18, 1940.

      Hayden C. Covington, of Brooklyn, N. Y., and Walter F. Schwartz, of San Antonio, for appellant.
    Joe Burkett, of San Antonio, for appel-lee.
   MURRAY, Justice.

This suit was instituted by Marshall Sur-tees against Elijah Smith seeking to recover damages alleged to have been sustained by him to his character and reputation as a result of Smith’s writing to J. L. Lytle Company the following postal card, to-wit: “4-22-38. Gentlemen: I understand that a certain Marshall Surtees collected quite a bit of hail insurance lately. .If your company was the victim it would be well for them to contact residents of that section to determine if hail or the high winds for 48 hours were the cause of damage. (Signed) A friend.”

Judgment was rendered in favor of Sur-tees upon the following special findings ,of the jury, to-wit:

1. The postal card in question reasonably conveyed to the ordinary reader thereof the idea that Surtees had wrongfully cheated and defrauded the insurance company out of the hail insurance money and 'that there was no hail on plaintiff’s crop, and that any damage to his crop was caused by high winds and not hail.

2. The writing on the postal card and the information therein conveyed was not true.

3. Elijah Smith, at the time he wrote the postal card, did not believe, in good faith, that Surtees had fraudulently collected hail insurance money and that there was no hail on his crop.

4. Elijah Smith was actuated by actual malice in the writing and mailing of the postal card.

5. Three Hundred and Seventy-five ($375) Dollars would fairly and adequately compensate Surtees for the damages sustained by him by reason of the writing of the postal card.

From this judgment Elijah Smith has prosecuted this appeal.

Appellant’s first six assignments of error relate to alleged improper argument made by appellee’s counsel to the jury. During his closing argument counsel for appellee made the following statement to the jury, to-wit: "He (Marshall Surtees) must come and go in that neighborhood all these years and be confronted with the fact that his uncle charged him with defrauding the insurance company because of hail damage. Did that embarrass him? Would it embarrass you for some man to make that accusation against you? Would it embarrass you to go among your neighbors with that thing staring you in the face. You could see his disposition on the witness stand. He is a man, apparently, who has not a great deal of education.”

No objection was made to this argument at" the time it was made, and the question is raised for the first time in appellant’s motion for a new trial. The bill of exception does not show in what connection the argument was made. It is attacked by appellant as being prejudicial.

Apparently in making the argument counsel was discussing whether or not the writing on the postal card was libelous. This is a matter that can easily be ascertained from a mere reading of the same. It, in effect, tells the insurance company that it has been the victim of a fraud which an investigation would disclose. Appellant signed the postal card anonymously, indicating he knew he was doing wrong in writing the card. The judgment was only for the sum of $375. The case of Rio Grande, E. P. & S. F. Ry. Co. v. Dupree, Tex.Com.App., 55 S.W.2d 522, 526, is very much in point. There the court said: “As to the first objection, (a) above, we think the argument is not of such a character as would be calculated to cause the jury to forget their oaths and duties, and return a verdict regardless of the facts and the law. Under our system lawyers are allowed some latitude to engage in oratory. Of course they must stay within the record, and must not attempt to appeal to prejudice, passion, or sympathy. On the other hand, an attorney lias a right to use such legitimate argument as will impress the jury with the seriousness and importance of the case. We think that, when considered in the light of the entire record, the argument complained of is not subject to the objection that it constitutes an improper appeal to prejudice, passion, or sympathy.”

There is a line of cases holding that where an attorney in his closing argument in substance asks a jury, in determining the amount of damages, to put themselves in the shoes of the plaintiff and award him the amount of damages that they would want if they had suffered the injuries themselves, the case will be reversed and especially where the judgment is excessive. Texas Coca Cola Bottling Co. v. Lovejoy, Tex.Civ.App., 112 S.W.2d 203, and cases therein cited.

The argument made in the case at bar is quite different from the argument in those cases. Although appellant’s counsel objected to much of the argument, he did not object to' this argument at the time it was made. It occurs to us that it was nothing more than an inquiry of the jury as to how they would like to have such a charge made against them, and if an objection had been made at the time and the jury told to disregard the argument, all harmful effect would have been removed.

Appellant’s next five assignments as-above stated, also relate to alleged improper arguments made by appellee’s counsel to the jury. The complaint being that such arguments were not supported by the evidence, and were prejudicial.

We have carefully examined the record and conclude that the arguments complained of were supported by evidence and that counsel was not out of the record when he made these arguments.

In his six assignments of error appellant complains because counsel for ap-pellee allegedly argued that “the jury should put themselves in the position of the insurance company in reaching a verdict, which company had investigated the matter and found that there was no truth in the contents of the card.” This assignment .is based upon Bill of Exceptions No. 6, and the bill shows a different argument from the one set out in the assignment. We overrule the first six assignments of error.

Appellant next complains because the trial court, in instructing the jury as to what elements they could consider in arriving at the amount of damages inquired about in Issue No. 5, told the jury, in effect, they could consider physical suffering, if any, when there was no evidence whatever of physical suffering as a result of sending of the postal card.

There is no evidence in the record that appellee sustained any physical suffering as a result of the writing of the postal card. It is error to authorize a jury to consider an item of damage which is not supported by any evidence. Abbott v. Andrews, Tex.Com.App., 45 S.W.2d 568; Northern Texas Traction Company v. Brannon, Tex.Civ.App., 61 S.W.2d 156; Pure Foods Products, Inc., v. Gordon Gibson, Tex.Civ.App., 118 S.W.2d 925.

By his thirty-first assignment of error appellant contends that the communication between appellant and the insurance company was a qualifiedly privileged communication, and the evidence failing to show actual or express malice appellant should have been given an instructed verdict in his favor. We overrule this contention. The communication was not privileged. Smith was not employed by the insurance company; he did not own any interest in the company; the insurance company did not ask him for a report on the matter. Smith simply volunteered this information to -the company. Furthermore the evidence was sufficient to raise the issue of actual malice.

By his thirty-second assignment of error appellant contends that the postal card on its face was not libelous. We overrule this contention. The import of the- language used is that appellee had fraudulently collected a large sum of money from the insurance company. The communication was libelous per se.

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


author: LOONEY, Justice.

text:
    SOUTHWEST DAIRY PRODUCTS CO. v. LITTRELL.
    No. 12907.
    Court of Civil Appeals of Texas. Dallas.
    July 27, 1940.
    Touchstone, Wight, Gormley & Touchstone and James J. Sheerin, all of Dallas, for appellant.
    James S. Skinner, of Dallas, for appel-lee.
   LOONEY, Justice.

This suit originated in the justice court, was appealed to the county court, from whose judgment this appeal was taken.

In October, 1937, W. F. Littrell entered the service of Southwest Dairy Products Company, as a distributor of its milk, butter, etc., to customers along a certain route in the City of Dallas. Before beginning service with the Company, Littrell was required to deposit $100, as indemnity against loss to the Company, by reason of certain conduct on the part of Littrell. The employment was terminated in January, 1938, after which, Littrell filed this suit to recover the cash deposit; also $37.22, alleged improper deductions from his salary, and $57.66, balance due on salary.-

The Company answered by general denial and a special plea, alleging that the $100 cash deposit was intended as indemnity against such losses as the Company might sustain by reason of broken milk bottles, bottles and products not returned, and the failure of Littrell to collect from customers, accounts properly chargeable to him; contending that, after deducting the amount of losses from the $100 deposit and the amount due Littrell as salary, the company was due him only $28.94, which was tendered, and was followed by being deposited in the registry of court.

The case was tried to a jury and, based upon its verdict, the court rendered judgment against the Company, in favor of Littrell, for the sum of $173, from which this appeal was taken.

Appellant assigns error on the refusal of the court to direct a verdict in its favor, also in excluding certain evidence. These assignments are overruled. Appellant also assigns error on the .refusal of the court to grant its motion for a new trial, based on the ground that, the verdict is excessive and against the great weight and preponderance of the credible evidence.

We sustain the latter assignment. As the case will be reversed and remanded for further proceedings, we refrain from saying more than that, .appellee’s testimony, relied upon exclusively for recovery and, obviously, upon which the verdict of the jury was based, in our opinion, is entirely too contradictory, improbable and inconclusive to warrant a reasonable belief in the existence of the facts essential to recovery, at least in the amount, as found by the jury.

We are not unmindful of the rule that, verdicts should be upheld, if supported by any evidence; yet, after carefully reading the entire statement of facts, and the original documents accompanying same, we could not affirm the judgment without surrendering our intelligence to a mere formula; this, we are not content to do; therefore, without further comment on the evidence, reverse the judgment below and remand the cause for further proceedings.

Reversed and remanded.


author: SMITH, Chief Justice.

text:
    LABANSAT et al. v. CAMERON COUNTY et al.
    Motion No. 14032.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 28, 1940.
    H. B. Galbraith, of Brownsville, for plaintiffs.
    J. T. Canales, C. S. Eidman, Jr., J. W. Wiech, Wm. Scanlan, and A. K. Black, all of Brownsville, for defendants.
   SMITH, Chief Justice.

Cameron County and others, as defendants, recovered judgment against Ana Lab-ansat and others, as plaintiffs, in the district court of the 103rd district of Cameron County. The judgment was rendered at a term of court which could not by law, and did not in fact, continue in session more than eight weeks. The plaintiffs filed a motion for new trial which was overruled on the day the term ended, to-wit: June 8, 1940, but plaintiffs did not file their appeal bond until 21 days thereafter, on to-.wit: June 29, 1940.

Thereafter, on August 6, plaintiffs tendered the record in the case for filing in this court, but the clerk refused to file the same, for the stated reason that it appeared therefrom that the appeal bond was filed one day too late. Plaintiffs thereupon, on August 10, filed their motion for leave to file the record and prosecute an appeal in this court. Plaintiffs concede that the appeal bond was filed one day after the expiration of the time prescribed by statutes for such filing. Art. 2253, R.S.1925, as amended, Act 1927,. 40th Legislature, p. 21, Ch. 15, § 1, Vernon’s Ann.Civ.St. art. 2253.

Although it may be conceded that mov-ants set up reasons for the delayed filing of the appeal bond which would ordinarily justify exercise of discretion in aid of the right of appeal, yet the motion must nevertheless be denifed, because no discretion is lodged in this court to 'excuse a delay, even though of only one day, in filing appeal bonds below. For “The decisions are numerous and uniform tp the effect that if an appeal bond is not filed within the time prescribed the Court of Civil Appeals acquires no jurisdiction, and is without power to acquire it.” 3 Tex.Jur. § 227; El Paso & N. E. R. Co. v. Whatley, 99 Tex. 128, 87 S.W. 819.

Motion denied.


author: YOUNG, Justice.

text:
    HOUSING AUTHORITY OF CITY OF DALLAS v. HIGGINBOTHAM et al.
    No. 12951.
    Court of Civil Appeals of Texas. Dallas.
    July 20, 1940.
    H. P. Kucera, City Atty., and Scurry & Scurry, all of Dallas, for appellant.
    Joe A. Worsham, Allen Wight, E. A. Belsterling, and Irion Worsham, all of Dallas, for appellees.
    Samuels, Foster, Brown & McGee, of Fort Worth, amici curise.
   YOUNG, Justice.

After submission of this cause, it was deemed expedient to certify to the Supreme Court certain questions of law therein presented. Our highest tribunal has answered such inquiries by opinion and judgment, of date June 26, 1940, 143 S.W.2d 79 (not yet reported [in state report]) which decree is now final. The questions so certified appear in Judge Slat-ton’s discussion of the case, and need not be restated. In substance, the Supreme Court has concluded — and it is properly our conclusion: (1) That the Texas Housing Authorities Law, Vernon’s Ann. Civ.St., Art. 1269k, is valid, and is nót violative of the constitutional provisions which have been urged against it; (2) that the use for which appellant Housing Authority seeks to acquire the property in question through the condemnation proceedings herein constitutes a public use, within the meaning of Art. 1, Sec. 17, of the Constitution, 'Vernon’s Ann.St.; (3) that the determination by the Housing Authority of the necessity for the taking of plaintiffs’ lands, acting within the scope of the Housing Act, and particularly Sec. 12, is conclusive, upon the courts; and (4) that appellant’s condemnation petition is sufficient, though not alleging that the properties sought to be condemned were located within a slum area, or that such properties were being condemned for the purpose of clearing, replanning, and reconstructing an area in which insanitary or unsafe housing conditions exist.

In consequence of the foregoing, it would also follow, that the allegations of appellant’s said petition were sufficient to invoke the jurisdiction of the County Court at Law as a proceeding in condemnation. Art. 3264, R.S., Vernon’s Ann. Civ.St. art. 3264.

Appellees’ remaining objections to the legal measures instituted by the Housing Authority should be noted. They contend, in effect, that the restriction of the project in question to colored families constitutes an unwarranted discrimination against other members, of the public. Aside from the anomaly presented in the point being raised by Higginbotham and associates as a matter pf equity, the evidence discloses the construction and operation by appellant, in the City of Dallas, of similar dwelling units available to white persons of low income. Where substantially equal facilities are to be furnished all members of the public coming within the classification of the act, no constitutional rights are infringed. State ex rel. Gaines v. Canada, 305 U.S. 337, 59 S.Ct. 232, 83 L.Ed. 208; Id., 344 Mo. 1238, 131 S.W.2d 217; Southern Kansas Ry. Co. v. State, 44 Tex.Civ.App. 218, 99 S.W. 166.

Finally, it is now evident that the Dallas Housing. Authority has, at all times, been proceeding under a valid law, relative to the subject matter here involved; and the requisite steps having been taken by appellant in the County Court of Dallas County at Law No. 2 for the condemnation of the properties in question, prior to the filing of the suit for injunction, said County Court acquired sole jurisdiction and was the tribunal competent to hear and determine all questions sought to be litigated in the application for injunction. Because of this, the district court was without power to entertain the instant suit. The trial court’s action under review is therefore reversed, and judgment is here rendered for appellant, dissolving the injunction.

Reversed and rendered.


text:
    WOOD, Sheriff, v. ANDERSON, County Judge, et al.
    No. 10926.
    Court of Civil Appeals of Texas. San Antonio.
    Aug. 30, 1940.
    Rehearing Denied Sept. 18, 1940.
    John H. Wood, Jr., and Weber & Wolfe, all of San Antonio, for appellant.
    John R. Shook, S. Benton Davies, W. Pat Camp, and T. H. Ridgeway, all of San Antonio, for appellees.
   PER CURIAM.

This suit was instituted b'y Will W. Wood, Sheriff of Bexar County, Texas, against Charles W. Anderson, County Judge, and Robert F. Uhr, James W. Donnell, S. H. (Sam) Anderson and R. W. Stappenbeck, County Commissioners, in their respective official capacities, seeking among other things a temporary injunction and on final hearing a permanent injunction restraining the above-named County Judge and County Commissioners from attempting to assume authority to appoint, direct and discharge the janitors, elevator operators and engineers, and other persons employed to care for the courthouse of Bexar County, and also for similar in june-tions with reference to the Bexar County Highway Patrol as county traffic officers provided for by Article 6699b, Vernon’s Texas Annotated Civil Statutes. The plaintiff below also prayed that the district court set aside and hold for naught an order passed by' said Commissioner’s Court on May 17, 1940, whereby the Commissioner’s Court undertook to take from the Sheriff the power to employ, direct, control and discharge the janitors, elevator operators and engineers, and to claim for itself this power. Plaintiff also asked that all subsequent orders made in furtherance of this purpose be set aside.

A temporary restraining order was granted but upon ai hearing a temporary injunction was refused and from this order Will W. Wood has appealed.

It was conceded at the trial that the Sheriff should have the employment, direction, control and discharge of the jail guards and matrons employed in the operation of the county jail so they need not be further mentioned.

This suit presents two questions, to-wit:

First. Does the Commissioners’ Court or the Sheriff of a county have the legal right to employ, direct, control and discharge the court house janitors, elevator operators and engineers?

Second: Does the Commissioners’ Court or the Sheriff of a county have the legal authority to employ, direct, control and discharge the Highway Patrol officers provided for in Article 6699b Vernon’s. Civil Statutes ?

We.are of the opinion that the Sheriff and not the Commissioners’ Court has the right to employ, direct, control and discharge the courthouse janitors, elevator operators, engineers, and other necessary employees, engaged in caring for the courthouse.

The office of Sheriff is one of great antiquity dating back at least to the time of Alfred, King of England. Under the common law the Sheriff was the custodian of the county (custodian comitatus) and the chief executive officer. He today has all such powers as he exfercised at common law unless such powers have been taken away from him by expressed constitutional or statutory provisions. 11 Tex.Jur. § 54 p. 582.

The statutes not only do not take from the Sheriff his duties as custodian of the courthouse, but in addition to his common-law duty in this respect, Article 6872, R. C.S., expressly makes the Sheriff the custodian of the courthouse in ’the following-language: “Sheriffs shall have charge and control of the courthouses of their respective counties, subject to such regulations as the commissioners court may prescribe; and the official bonds shall extend to and include the faithful performance of their duties under this article.”

It is true that Article 1603, R.C.S., provides that the County Commissioners’ Court of each county, as soon as practicable after the establishment of a county seat, or after the removal from one place to another, shall provide a courthouse and jail for the county, and offices for county officers at such county seat, and keep the same in repair; and that Article 2351, subdivision 7, R.C.S., provides that the “commissioners court shall * * * Provide and keep in repair court houses, jails and all necessary public buildings”but these provisions in no way affect the sheriff’s charge and control over the courthouse. It .is one thing to construct and repair a building and another thing to have the charge and control of the building. It will be noted that not only is the Sheriff placed in charge and control of the courthouse, but he is made responsible on his official bond for the faithful discharge of this duty. Art. 6872, supra.

If Arts. 1603 and 2351, supra, should be construed as giving the charge and control of the courthouse to the Commissioners Court,'then the language contained in Art. 6872, supra, would become meaningless.

There seems to be no decision in Texas construing these statutes, but the case of Dahnke v. People, 1895, 57 Ill.App. 619, affirmed 168 Ill. 102, 48 N.E. 137, 140, 39 L.R.A. 197, seems to be very much in point. There the provisions to be construed were very similar to those here to be construed, the court said in part: “Hence it would seem to follbw that, while the county board is entitled to the general care and custody over the ownership of the real estate belonging to the county so far as to hold the title thereto, and preserve the evidence of title, and so far as it is necessary to erect and keep in repair the buildings thereon, yet, after the particular court rooms in a court house have been provided for the judges, the possession thereof is in the hands and under the control of the courts themselves, and the care and custody thereof rightfully belong to the sheriff, as the executive officer of the courts.”

In McDonough County v. Thomas, 1899, 84 Ill.App. 408, it is Said: “We are clearly of the opinion that the care and custody of the county court house and jail fall within the common-law powers and duties of the sheriff, and that the employment of a necessary janitor to assist him was a right incident to his office. That right continues with him to-day in this State unless it has been taken from him by some constitutional or statutory provision.”

We now come to the question involving the county highway traffic officers. Art. 6699b, Section 1, Vernon’s Ann.Civ.St. reads as follows: “The Commissioners Court of each county, acting in conjunction with the sheriff, may employ not more than eight (8) regular deputies nor more than four (4) additional deputies for special emergency to aid said regular deputies, to be known as County .Traffic Officers to enforce the Highway Laws of this State regulating the use of the public Highways by motor and other vehicles. Said deputies shall be, whenever practicable motor cycle riders and shall be assigned to work under the direction of the sheriff. They shall give bond and take the oath of office as other deputies. They may be dismissed from service on request of the sheriff whenever approved by the Commissioners Court, or by said Court on its own initiative whenever their services are no longer needed or have not been satisfactory. The Commissioners Court shall fix their compensation prior to their selection, and may provide at the expense of the county necessary equipment for said officers. The pay of said deputies shall not be included in the settlements of the sheriff in accounting for the fees of office. Said deputies shall at all times cooperate with the police department of each city or town within the county in the enforcement of Traffic Laws therein and in all other .parts of the county. The said deputies shall have same right and duty to arrest violators of the law as other peace officers have.”

It was by virtue of this provision of the statutes that the Bexar County traffic officers were appointed and maintained in office.

It is the contention of the Commissioners’ Court that this article should be so construed as to give to them the right to appoint the traffic officers, and to discharge any one of such officers in the event his services should be no longer needed or were not performed in a manner satisfactory to the Commissioners’ Court, and that the only authority that the Sheriff would have would be to direct their conduct and recommend their discharge.

It is clear from the reading of this article that these traffic officers are deputy sheriffs, and that the .Sheriff would be liable upon his official bond for their misconduct. Art. 6699b Vernon’s Ann.Civ.St. If this article is to be given the above construction it is clearly invalid as making the Sheriff liable for the acts of officers that he does not have the right to employ, direct, control and discharge, thereby denying to him “due process of law.”

It is the duty of the courts to place such construction, if possible, upon a statute as to make it valid rather than invalid. It occurs to us that this article should be construed as giving the Commissioners’ Court authority, acting in conjunction with the sheriff, to determine whether or not it is desirable to have traffic officers in a particular county, and if so, how many are to be employed (not exceeding the number provided for by the statutes), and at what salary. The Commissioners’ Court may also dispense with the service as a whole whenever it is no longer needed or has proven unsatisfactory as a policy. Such officers being deputy sheriffs would be appointed by'the Sheriff, with the approval of the Commissioners’ Court, to be directed and controlled by him, and it would be the mandatory duty of the Commissioners’ Court to discharge one or all of such traffic officers if recommended by the Sheriff. Such a construction would do no violence to any provision of the Constitution and would render the act valid; whereas, if given the construction urged by the Commissioners’ Court, it would be plainly invalid.

The trial court erred in not granting appellant, Will W. Wood, the relief sought by him.

Accordingly, the order refusing the temporary injunction will be reversed and such relief here granted, pending trial of the suit for permanent injunction, on its merits.

Reversed and rendered.