author: GREENWOOD, J.

text:
    TERRELL, Comptroller, v. KING.
    (No. 4890.)
    Supreme Court of Texas.
    March 7, 1929.
    Claude Pollard, Atty. Gen., and I-I. Grady Chandler and Allen Clark, Asst. Attys. Gen., for appellant.
    T. R. Odell, of Throckmorton, and George Mendell, Jr., of Austin, for appellee.
   GREENWOOD, J.

The certificate in this case presents for determination by the Supreme Court questions of the gravest import relative to the constitutional exercise of the legislative power of the state. The certificate reads as follows:

“Appellant is the comptroller of the state of Texas. Appellee is a citizen and taxpayer and resides in Throckmorton county.
“By section 1, chapter 1, of the General Laws of the Regular Session of the 40th Legislature, the sum of $185,000 was appropriated out of the general-revenue to pay mileage and per diem of members, salaries and per diem of officers and employees, and contingent expenses of that session.
“For convenience we here quote in full Senate Concurrent Resolution No. 5 (pages 482-485 of the Laws of the Regular Session 40th Legislature), approved by the Governor February 10, 1927:
“ ‘Whereas, the tax laws of Texas are a .mass of indiscriminate enactments passed at various times and based on the then existing conditions and by reason of the exigencies at the time, and same constitute a mass of patch work and were not the result of a discriminating study of the conditions or industries of Texas or of the comparative revenue returns of the same, and do not take into consideration the changes and development of subsequent years; and
“ ‘Whereas, there is a very general feeling that, as applied to present conditions, there exist many discriminations in the tax burdens as borne by the citizens and industries of the state, and a very general demand for the equalization of taxes in order that a reality be made of that provision in our Constitution that “taxes shall' be equal- and uniform” ; and
“ ‘Whereas, owing to the great importance and magnitude of this subject it is impractical and impossible, at a session of the Legislature, by reason of the shortness of same and the necessity of considering so many other matters of legislation, and the lack of accurate information upon which to base a fair and impartial recommendation, to work out comprehensive and fair legislation, to the end that tax burdens be equalized: Therefore be it
“ ‘Resolved by the Senate of Texas, the House of Representatives concurring'—
“ ‘That a committee of fifteen persons, to be known as the Tax Survey Committee, be created, and the duties thereof be provided as follows, to wit:
“ ‘The President of the Senate shall appoint as members of this committee three (3) members of the Senate, and the Speaker of the House of Representatives shall appoint as members of this committee four (4) members of the House; and the Governor of Texas, as members of this committee, shall appoint eight public-spirited and capable persons who are private citizens of Texas, at least one of the persons to be appointed by the Governor to be a man who has made a special study of government and taxation and be well versed in the principles of taxation; and the remaining members to be appointed by the Governor to be selected from different vocations and from different sections of the state.
“ ‘The said Tax Survey Committee, shall meet within ten days from the time its membership is completed, at a time and place to be designated by the Governor, and shall organize, by electing one of its members chairman and another secretary, and such other officers as it may deem necessary.
“ ‘The committee shall adopt such rules and regulations as necessary to carry out the provisions of this resolution.
“ ‘Said committée shall be provided with a committee room in the Capitol in Austin and its sessions shall be open to the public, except at such times as the committee may, by a majority vote, determine to hold executive sessions.
“ ‘Said committee shall begin its work following the adjournment of the regular session of the 40th Legislature, unless a special session of said Legislature shall be called within ten days after the adjournment of said regular session, in which event it shall begin its investigation following the adjournment of said special session. Said committee shall continue its sessions and investigations as may be determined by a majority vote of said committee, and until its work has been completed ; however, it shall conclude its investigations and make its report to the regular session of the 41st Legislature or to some special session of the 40th Legislature called by the Governor for the purpose of receiving and considering report of said committee.
“ ‘The committee herein provided shall have free access to all boobs and records in the several departments of the state government and of any other political subdivision of the state.
“ ‘Said committee shall have power to subpoena witnesses to appear before it at any time or place it shall decide and furnish to it such information as such witnesses have, and to issue subpoena for records, books, papers and other 'documents, and to swear said witnesses; to reduce testimony to writing or typewriting; and to pay said witnesses the' fees paid them in criminal cases in the district court.
“ ‘Said committee shall also have the power to require from all persons, firms and corporations in this state, such information as it may desire with reference to the properties and tax burdens being borne by same.
“ ‘Said committee shall have the power to issue such process as necessary to compel the attendance of witnesses or production of books, records, or other information as may be desired by it in the proper discharge of its duties.
“ ‘The committee shall make a careful study of the subject of revenue and taxation with special reference to the problems presented in Texas and the comparative burdens borne, and 'shall investigate and study the systems of raising revenue and administering same in other states. Said committee shall secure information as to Texas and as to such other states desired by it as to the taxable values of said states, the aggregate income of individuals and corporations within each of the same, the systems of taxation in same, the method of financing the educational and eleemosynary institutions and departments of government, and other information relative to the wealth and resources of each of said states and the methods employed for securing revenue for the maintenance of such institutions and the pro rata and comparative cost of educational and eleemosynary institutions, and other departments of government.
“ ‘Said committee shall secure information as to Texas and as to such other states as .it may find desirable with reference to the amount of taxes now being paid by the various classes of property and industries of such states so as to be able to determine the comparative tax burden being borne in Texas and in other states by the various classes of property and industries therein.
“ ‘Said committee shall have power and authority to employ and compensate all necessary experts, investigators, stenographers and other clerical help and it shall be the duty of said committee to make and keep a record of its investigations and of all funds expended by it and to whom paid and the amounts thereof. It shall not be the duty however of said committee to keep a stenographic report of all information or investigations made by it but it shall have the authority to keep such record, as it may deem advisable.
“ ‘The report of said committee, as herein provided, shall make such recommendations, as to legislation, as may, in its judgment, be necessary to secure sufficient funds for a proper and economical administration of the departments of government, educational and eleemosynary institutions and as will, as nearly as possible, fairly and equitably and impartially distribute such burdens against its citizens and their property and make a reality of tlie constitutional provision that “taxes shall be equal and uniform.”
“ ‘Members of said committee shall each receive as compensation the sum of $10.00 per day for each day they actually serve, together with railroad fare, hotel, telegraph, telephone, postage and express expenses incurred in the discharge of their duties, and it shall be authorized and empowered to purchase such stationery and other supplies as may be necessary for the discharge of their duties.
“ ‘There is hereby appropriated from the contingent fund of the 40th Legislature, the sum of $25,000.00, or so much thereof as may be necessary for the purpose of defraying the compensation and expenses .of the committee hereby created, including the publication of 2,000 copies of the committee report, and the distribution of same to the citizens of Texas.
“ ‘Provided further that all expenditures of such committee shall be made upon the sworn account of the persons entitled to such pay, when approved by the chairman and secretary of said committee. The secretary shall file with the state comptroller of public accounts a statement showing in detail the expenditures made by such committee and the amounts and to whom all payments were made.’
“The following constituent members were appointed in compliance with the terms of this resolution: From the Senate, Senators A. E. Wood, A. J. Wirtz, and Edgar E. Witt; from the House, Representatives Olaude D. Teer, J. W. Stevenson, Adrian Pool, and E. O. Nicholson; private citizens appointed by the Governor, O. B. Colquitt, A. P. Duggan, A. C. Willacy, J. M. Henderson, Dr. E. T. Miller, J. A. Kemp, Jas. Callan, and J. M. West, each of whom accepted the appointment. The committee was organized, has functioned, and warrants covering compensation and expenses have been regularly issued up to the filing of this suit. The labors of the committee have not been completed.
“Appellee brought this suit on August 25, 1927, against appellant, in his official capacity, seeking to enjoin him from issuing any further warrants in payment of the compensation and expenses of the committee and its members. .The cause was tried to the court without a jury, and final judgment was rendered perpetually enjoining appellant and. his successors in office from issuing any warrant or other order or demand upon the treasurer of the state in payment of any services, expense account, or claims of any kind whatever in favor of the several members of the committee who were members, respectively, of the Senate or House of Representatives, but denying any injunctive relief with reference to the compensation and expenses of the eight members of the committee who are private citizens.
“The comptroller has brought the case to this court by appeal, attacking the trial court’s judgment in so far as it granted the injunctive relief prayed for; and the appel-lee has cross-assigned error, attacking that portion of the trial court’s judgment refusing to enjoin the issue of warrants covering compensation and expenses of the private citizen members of the committee.
“Appellee contended in his petition below, and now urges, that Senate Concurrent Resolution No. 5 is unconstitutional and void for the following reasons:
“ T. Because it provides for seven of its members to be members of the same Legislature which created it, and to receive additional emoluments of office in contravention of the provisions of article III, section 18 of the Constitution of Texas.
“ ‘2. Because it permits and authorized the seven members of the Legislature, who are members of the committee, to receive compensation in excess of $5.00 per day for sixty days and $2.00 per day thereafter, while the Legislature is in session, and permits and authorizes the expenditure by them for mileage and other expenses, which is in direct conflict with the provisions of article III, section 24, of the Constitution of Texas.
“ ‘3. Because the appropriation of public funds cannot be legally made by resolution, for the purpose of paying private citizens for any claim real or pretended, in the absence of a pre-existing law; that the paying of private citizens out of the public funds under alleged contingent expenses of the 40th Legislature is in violation of article HI, section 44, of the Constitution.
“ ‘4. Because said resolution attempts to appropriate the public funds by resolution and not by law, in contravention of article III, section 30 of the Constitution.
“ ‘5. Because said resolution seeks to pledge the credit of the state to the payment of claims for private and individual purposes in violation of article XVI, section 6, of the Constitution.
“ ‘6. Because the public funds are being expended under the terms of the resolution in the absence of a specific appropriation for that purpose, in contravention of article VIII, section 6, of the Constitution.
“ ‘7. Because the members of the 40th Leg¡-islature serving on said committee hold their respective offices as such members of the Legislature until their successors shall be duly qualified; that none of them have resigned as members of the 40th Legislature, and they are now receiving compensation for holding two separate and distinct offices, in contravention of article XVI, sections 17 and 33, and in violation of section 40 of said article.
“ ‘8. Because the compensation provided for in said resolution, for its members, is a grant of public money to individuals, not authorized by law, and is contrary to article III, section 51, of the Constitution.
“ ‘9. Because it is a diversion of the public funds, to use the contingent expense fund of the 40th Legislature to pay for the alleged services of private citizens, serving on a legislative committee long after the adjournment of the Legislature, for which the contingent fund was to be used and expended, and created not by law, but liy resolution; that the provisions for such expenditures are not authorized or contemplated by law, and are wholly contrary to good public policy, and an economical administration of the government.’
“Because of the public importance of the controversy thus raised, and the evident necessity of having a judicial determination thereof by the Supreme jCourt as soon as practicable, we deem it advisable to certify for your decision the following questions:
“1. Lid the trial court commit error in its judgment and holding to the effect that Senate Concurrent Resolution No. 5 is unconstitutional and void in so far as it appropriates money out of the named contingent expense fund for the payment of compensation and/or expense of the legislative members of the committee?
“2. Did the trial court commit error in its judgment and holding to the effect that Senate Concurrent Resolution No. 5 was valid in so far as it appropriated money out of said contingent fund for the payment of compensation and expenses of the members of the committee who are private citizens?”

The Constitution of Texas provides for a Senate of 31 members and for the Lieutenant Governor to be President of the Senate, and provides for a House of Representatives of not over 150 members, one of whom shall be elected Speaker. Section 2, article 3, and section 16, article 4. The legislative power of the state is vested in the Senate and House of Representatives, together constituting “the Legislature of the state of Texas.” Section 1, article 3, Constitution. The Senate and the Plouse are separate bodies, charged with duties, most of which are to be performed by each house separately,- despite the fact that the concurrence of both houses is requisite to enact laws or certain resolutions. In declaring, in section 11 of article 3, that “each house may determine the rules of its own proceedings,” the Constitution plainly delegates to each house the choice of methods for the most advantageous use of its functions in the exercise of the state’s “legislative power,” which Mr. Cooley defines as “authority under the Constitution to make laws and to alter and repeal them.” Cooley’s Constitutional Limitations (8th Ed.) p. 183. Having such choice of methods, each house is fully authorized to appoint committees to make investigations and conduct inquiries and gather information with respect to the operation of subsisting laws and the need for their improvement, alteration, or repeal. McCulloch v. Maryland, 4 Wheat. 409, 4 L. Ed. 579. Not only does the Constitution, in the grant of the rule-making power, authorize either house to name such committees as it may deem necessary or proper for purposes of investigation and inquiry, when looking to the discharge of any legitimate function or duty of such house, but the Constitution goes further and makes consideration by a committee a condition precedent to the enactment of any law. Section 37, article 3.

Since each house continues in existence after the end of a legislative session, as determined in Ferguson v. Maddox, 114 Tex. 93, 95, 96, 263 S. W. 888, and since each house is invested with independent responsibilities and duties, and is the sole judge of its own rules of procedure, we think the power of each house or of the Legislature cannot he denied to name committees to sit, either during sessions of the Legislature or in recess, for the purpose of gathering information considered requisite or helpful to enlightened or efficient legislation.

The authority of each house to use legislative committees of inquiry and investigation is affirmed in Cooley’s Constitutional Limitations (8th Ed.) at page 275, where the author says:

“Bach house must also be allowed to proceed in its own way in the collection of such information as may seem important to a proper discharge of its functions and whenever it is deemed desirable that witnesses should be examined, the power and authority to do so is very properly referred to a committee, with any powers short of final legislative or judicial action as may seem necessary or expedient in the particular case.”

The brother of former Attorney General Daugherty refused to appear and testify before a committee of the United States Senate authorized to sit after adjournment of Congress to obtain information for purposes of future federal legislation. He was thereupon attached on a warrant authorized by the Senate to compel his appearance and testimony. On- habeas corpus, he was ordered discharged by the United States District Court. After “earnest and prolonged consideration,” the appeal from the order of the District Court was determined by the Supreme Court of the United States in an opinion of great force and clarity, delivered by Mr. Justice Van Devanter, wherein the Supreme Court, in reversing the order of the court be-lovv, upheld the power of Congress and of either house, under constitutional provisions altogether similar to those in the Constitution of Texas, to appoint committees and to compel witnesses to appear and testify before such committees, whenever deemed necessary or proper in the efficient exercise of congressional legislative power. McGrain v. Daugherty, 273 U. S. 135, 47 S. Ct. 319, 71 L. Ed. 580, 50 A. L. R. 1.

In this opinion, it is shown that authority to pursue investigations and inquiries through committees has been regarded as an incident of full legislative power by the Parliament of Great Britain, by the Legislatures of the American colonies, by both houses of Congress of the United States, and by most of the state Legislatures. In upholding this long-continued exercise of authority by either house of Congress, the court uses this convincing language:

“A legislative body cannot' legislate wisely or effectively in the absence of information respecting the conditions which the legislation is intended to affect or change;- and where the legislative body does not itself possess the requisite information — which not infrequently is true — recourse must be had to others who do possess it. Experience has taught that mere requests for such information often are unavailing, and also that information which is volunteered is not always accurate or complete; so some means of compulsion are essential to obtain what is needed. All this was true before and when the Constitution was framed and adopted. In that period the power of inquiry — with enforcing process — was regarded and employed as a necessary and appropriate attribute of the power to legislate; indeed, was treated as inhering in it. Thus there is ample warrant for thinking, as we do, that the constitutional provisions which commit the legislative function to the two houses are intended to include this attribute to the end that the function may be effectively exercised.” McGrain v. Daugherty, supra.

Our conclusion that the Legislature or either house possesses authority to order committee investigations and inquiries, in order to get information requisite to the right use of legislative power, is but an application of the principle often recognised by this court that a constitutional grant of power includes “authority to do all things necessary to accomplish the object of the grant.” Smisson v. State, 71 Tex. 235, 9 S. W. 112: Texas Cent. R. Co. v. Bowman, 97 Tex. 422, 79 S. W. 295; Terrell v. Sparks, 104 Tex. 197, 135 S. W. 519.

Having decided that the Tax Survey Committee was an appropriate instrumentality for the effective exercise of the state’s legislative power, we see no reason to doubt that the. Representatives and Senators on the committee were serving thereon in their official capacities as members of the Legislature. There seems no tenable ground' for distinction between the essential functions of this committee and those of the ordinary legislative committees serving while the Legislature is in session.

In the case of McGrain v. Daugherty, supra, the Supreme Court of the United States was required to determine the official status of members of. the United States Senate while serving on an investigating committee. In that case, the witness Daugherty was held under a warrant issued by order of the Senate on an unsworn report of the senatorial investigating committee. One of the grounds-on which the witness sought his discharge was that the warrant for his arrest was void, because violative of the Fourth Amendment to-the Constitution of the United States, providing that “no warrants shall issue but. upon-probable cause supported by oath or affirmation.” In refusing to release the witness on-this ground, the court said:

“The committee %oas a part of the Senate, and its members were acting under their oath of office as senators. * ⅜ ⅜ In legislative practice committee reports are regarded as-made under the sanction of the oath of office of its members; and where the matters reported are within the committee’s knowledge- and constitute probable cause for an attachment such reports are acted on and given effect without requiring that they be supported by further oath or affirmation. * * * We think the legislative practice, fortified as it is by the judicial practice, shows that the report of the committee — which was based on the committee’s own knowledge and made under the sanction of the oath of office of its members-^noas sufficiently/ supported by oath to satisfy the constitutional requirement,”

The resolution creating the tax survey committee provides that “members of said committee shall each receive as compensation the sum of $10 per day for each day they actually served, together with railroad fare, hotel, telegraph, telephone, postage, and express expenses incurred in the discharge of their duties.”

Section 24 of article 3, of the Constitution of Texas reads:

“The members of the Legislature shall receive from the public treasury such compensation for their services, as may, from time to time, be provided by law, not exceeding five dollars per day for the first sixty days of each session; and after that not exceeding two dollars per day for the remainder of the session, except the first session held under this Constitution, when they may receive not exceeding five dollars per day for the first ninety days, and after that not exceeding two-dollars per day for the remainder of the session. In addition to the per diem the members of each House shall be entitled to mileage in going to and returning from the seat of government; which mileage shall not exceed five dollars for every twenty-five miles, the distance to be computed by the nearest and most direct route of travel by land, regardless of railways or water routes; and the comptroller of the state shall prepare and-preserve a table of distances to each county seat, now or hereafter to be established, and’ by such table the mileage of each member-shall fie paid; but no. member shall be entitled to mileage for any extra session that may be called within one-day after the ad--journment of a regular or called session.”

By the foregoing article the Legislature is forbidden to provide any greater compensation for the services of the members of the Legislature than the stated per diem and mile.age. Save as measured by duration of sessions, regular or called, no warrant can he found in the Constitution for the payment of per diem compensation to members of the Legislature. The constitutional provision for per ■diem compehsation is “not exceeding five dollars per day for the first sixty days of each session, and after that not exceeding two dollars per day for the remainder of the session." Moreover, the article makes plain that for such per diem and mileage as the Legislature may prescribe, not to exceed the stated máxi-mums, the member is required to attend the sessions at the seat of government and to perform all duties of his office. So much of the ■resolution is therefore in contravention of section 24 of article 3 as undertakes to provide that the members óf the committee from the House and Senate shall receive as compensation the sum of ten dollars per day for each day they serve.

The Supreme Court of Appeals of Virginia ■considered the claim of members of a board ■of county supervisors to extra compensation for work on committees, under a statute fixing their compensation at $3 per diem and 5 ■cents for each mile traveled in going to and from the place of meeting. In disapproving •the supervisors’ claim for extra compensation for work performed on committees, the court ■quoted with approval, first from Dillon on Municipal Corporations, vol. 1, § 233, and then from Meehem on Public Officers, § 862, .as follows:

“It is a well-settled rule that a person accepting a public office with a fixed salary is hound to perform the duties of the office for the salary. He cannot legally claim additional compensation for the discharge of these duties, even though the salary may be a very inadequate remuneration for the services.”
“Neither can he recover extra compensation for incidental or collateral services which properly belong to, or form a part of, the main office. An express contract to pay such extra compensation, or an express allowance of it, is void.”

The court declared that the principles thus ■enunciated by Dillon and Mecliem “are by ■universal consent thoroughly established throughout this country.” Johnson v. Black, 103 Va. 491, 49 S. E. 638, 68 L. R. A. 271, 106 Am. St. Rep. 890.

In State ex rel. Griffith v. Turner, 117 Kan. 755, 233 P. 510, the Supreme Court of Kansas declared:

“The Constitution fixes the compensation ■of members of the Legislature at $3 per day ■and provides that such compensation shall ¡not be more than $150 each for each regular ■session, nor more than $90 each for each special session. This compensation, fixed by the Constitution, cannot be increased. Any law which in any way, either directly or indirectly; increases the compensation of any member of the Legislature must be held invalid.”

Deciding that a councilman, by accepting his office undertakes to perform all its duties, the Supreme Court of Washington said:

“As in other legislative bodies, much of the work is performed by committees; and when a member is serving on a committee of the council he is only discharging the ordinary duties of his office, and is not entitled to extra compensation therefor. Nor is the amount of ■time or labor required to properly discharge the duties of a public office material. If necessary, the public is entitled to his whole time. He cannot be compelled to retain his office longer than he desires; and, if the salary is inadequate, or the duties of the office require more time than he can afford to devote to them, he is at liberty to resign. Neither is it material that the amount claimed as extra compensation is a reasonable one for the services performed. When the compensation is fixed by law, nothing more.can be claimed, whether the amount so established is reasonable or unreasonable.” Tacoma v. Lillis, 4 Wash. 806, 31 P. 324, 18 L. R. A. 375.

It may be noted that, even if we could hold that the members of the Legislature were constitutionally serving on committees of investigation and inquiry, otherwise than by virtue of their offices as Representatives and Senators, still they would be debarred ¡by the Constitution from the receipt of compensation for their services as committeemen. Section 33, article 16, of the Constitution mandatorily forbids accounting officers of Texas from either drawing or paying any warrant, for salary or compensation as agent, officer, or appointee, to any person, who at the time holds an office of honor, trust or profit under this state, except as .specified in the Constitution. The office of Representative or Senator is an office of honor, trust, and profit under this state, and it does not come within the exception.

The resolution we are considering provided that the members of the Legislature on the committee, like all other members, should receive, not only a specified compensation, which we have shown was forbidden by the Constitution, but also certain enumerated expenses to be incurred in the discharge of their duties, to wit, railroad fare, hotel, telegraph, telephone, postage, and express charges. We do not think the resolution was designed to provide reimbursement for any railroad fare or hotel bills expended or incurred, in going to or from the capital, during a session of the Legislature, or in residing at the capital during a session of the Legislature. So construing the resolution, we regard as valid the provision it makes for the expenses of the legislative members of the committee.

Since legislative committees of inquiry and investigation, functioning at points remote from the'capital, or functioning at the capital between sessions of the Legislature, may be essential to the effective exercise of the state’s legislative power, we must imply power on the part of the Legislature to meet the necessary expenses of such committees. For, since there is no express provision to meet such expenses, this great power of the state— intrusted by the people to their legislators— would otherwise fail. This could not have been the intent of the framers of the Constitution.

It is manifest that certain expenditures must be made by the state, in the way of legislative expenses, or the grant of legislative power could never be effectually exercised. No one would question legislative disbursements for comfortable assembly halls and committee rooms, or for clerks, stationery, etc. Within the same category of legitimate expenses of the Legislature or of either house comes reimbursement to members for actual expenses reasonably incurred in order to perform duties devolving on duly authorized committees of the Legislature, or of either house, when such committee members are called to other points than the capital, or when called to the capital otherwise than during the sessions of the Legislature.

In holding void an act of the Legislature of Oklahoma, which undertook to make an allowance to members for hotel rooms and meals while at the capital attending sessions of the' Legislature, under a constitutional provision forbidding other compensation for members than $6 per diem and mileage of 10 cents per mile, the Supreme Court of Oklahoma was careful to say:

“What are proper legislative expenses, in order to enable the body to function as not only a lawmaking, but an inquisitorial, body, and whatever amount in its judgment is necessary therefor, under the prevailing conditions of life, is a matter within the determination of the Legislature, and over which the courts can and would exercise no control. But as pointed out, supra, the section of the Oklahoma Constitution fixing the compensation is followed all but immediately by a section which requires that the sessions of the Legislature be held at the capital, thus making it clear that the compensation allowed is in view of the fact that the members must serve at the capital. This, however, cannot be construed or held in anywise to impair the discretion of the Legislature in allowing expenses in the event, in its judgment in the exercise of any of its powers, legislative or inquisitional, it, or any of its members as committees, * * ⅜ should deem it advisable or expedient to make investigation that required their leaving the capital.” Dixon v. Shaw, 122 Okl. 215, 253 P. 504, 50 A. L. R. 1237.

In 46 Corpus Juris, at page 1027, § 266 (b), on the subject of constitutional prohibitions against increases in the compensation of public officers, it is stated:

“Appropriations to public officers not intended for the personal benefit of the officer to whom the allowances are made, but for the incidental expenses of the office, are not within such a prohibition, but the prohibition cannot be evaded by the allowance of an amount greater than is reasonably necessary.”

The Supreme Court of Michigan quoted with approval the declarations in 29 Cyc. 1427, 1429, as follows:

“Where the compensation is fixed by the Constitution, or where there is a constitutional provision prohibiting such change during the term of an incumbent, no change of salary during such term is permissible, and, where a similar provision is contained in a statute, the powers of municipal corporations are subject to the same limitation. * * ⅜ Such limitations do not affect provision for expenses, except that use may not be made of a power to increase an allowance for expenses so as to increase the compensation received by an officer.” Ware v. Battle Creek, 201 Mich. 471, 167 N. W. 892, L. R. A. 1918E, 674.

The New York Court of Appeals, in the case of People ex rel. Follett v. Fitch, 145 N. Y. 262, 39 N. E. 972, in which the court had the benefit of a brief from Mr. Elihu Root, determined that a legislative act for reimbursing judges their traveling expenses, when required to preside in districts other than that of their residence, “does not deal with compensation for services,” but, on the contrary, simply provides reimbursement for a proper court expense. To like effect, see Kirkwood v. Soto, 87 Cal. 394, 25 P. 488; Corbett v. State Board of Control, 188 Cal. 289, 204 P. 824; Fergus v. Russel, 270 Ill. 304, 110 N. E. 130, Ann. Cas. 1916B, 1120; Peabody v. Forest Preserve District, 320 Ill. 454, 151 N. E. 271; State ex rel. Lamkin v. Hackmann, 275 Mo. 47, 204 S. W. 513; Id., 276 Mo. 504, 207 S. W. 498; and Id., 276 Mo. 600, 208 S. W. 445.

The fact that some members of the committee were to be private citizens did not invalidate the resolution. The Legislature was clearly empowered to appoint a committee with authority to employ all outside help or counsel needed to accomplish the purposes of the proposed investigation and inquiry. Just as clearly was the Legislature authorized to create a commission of nonmembers to investigate all matters of taxation referred to in the resolution and to report findings and recommendations to a subsequent session of the Legislature. Interstate Commerce Commission v. Brimson, 154 U. S. 474, 14 S. Ct. 1125, 38 L. Ed. 1056; People ex rel. Bender v. Milliken, 185 N. Y. 35, 77 N. E. 872. No less effect should be given to the designation of outside experts by tbe Governor, by direction of tbe Legislature, than would be given to tbeir designation directly by tbe Legislature, or its committee duly authorized. Viewing tbe resolution as a whole, in tbe light of' its obvious intent, it provided for a committee which tbe Legislature was authorized to create in tbe exercise of its constitutional legislative power.

Tbe Legislature having regularly enacted a law making an appropriation for its contingent expenses,' a resolution of both bouses, approved by the Governor, was an appropriate and constitutional method to direct tbe expenditure of a portion of tbe appropriation in financing a legislative committee- which was lawfully created.

Lt is no longer an open question in Texas that a joint resolution of both bouses, approved by the Governor, reflects the command and will of the state in one of the modes prescribed by the Constitution, and is as binding as a statute. Since the Tax Survey Committee was to function only temporarily, a resolution of both houses, approved by the Governor, was the most appropriate method by which to create the committee and define its duties and finance its operations. Section 15, article 4, Constitution; 2 Bouv. Law Dict. (3d Revision) 170-1; State v. Delesdenier, 7 Tex. 96; Franklin v. Kesler, 25 Tex. 142; Weekes v. Galveston (Tex. Civ. App.) 51 S. W. 517, wherein writ of error was denied; Conley v. Texas Division of U. D. of Confederacy (Tex. Civ. App.) 161 S. W. 26.

We answer to'question No. 1:

The trial court erred in its holding to the effect that the resolution was unconstitutional and void in so far as it directed the payment of money out of the Legislature’s contingent expense fund for the expenses of the legislative members of the committee; but the trial-corirt did not err in its judgment to the effect that the resolution was unconstitutional and void in so far as it directed the payment of money out of said fund for compensation to the legislative members of the committee.

We answer to question No. 2:

The trial court did not err in its holding to the effect that the resolution was valid in so far as it directed the payment of money out of the Legislature’s contingent expense fund for compensation and expenses of the members of the committee who were not members of the Legislature.

CURETON, O. J., not sitting.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    NEAL v. TEXAS EMPLOYERS’ INS. ASS’N
    (No. 16522.)
    Supreme Court of Texas.
    Feb. 27, 1929.
    Scarborough & Wilson, of Abilene, and B. L. Russell, of Baird, for plaintiff in error.
    L/eachman & Gardere, of Dallas, for defendant in error.
   PER CURIAM.

The record in this case Shows that the petition of the Texas Employers’ Insurance Association to set aside the award in favor of the plaintiff in error, Neal, by the Industrial Accident Board, was filed in the district court of Reeves county on January 12, 1928, which was before the filing of the instant suit by Neal in the district court of Callahan county to mature -the award. This being so, the issues as to whether or not the accident occurred in Reeves county, and as to the jurisdiction of the district court of that county to entertain the suit filed by the Texa-S Employers’ Insurance Association, are justiciable questions in the district court of Reeves county, for the determination of which that court is one of dominant jurisdiction. Cleveland v. Ward, 116 Tex. 1, 285 S. W. 1063.

The writ of error is accordingly refused.


author: LEDDY, J.

text:
    AUSTIN, Commissioner, v. NEIMAN et al.
    (No. 969-5107.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.
    Frazier & Averitte, of I-Iillsboro, and Spencer & Rogers, of San Antonio, for plaintiff in error.
    J. E. Clarke, of Hillsboro, and Joe W. Hale, of Waco, for defendants in error.
   LEDDY, J.

This is a suit by the state banking commissioner, as statutory receiver of the First State Bank of Malone, an insolvent bank, against Robert A. Neiman, former bookkeeper and assistant cashier of said bank, and the Maryland Casualty Company, to recover upon a fidelity bond in the sum of $2,000 given by Neiman to protect the bank against misapplication, wrongful abstraction, and embezzlement of its funds during the course of his employment.

In a trial by the court without the intervention of a jury, judgment was entered denying plaintiff in error a recovery on the bond, and this judgment was affirmed by the Court of Civil Appeals.

The undisputed evidence showed that S. E. Lowe, the bank’s president, pleaded guilty to embezzlement of the bank’s funds on several charges, and served a term in the penitentiary. The suit against Neiman was predicated upon the fact that he, as bookkeeper, aided and assisted Lowe in wrongfully converting the bank’s funds by so keeping the books as to keep them in balance, notwithstanding the fact that $40,000 of its liabilities to its customers were removed from the books over a period of several months and placed in a dummy ledger, during which time the said Lowe abstracted $40,000 in cash belonging to the bank, and appropriated it to his own use and benefit.

By proper assignment plaintiff in error complains of the judgment of the trial court denying a recovery on the bond of Robert A. Neiman because the uncontradicted evidence showed that he kept the individual ledger and placed on the general ledger from time to time the daily totals of the individual deposits and overdrafts reflected by the individual ledger, which said totals corresponded with the totals on the cash book, and it was physically impossible for some 50 to 75 individual ledger sheets representing total deposits of approximately $40,000 to get out of the individual ledger without his knowledge, consent, and assistance.

A careful consideration of the record convinces us that this assignment should be sustained. It appears that the scheme through which Lowe was enabled to embezzle more than $40,000 of the bank’s funds' was by means of what is termed a “dummy” ledger. This ledger was composed of a group of individual ledger sheets or accounts of various depositors in the bank which had been re1 moved from the live and current ledger, so that the total sum of the bank’s deposits had been decreased $40,000. Notwithstanding the removal'of these sheets, it appears that the books of the bank were so kept that the total of the individual deposits was carried forward on what was known as -the general ledger, in a sum less the amount represented by the $40,000 which was in the dummy ledger. Neiman was the bank’s bookkeeper, and kept the individual ledger, which contained the sheets from which the sheets composing the dummy ledger had been removed. It seems that, when a ledger sheet was taken from the active ledger, the amount of the customer’s balance on the sheet so removed was taken in cash by Lowe, the president of the bank.

Upon tlie trial Neiman a'dmitted that lie took what is called a “long shot” every 2 weeks or 30 days. By that is meant that he took the sum total of all the balances of all individual deposits as shown by the active ledger in order to ascertain whether or not the amount of the individual deposits as carried on the bank ledger corresponded with the amount of individual deposits as reflected by the total sum of all the individual personal accounts. It is not disputed that, when -a sheet was removed from the individual ledger and placed in the “dummy,” it would necessarily be discovered by the bookkeeper the next time he took a long shot, for the reason that the total sum of all his deposits ■would be as much less the amount carried on his general ledger as the sum of the removed ■sheets; that is to say, if a sheet was removed containing an account with a balance •of $1,000, when he took a long shot, he would run out $1,000 short of his general ledger, and thereby would be put upon notice that a $1,000 sheet was misplaced.

We think it conclusively shown that the Sheets composing the dummy ledger were not all removed at the same time, but that they were removed over a period of several ■months. The general ledger was in Neiman’s ■individual handwriting, and it never at any time showed a decrease in deposits of $40,000. There was only a few thousand dollars decrease at any one time, but there was shown a gradual decline in deposits for about 2 years prior to the date the bank was closed. When the dummy ledger was discovered in the vault after the bank was closed, it contained sheets covering individual accounts totaling more than $40,000, which, when add•ed to the deposits of $60,000, shown by the general ledger ran the deposits up to théir former standard of approximately $100,000.

Defendant in error Neiman testified as a ■witness, denying any personal knowledge of the dummy ledger until after the bank was closed. He admitted, however, that he kept ¡the individual ledger, posted the books, and deposits, ran his long shot at stated intervals, and posted the totals of individual deposits on the general ledger. He also testified that during the 2 years preceding the ■closing of the bank the books kept by him were never out of balance by more than $50 ■at any one time.

We think that, under the system used by Lowe to embezzle the bank’s funds, it was physically impossible for Neiman not to have discovered the unlawful abstraction of the ■bank’s funds that was being carried on for a period of several months. Every time a sheet was lifted from the live individual ledger and placed in the dummy ledger a corresponding amount of cash was taken from the bank by Lowe. The bank’s individual deposits would thus he reduced to the amount •of the total deposits on the sheet so rémoved and the general ledger m fact showed a corresponding reduction. It appears that the individual and the general ledger kept by Nei-man were, during all the time this pilfering was going on, in perfect balance. The general ledger which was kept in Neiman’s own handwriting showed no changes or erasures. The taking of the long shot once or twice a month must necessarily have disclosed to Neiman the repeated shortages that were taking place, and yet, in the face of the continuous lifting of deposit sheets and thus reducing the deposits of the bank, the general ledger and individual ledger were kept in constant balance. This result eould only have been accomplished by the making of false entries on the general ledger by Nei-man.

Several of the bank examiners testified that, when they first took over the bank, Nei-man admitted to them his guilty knowledge of the keeping of the dummy ledger. He, however, vigorously denied that he made any such admission to the examiners. The defendant in error, Maryland Casualty Company, offered in evidence Neiman’s testimony upon a former trial of this ease, from which it appears he testified:

“Mr. Lowe told me in November that the bank was short about twenty-four or twenty-five thousand dollars, and that he had the money to take care of it; had it fixed up; but how, I don’t know; I did not ask him. ⅝ ⅜ ⅜ He told me he had gotten the money in Dallas, but he did not tell me how he had fixed it up. I believed what he said, and thought the matter was all right, and then continued my employment in the bank.”

It was further shown that in such former testimony he testified with reference to the 'posting of checks against individual customers’ accounts as follows:

“In keeping the books, I had to have the cheeks in my hand that were sent in before I could run them through the books. I received each and every check that came into the bank. I charged each check to the account of the man who drew it. * ⅜ * It was my business to put every check on the books that went on the books for the three years that I was there. I had to be familiar with the accounts. I had to work with them daily and I did do that. If an account was active at all it was such by means of my handling the checks.”

It was undisputed that a great many of the sheets placed in the dummy ledger covered active accounts; that is, accounts'against which cheeks were being constantly drawn, and it appears that these checks were properly posted on the .sheets in the dummy ledger. It would have been physically impossible for numerous checks' to come into the teller’s window, and be passed back to Neiman for entry on the customers’ individual sheets over a period of several months without hi/ discovering tliat tlie sheets covering individual accounts had been abstracted from the individual ledger. Manifestly, it would have been impossible for the president of the bank to have known when numerous -checks would be presented against accounts which happened to be in the dummy ledger so as to keep said checks from coming into possession of Neiman for posting, and, if they did come into his possession, he is bound to have discovered that the sheets upon which they were to be charged were missing -from the individual ledger.

The decision of the Court of Civil Appeals that there was evidence to sustain the court’s implied finding that Neiman did not aid and assist Lowe in the embezzlement of the bank’s funds seems to be largely predicated upon the answer of one of the bank examiners to a hypothetical question propounded, to him upon the trial as to how Lowe’s shortage could have occurred without Neiman having knowledge thereof. The witness answering such question said:

“If S. E. Lowe had lifted out of the individual ledger out in the bank, a customer's ledger sheet that showed that he had $500 in the bank, and put that sheet in the dummy ledger in the vault, and gone to some other account on that ledger and credited that with $500, the books of the bank would still balance. There wouldn’t have been any shortage shown by that transaction. If a week later he would debit that particular account with $500, that would then show the true condition of that customer’s account. If at the same time he was to credit cash for $500 and put the money in his pocket, the books would still balance. The customer’s individual ledger sheet out in the ledger would be. correct, and the books would still be in balance, and Mr. Lowe would have $500 of the bank’s money.”

The judgment cannot be sustained on this theory, for the reason that the record contains no evidence whatever tending to show that the amount of deposits shown by any ledger sheet placed in the dummy was credited on any other account. It was not shown that upon a single live ledger sheet there had been entered a false credit for the amount of a lifted ledger sheet which was later reduced by a false charge ticket. This was purely a speculative theory which finds no support in the evidence. Besides, if Lowe had carried on his embezzlement of the bank’s funds in the way indicated by the hypothetical question, there would have been no necessity for lifting the live ledger sheets and placing them in a dummy ledger. It would only have been necessary to have made a false credit on a customer’s individual sheet and reduced same by a false charge ticket. Moreover, if such method had been pursued, with the large number of accounts in the dummy ledger, it would at least have been discovered after the bank was closed, and a careful check of the books made by those in charge thereof.

In the face of evidence indisputably showing the method by which the shortage took place, it is useless to indulge a fanciful theory that it might have occurred in another and different way. In determining whether there is any evidence to sustain a finding, we must confine ourselves “within the field of evidence to the utmost bounds of reason which rational men of common sense might know without passing beyond the line between the field of probability and the field of conjecture.” 23 C. J. p. 53, § 1795; Hollenback v. Stone & Webster Engineering Corp., 46 Mont. 559, 129 P. 1058; Lehane v. Butte Electric Co., 37 Mont. 564, 97 P. 1038; Mickuezauski v. Helmholz Mitten Co., 148 Wis. 153, 134 N. W. 369.

In our opinion, the evidence conclusively established that Lowe embezzled the bank’s funds during a period of several months through the method of removing sheets covering customers’ individual accounts from the active ledger and placing them in the dummy ledger, and subsequently appropriated to his own use the amount of the bank’s funds covered by the sheets thus removed. Under Neiman’s own admission, it would have been impossible, if such system was in fact used, for him not to have discovered the shortage whenever he took his long shot.

While trial courts are allowed a wide latitude in determining the credibility of witnesses and the weight to be given to their testimony, this does not go to the extent of permitting the testimony as to a given fact to be allowed weight when the undisputed physical facts show that it is impossible for such testimony to be true.

It being established beyond controversy that Neiman aided and assisted Lowe in the unlawful appropriation of the bank’s funds, the conditions of his bond were violated; hence a recovéry thereon should not have been denied.

We therefore recommend that the judgments of the trial court and the Court of Civil Appeals be reversed, and that judgment be rendered in favor of plaintiff in error against defendants in error for the amount sued for, and also that judgment be rendered in favor of defendant in error Maryland Casualty Company against its codefendant Nei-man for the amount awarded against it.

CURETON, C. J. Judgments of the district court and Court of Civil Appeals reversed, and judgment rendered for plaintiff in error against both defendants in error, with judgment in favor of the Casualty Company against defendant in' error Neiman, as-recommended by the Commission of Appeals.


author: SPEEdt, J.

text:
    LEAL v. LEAL.
    (No. 1004-5179.)
    Commission of Appeals of Texas. Section B.
    March 13, 1929.
    Drew Pruitt, of San Antonio, for plaintiff in error.
    George G. Clifton, of San Antonio, for defendant in error. <
   SPEEdt, J.

This suit is an action by plaintiff in error against defendants in error for an accounting and for damages involving real property in the-city of San Antonio-. A very full statement of the case will be found in the opinion of the Court of Civil Appeals affirming the judgment of the trial court in favor of the defendant in the action. 4 S.W. (2d) 985.

The assignments of error are numerous, but the real questions presented are few.

The first assignment of error complains that the Court of Civil Appeals erred in overruling certain propositions because the affirmative answer of the jury to special issue No. 1 is unsupported by the evidence in the respect there is no 'evidence to show that the defendant ever, at any time, purchased the plaintiff’s expectancy in his mother’s estate. The defendant testified: “I bought his (the plaintiff’s) interest in his father’s estate from A. A. Gray and I bought his-expectancy in his mother’s estate from him and I paid him for it after the Laredo Street property was sold, by giving him money and the store.” There is no objection presented to the character of this evidence, and it is sufficient to authorize the submission of the issue and to support the finding complained of.

Next, it is complained that it was error to submit to the jury whether or not the instrument of date February 5, 1918, executed by Emilio Leal to Santos Leal, conveyed the plaintiff’s expectancy in his mother’s estate, because the “instrument shows, on its face, that it is a quitclaim deed” and does not otherwise- embrace such an expectancy.

The instrument contains this language: “ ⅞ * * ,j0) t>y these presents, bargain, sell, release and forever quitclaim unto the said Santos Leal and also acknowledge the same was for the 1st and -2nd distribution of the following estate, his heirs and assigns, all my right, title and interest in and to that certain tract or parcel of land lying in the county of Bexar and State of Texas, described as follows, to-wit: ■ (the property in controversy) to have and to hold the said premises, together -with all and singular the rights, privileges and appurtenances thereto in any manner belonging unto the said Santos Leal, his heirs arid assigns forever. So that neither I, the said Emilio Leal, nor my heirs, nor any person or persons claiming, under me shall, at any time hereafter have, claim or demand any right or title to the aforesaid premises or appurtenances or any part thereof.”

This language, we think, constitutes the instrument ■ a conveyance of the land rather, than a mere chance of title as pointed out in Cook v. Smith, 107 Tex. 119, 174 S. W. 1094, 3- A. L. It. 940, as held by the Court of Civil Appeals. But whether so or not, the jury, in response to question No-. 1, found that “prior to the purchase of the Pecos Street property in August, 1915,” the defendant had purchased from the plaintiff his expectancy in his mother’s estate. So that any possible error in submitting the effect of the instrument of February 5, 1918, is harmless. Already the expectancy is shown to have passed to the defendant in error.

It is complained that the' trial court erred in refusing to submit the issue whether or not the defendant, Santos, at the instance of the mother of the parties, repurchased the lands in controversy from one A. A. Gray, to whom plaintiff had conveyed the same, with moneys belonging to the mother for the benefit of the plaintiff. There was evidence to justify the submission of such an issue, but in view of other findings the omission is harmless, because, as already shown, in response to question No. 2, the jury have found that Emilio, .on February 5, 1918, executed to Santos a deed or instrument conveying the property. This would relinquish the trust if one existed. The remaining assignments in one form or another complain that the trial court refused to submit the issue whether or not the particular lots in controversy were, purchased by defendant with funds from which there would arise a trust in favor of the plaintiff; but, as already shown, this issue was entirely immaterial, in view of the finding of the validity of the defendant’s deed of date February 5, 1918, conveying all his right, title, and interest in and to the property to his brother, Santos.

We find no error for which the judgment of the Court of Civil Appeals should be reversed, and accordingly recommend that it be affirmed.

OURETON, O. J. Judgment of the Court of Civil Appeals affirmed, as recommended by the Commission of Appeals.


author: SHORT, P. J.

text:
    BAILEY et al. v. TEXAS INDEMNITY INS. CO.
    (No. 1020-4984.)
    Commission of Appeals of Texas, Section B.
    March 13, 1929.
    Harry Dolan, of Georgetown, and Black & Graves, of Austin, for plaintiffs in error.

      Woodward & Gay, ol Austin, for defendant in error.
   SHORT, P. J.

This suit is based upon the Workmen's Compensation Law of 1917 (Acts 1917, c. 103), and the issues for determination must be viewed from the standpoint of the provisions of that law. Randolph Bailey, one of the plaintiffs in error, was employed by Wattinger Bros, as a common laborer in the construction of the high school building at Georgetown, and sustained an injury while in the course of his employment on or about June 7, 1923. The Court of Civil Appeals, among other things, find as a fact that, in addition to the facts first above stated, Bailey has a meritorious case, is permanently disabled, that his employers had notice of his injury -within 30 days thereto, and inferential^ also find, as the trial court found in its findings of fact, that Wattinger Bros, were subscribers under the Workmen’s Compensation Law of Texas, as it existed at the time the injury was received, and as such carried liability insurance with the defendant in error for the benefit of their employes; that the average weekly wage, which Bailey was receiving at the time he was injured, was $15; that he was entitled to receive, under the law, $9 per week.

The record shows, and the Court of Civil Appeals so find, that Bailey did not file his claim for compensation with the Industrial Accident Board until 2 years and 8 months after the injury occurred. It is an undisputed fact, as shown by the record, that Bailey had no actual knowledge that his employers carried insurance for his benefit. The case was tried -without the intervention of the jury, and judgment was rendered in favor of the employé and his attorney for a lump sum, the sum being divided in accordance with the terms of the contract between Bailey and his attorney. The Court of Civil Appeals reversed the judgment of the trial court, and rendered the judgment in favor of the defendant in error. 297 S. W. 1042.

The application for the writ of error assigns many errors alleged to have been committed by the Court of Civil Appeals, but the view we have taken of the record renders unnecessary a discussion of all of these assignments. The judgment of the Court of Civil Appeals is primarily based upon the legal conclusion, that since the record shows, without dispute, that the claim of Bailey was filed more than two years after the expiration of the six months allowed by law, and more than a year after his incapacity ceased to exist, as a matter of law, the Industrial Accident Board and the trial court abused their discretion in awarding him compensation. The plaintiffs in error duly assign error upon this primary conclusion, reached by the Court of Civil Appeals, contending that, while the record shows Bailey had “constructive notice,” as that phrase is defined by the law on this subject now in force, his employers carried compensation insurance with the defendant in error for his benefit, it was shown that Bailey did not have any actual notice of this fact until immediately before his claim for compensation was filed with the Industrial Accident Board.

With reference to the specific assignments raising this question, which we regard as the most material one presented by the record, we will discuss it, assuming, of course, the facts we have enumerated. In doing so, the only portion of the Workmen’s Compensation Law of 1917 (Gen. Laws, 35 Leg., p. 269) applicable to the question are sections 3a, part 1, 4a, part 2, and 19 and 20, part 3, which, in the order named, are as follows:

“Section 3a [Part 1]. An employe of a subscriber shall be held to have waived his right of action at common law or under any statute of this state to recover damages for injuries sustained in the course of his employment if he shall not have given his employer, at the time of his contract of hire, notice in writing that he claimed said right or if the contract of hire was made before the employer became a subscriber, if the employé shall not have given the said notice within five [5] (Lays -of notice of such subscription. An employé who has given notice to his employer that he claimed his right of action at common law or under any statute may thereafter waive such claim by notice in writing, which shall take effect five [5] days after its delivery to his employer or his agent: Provided further, that any employé of a subscriber who has not waived his right of action at common law or under any statute to recover damages for injury sustained in the course of his employment, as above provided in this-section, shall, as well as his legal beneficiaries and representatives have his or their cause of action for such injuries as now exist by the common law and statutes of this state, which action shall be subject to all defenses under the common law and statutes of this State.”
“Section 4-a. Unless the association or subscriber have notice of the injury, no proceeding for compensation for injury under this act shall be maintained unless a notice of the injury shall have been given to the association . or subscriber within thirty [30] days after the happening thereof, and unless a claim for compensation with respect to such injury shall have been made within six [6] months after the occurrence of same; or, in case of death of the employé or in the event of his physical or mental incapacity within six [6] months after the death or removal of such physical or mental incapacity: Provided that for good cause the board may, in meritorious cases, waive the strict compliance with the fo'regoing limitations as to notice, and the filing the claim before the board.”
“Section 19. Every subscriber shall, as soon as he secures a policy, give notice in writing or print, or in such manner or way as may be directed or approved by tbe Board, to all persons under contract of hire, with liim that he has provided for payment of compensation for injury with the association.
“Section 20. Every subscriber shall, after receiving a policy, give notice in writing or print, or in such manner or way as may be directed or approved by the board to all persons with whom he is about to enter into a contract of hire that he has provided for payment of compensation for injuries by the association. If any employer ceases to be a subscriber, he shall on or before the date on which his policy expires, give notice to that effect in writing or print or in such other manner or way as the Board may direct or approve to all persons under contract of hire with him. In case of the renewal of his policy no notice shall be required under this act. He shall file a copy of said notice with the, board.”

In order to'receive the benefits contemplated by the provisions of this law, it is incumbent upon the employers of Bailey, as soon as they had secured the policy of insurance, to give him notice of that fact, if he was then one of their employes; and likewise it was their duty to notify Bailey that they had provided for payment of compensation for injury, in the manner provided by law, at the time when he was employed by them, if the policy had previously been procured. The record does not disclose which of these two situations arose; that is, whether the policy was secured before or after Bailey was employed. However, we do not consider material to have determined which of these existed. If Bailey’s employers had already taken out insurance, under the law, at the time he was employed by them, then in that event it was the duty of his employers to notify him, at the time of the employment, of this fact. Upon the other hand, if they had not taken out such insurance when they employed him, then, under the law, it became their duty to notify him when they had done so.

Much is said in the briefs of the parties, as well as in the opinion of the Court of Civil Appeals, with reference to the constructive notice contemplated by the provisions of the law of 1923 (Haws 1923, c. 177, § D). Since this law is not applicable to the facts in this case, the injury having occurred before the present law went into effect, we do not deem it necessary to notice this discussion of the present law providing for constructive notice to employés, growing out of the fact that the employers had done the things which the present law now says would have the legal effect to furnish employés with constructive notice. It is sufficient to say that the law of 1917 does not embrace this language, or any language substantially conveying the same idea.

The only question of moment involved is whether Bailey’s rights were barred by his failure to file his claim with the Industrial Accident Board within 6 months after he was injured, under the law and the facts of this case. Clearly, under a literal reading of section 4a, supra, without reference to other kindred provisions of the law, his rights were barred, since 2 years and 8 months elapsed after the injury was received before the claim was filed with the Industrial Accident Board. However, under a well-recognized rule of construction, courts are charged with the duty, in construing an act of the Legislature, to •take into consideration each and every relevant part thereof. Under this act of. the Legislature it was the duty of Wattinger Bros, to Bailey to give him notice of the fact that at the time they employed Bailey they were carrying insurance for his benefit, if, in fact, they were, or, if they afterwards procured the insurance, to then notify him that they had done so. Until Wattinger Bros, had discharged this duty, imposed upon them by law, by giving this information to Bailey, the latter was under no duty to himself, to his employers, or to the association to do anything which the law required that he should do, having this information.

The record shows that when he received this information, he immediately filed his claim for compensation with the Industrial Accident Board; that the board allowed it, and upon a trial of the issue, properly presented in the district court, judgment was rendered in his favor, based upon sufficient facts to sustain it. After this information had been duly given to Bailey, under the provisions of this act, it was his duty, within 5 days, to give actual notice to his employers that he would not accept the benefits provided for him by this law. Then, after having done so, upon his having received injury in the course of employment, he would be entitled to compensation according to the rules of the common law. On the other hand, a mere failure of Bailey to give this information to his employers would, under the provisions of the law, eliminate Bailey’s right to recover under the rules of the common law, and this failure would relegate him for compensation to a claim duly filed and proven before the Industrial Accident Board within 6 months after the injury had been received. Bailey not having given his employers any information to the effect that he would not accept benefits under the Workmen’s Compensation Law, automatically his rights for compensation accrued under the law, by virtue of which the employers had procured compensation from another for their injured employs.

The principle of law presented by this feituation is thus stated in Corpus Juris,, volume 37, page 955: “Where the right to sue, to resort to a particular remedy, or to proceed against particular p^sons depends upon the prior ascertainment of facts, or the establishment of particular conditions upon which the peculiar liabilities may be enforced, the running of tlie statute begins from tiie ascertainment of sucb facts, or the establishment of such conditions, and not until then.” This statement of the rule is supported by many authorities, among which are the following: U. S. v. Louisiana, 123 U. S. 32, 8 S. Ct. 17, 31 L. Ed. 69; Taylor v. Rowland, 26 Tex. 293; Yeary v. Cummins, 28 Tex. 91; Dashner v. Wallace, 29 Tex. Civ. App. 151, 68 S. W. 307; Leach v. Wilson County, 68 Tex. 353, 4 S. W. 613; Caldwell Co. v. Crockett Harbert, 68 Tex. 321, 4 S. W. 607; Yeaman v. Galveston City Co., 106 Tex. 389, 167 S. W. 710, Ann. Cas. 1917E, 191; Levy v. Roper, 113 Tex. 356, 256 S. W. 251.

Subject to the proviso in section 4a, above quoted, the meaning of which is not necessary for us to construe in this case, the limitation upon the rights of an employs to maintain a claim for compensation, as expressed in section 4a, is clearly mandatory. Equally mandatory is the statute requiring an employer. to give notice to an employé, when he employs him, in case he has already taken out insurance, or where he afterwards takes out insurance, to notify the employé that he has done so, as provided by sections 19 and 20, above quoted. These two provisions of the statute must be construed as one statement of the Legislature with reference to this particular matter. The employer, under one, is required to give the employé certain information. Under the other, only and when this information has been given by the employer to the employé, is the latter required to present his claim to the Industrial Accident Board within six months. If the employer does not notify the employé that the insurance has been secured, then the employé must necessarily assume that the employer has eleqted to stand, with reference to him and his employment, under his common-law liability. The employé is authorized to interpret the failure of his employer to give him this information to the election by the latter not to be bound under the provisions of the statute. The failure to give this notice required, under the provisions of the law at the hands of the employer, has the legal effect to excuse the employé from presenting any claim, under the Workmen’s Compensation Law, until this notice has been given to him by his employer. The employer having been in default, the consequence of such default, under the scheme set forth in the Workmen’s Compensation Law, is visited upon the insurance company issuing the policy to the employer, which company stands in his shoes.

The insurance company is the alter ego of the employer. The statute substitutes for the common-law liability of the employer the new liability to be imposed by the terms of the law and compels this liability to be assumed by the employers alter ego, “the association.” As said in Middleton v. Texas Power & Light Co., 108 Tex. 109, 185 S. W. 561: “It in effect declares that such employers shall no longer be liable as under that rule [the common-law rule], but shall be liable according to the rule prescribed by the act. * * ⅜ The employer ⅜ ⅜ * shall compensate his employee for accidental injuries received in his service according to a different rule, through another remedy, and in its judgment by a better plan.” The effect of the Workmen’s Compensation Act is not merely to discharge the liability of the subscribers, but also to substitute another liability therefor in the association. It destroys the employe’s “right of action” against the subscriber, - and at the same time gives him the right of action against the insurance carrier, who, under the act, is but the representative of the subscriber. Under the plan of the act many affirmative duties are required of the employer, and in respect to these duties, as also in respect to the employer’s right, he and the insurance company are in privity, and the default of one is the default of the. other. The Workmen’s Compensation Law, as it existed when Bailey was injured, in requiring that the employers should give “notice” to the employé of the fact that he carried compensation insurance means actual notice of such fact.

Where a statute requires notice to be given to a person for the purpose of creating a liability, actual notice is intended, unless another kind of notice is expressly authorized. Producers’ Oil Co. v. Daniels, 112 Tex. 45, 244 S. W. 117; Burck v. Taylor, 152 U. S. 634, 14 S. Ct. 696, 38 L. Ed. 578. The statute authorizing the Industrial Accident Board to prescribe a way or manner of giving notice does not mean that the character of notice meant by the statute should be changed, but that the board has the authority to prescribe the way or manner of giving the actual notice to the employe, contemplated by the Legislature. This statute provides that the employer shall give the employé notice “in writing or print.” This implies that the information shall be conveyed either by writing or by printing, and evidently contemplates that the information shall be actually conveyed by the employer to the employé in some effective way. When the statute further empowers the Industrial Accident Board to provide that such matters may be given in some other way than by writing or printing, it manifestly refers to actual notice.

The statute commits to the Industrial Accident Board the power, not to substitute constructive for actual notice, but merely the power to provide additional ways or means of giving actual notice. It is not reasonable to suqipose that the Legislature, after providing that the employer shall give actual notice in “writing or print,” should permit the Industrial Accident Board, by a mere regulation, to substitute therefor constructive notice by posting or otherwise, the information necessary for the employé to have in order to require him to take some action in the premises. In Producers’ Oil Co. v. Daniels, supra, in discussing tire law of 1913, it is said: “It does not prescribe how such notice shall be given. When a statute directs that notice in writing shall be given, but is silent with reference to the manner of giving the same, personal service of such notice or a copy thereof upon the person to whom it is to be given is necessary.” The act of 1917, which authorizes the Industrial Accident Board to provide additional ways of giving notice, does not provide for constructive notice, but merely provides that different methods may be used in giving actual notice. “When there are general words following particular and specific words, the former must be confined to things of the same kind.” Farmers’ & Mechanics’ National Bank v. Hanks, 104 Tex. 320, 137 S. W. 1120, Ann. Cas. 1914B, 368. The regulations of the Industrial Accident Board cannot be used in construing the law, so as to give it a higher mandate than that of the statute. The statute refers only to methods of giving actual notice, and the regulations permitted to be given by the board, to be valid, must provide the same kind of notice. Ruling Case Law, volume 20, page 323; Cyc. vol. 29, page 1116. We therefore sustain all of the assignments based upon the action of the Court of Civil Appeals in holding that the word “notice” means constructive notice, under the facts of this case.

The trial court rendered judgment in favor of Bailey and his attorney for a lump •sum. Under the Workmen’s Compensation Law the method of payment is by weekly compensation. As stated in Texas Employers’ Insurance Association v. Downing (Tex. Civ. App.) 218 S. W. 112, in speaking of this part of the law, “this provision, as well as other parts of the act, show that it was the purpose of the law to require that in all ordinary cases the compensation should be paid weekly, so as to take the place of the wage which the injured person was receiving; but the Legislature ⅜ * * realized that application of the rule for the payment of the compensation in equal weekly payments would, in some instances, work hardships and injustice.” We have not been able to find any testimony in the record which would support the finding of fact by the trial court that manifest hardship and injustice would result to Bailey, unless the judgment provided for the payment to him of a lump sum. However, since the record furnished, without contradiction, the necessary facts to enable the Supreme Court to render the judgment, which the trial court should have rendered, and since we are of the opinion that this was the only error committed by the trial court, and that the Court of Civil Appeals erred in reversing the judgment of the trial court and rendering one in favor of the defendant in error, we recommend that the judgment of the Court of Civil Appeals be reversed, and that the judgment of the District Court be reformed, so as to give to the plaintiff in error, Bailey, judgment against the Texas Indemnity Insurance Company for the sum of $3,609, as compensation for the injuries received, to be paid in weekly installments of $9, of which $6 should be paid to Bailey and $3 of which shall be paid to his attorney, L. B. Duke, until the full sum shall have been paid, and that, as modified, the judgment of the District Court be affirmed.

CURETON, C. X Judgment of the Court of Civil Appeals Reversed, and judgment of the District Court reformed and affirmed, as recommended by the Commission of Appeals.


author: NICKELS, J.

text:
    WINDER BROS. v. STERLING et al.
    (Motion No. 8405; No. 1127-5064.)
    Commission of Appeals of Texas. Section A.
    March 13, 1929.
    For former opinion, see 12 S.W.(2d) 127.
    Harris & Harris, of Austin, for relators.
    Claude Pollard, Atty. Gen., and Paul D. Page, Jr., Asst. Atty. Gen., for respondents.
   NICKELS, J.

Relators in their motion for rehearing complain that we did not pass “upon applicant’s contention that the statute * * * is violative of the Constitution of the United States, as amended by the Fifteenth Amendment thereto.” We assume that counsel intended to refer to the due process clause of the Fourteenth Amendment. Be that as it may, no reference to the Federal Constitution is made in the petition in mandamus.

But if the contention were made, the re-suits stated in our original opinion for denying the claim of lack of due process required in the state Constitution would cause us to make a like holding in respect to due process under the Federal Constitution.

The other matters presented in the motion for rehearing were considered by us originally, and upon reconsideration We adhere to the views then expressed.


text:
    THOMPSON v. MOOR.
    (No. 1189-5190.)
    Commission of Appeals of Texas, Section A.
    March 13, 1929.
    Roliert L. Holliday, of El Paso, for plaintiff in error.
    Jones, Harclie & Grambling, of El Paso, for defendant in error.
   NICKELS, J.

Thompson is (and for many years has been) record owner of a certain-50-acre .tract on what is called the “island,” between the Rio Grande river as it coursed in that neighborhood when the international boundary was established and the river in its present course (to the eastward). The tract is, in form, a parallelogram, 119.56 varas wide (north-south) and 2,322.7 varas long (east-west), except that its eastern boundary (568 varas in extent) is coincident with the western bank of the river as presently located and meandered.

Moor claims the tract by ten years’ prescriptive title (articles 5510, 5513-5515, R. S. 1925; article 5675 et seq. R. S. 1911), and in. trespass to try title brought-by him May 6, 1926, he was given title by the trial court The judgment was affirmed by the Court of Civil Appeals. 4 S.W.(2d) 117. Thompson, in petition in error, asserts that judgment should have been for him on account of various matters discussed (so far as deemed essential) herein below.

1. It is said that Moor did not prove that as much as one-tenth of the land had been “used for agricultural purposes * s * or for manufacturing purposes,” etc. In Thompson’s favor we assume such lack of proof. Except for the river bank on its eastern end, the tract is (and throughout the prescriptive period was) bounded -on the west, north, and south by lands “owned and claimed” by Moor, and the whole óf the adjoining lands and the tract in question (except for a small part of the latter) was inclosed by a fence. This fence, in its course across the eastern end of the 50-aere tract, was located a short distance (say 60 feet) west of the western river bank, and generally conformed to the river’s meanderings. Segregating fences did not exist. In that situation, Thompson (largely upon the supposed authority of Vergera v. Kenyon [Tex. Civ. App.] 249 S. W. 514; Id. [Tex. Com. App.] 261 S. W. 1009, and the supposed general purpose of the statute) says that his land was and is “entirely surrounded” by the “tract or tracts owned, claimed, or fenced” by Moor, and hence that the terms of article 5511 have (a) application and (b) are of such force as to preclude Moor. In Thompson’s favor we assume the result would be a consequence of article 5511, applied to the facts, if his tract were thus “entirely surrounded.”

That the tract in question is not (in a literal sense) “entirely surrounded” by lands “owned, claimed,- or fenced” by Moor is manifest. Whatever its nature, Moor’s claim to this tract had and has relation to the tract as an entirety; hence that small part of the tract intervening the fence and the west bank of the river cannot -be regarded as one of the “circumscribing” tracts (even if article 5511 does not mean that all of the “circumscribing” tracts must be within the fence). In Vergera v. Kenyon it appears that the limitation claim-' ant owned lands bounding the tract claimed on each of its sides and throughout the extent of each of the sides. Since, as held, a point is without dimensions, the fact that a third party owned a tract one of whose corners was coincident with a corner common also to each of two of the “circumscribing” tracts and the tract claimed did not make it possible for the record owner to reach his land without passing over land owned by the claimant. But in the situation instantly presented Thompson could enter his premises from the river side without touching Moor’s land, and it results that Vergera v. Kenyon is not authority for the proposition asserted.

True it is that Thompson, in entering his premises from the river side (and except for a distance of some 60 feet), would be obstructed by the fence which Moor had erected across the eastern end of the tract. But this merely exhibits one reason for declining to stretch article 5511 beyond its literal ranges. Erection and maintenance of a fence inclosing “circumscribing” tracts “entirely surrounding” the other tract is entirely consonant with ownership, or claim of ownership, of the “circumscribing” tracts of themselves; perforce, such conduct does not import (at least, does not necessarily import) claim to or hostile possession (if, in fact, actual possession) of the “surrounded” land. In such a case there is not an “improvement,” etc., or other overt act, in direct reference to the land of another. But, in case of a tract not entirely surrounded, erection and maintenance of a fence inclosing it with the abutting tracts necessarily involves physical invasion, and conduct evidenced by overt acts which (unless done pursuant to agreement, etc.) projects notice of hostility. In our opinion, article 5511 has no application to the facts shown.

2. By way of posturing the matter now to be considered, we assume in favor of Moor: (a) Peaceable possession for 10 years (articles 5510, 5514); (b) “cultivation, use or enjoyment” (article 5510); (c) overt acts, etc., sufficient, when viewed of themselves, to import notice of hostility, and thus to give to peaceable possession the added characteristic of adversity (article 5515; Craig v. Cartwright, 65 Tex. 413).

But peaceable possession, even when accompanied with acts whose prima facie import is that of hostility, may not, in truth, be adverse, for intent (of the possessor) may bring his acts, etc., into consonance with recognition of the privileges of true ownership. Intent, then, is a controlling factor. Purpose kept intimate (through lack.of overt acts, etc.) to the possessor is, of course, nonobligatory upon the true owner, for in such event there is lack of requisite notoriety. Article 5515; Titel v. Garland, 99 Tex. 201, 87 S. W. 1152: Evans v. Templeton, 69 Tex. 375, 6 S. W. 843, 5 Am. St. Rep. 71; Scott v. Rodgers (Tex. Com. App.) 6 S.W.(2d) 731, 734. But design, which does not include purposed adverse claim, manifestly, is binding upon the possessor, whether published or not. Satterwhite v. Rosser, 61 Tex. 166; Warren v. Frederichs, 83 Tex. 380, 18 S. W. 750; Houston Oil Co. v. Jones, 109 Tex. 89, 198 S. W. 290; Kirby Lumber Co. v. Conn, 114 Tex. 104, 263 S. W. 902. Hence evidence of declarations (prior to suit) expressing or implying amicable purpose, or evidence of acts importing such purpose, are admissible as against the possessor, and when admitted are sufficient (at least) to raise an issue of fact, however strongly contradicted by his declarations of intent given on the trial. Satterwhite v. Rosser, supra; Warren v. Frederichs, supra; Nerio v. Christen (Tex. Civ. App.) 189 S. W. 1038.

Actual knowledge of intent is confined, ex vi necessitate, to the person whose acts come under review. Of all persons, he is the only one in a position to declare the truth as a fact. In his expressions he may or may not state the truth; a possessor, e. g., may declare his entry, etc., was amicable, but it may, nevertheless, have been hostile, or he may declare a hostile intent, whereas, in fact, the intent may have been peaceable. But because of the exclusiveness of his knowledge and the lack of any reason to forget the truth, his declarations of intent (in so far as the declarations are against his interest) given upon the trial of his ease ought to be regarded as conclusive upon him. There is apparent basis for a different view of declarations (of intent) made by him before trial and contradicted by him upon trial; but we have before us declarations given in testimony by the possessor upon trial of the present case, and the ques: tion suggested (cf. Nerio v. Christen, supra) need not be determined; we refer to it in response to the argument that no more than an issue of fact is made by proof of contradictory assertions by the possessor.

The matter is taken from range of such cases as Stevenson v. Barrow (Tex. Com. App.) 291 S. W. 1101; Harrison v. Orr (Tex. Com. App.) 296 S. W. 871; Southern Casualty Co. v. Hernandez (Tex. Civ. App.) 297 S. W. 544. In respect to hostility, the declarations regarded (in A., T. & S. F. Ry. Co. v. Abraham [Tex. Civ. App.] 209 S. W. 265, and cases therein cited, and in Bruce v. Washington, 80 Tex. 368, 15 S. W. 1104, etc.) as being inconclusive did not, in effect, contradict the plainly asserted hostile intent to claim to marked boundaries, etc. Moor’s testimony on the point in mind is stated in the opinion of the Court of Civil Appeals, and by reference we adopt that statement.

In our opinion: (a) The whole of (this) relevant testimony is qualified by and summarized in this declaration: “I have been claiming it ever since I have been down there against everybody, until such time as they might show me they had rights or something there.” A practical interpretation (exhibited in testimony) is that record title on various occasions was a “showing that they had rights or something there”; and a fact known to Moor throughout most (if not all) of the prescriptive period was that of record title in Thompson, (b) The testimony, thus qualified and summarized, and with the tremendous weight attributable to its source (i. e., as coming from the person upon whom lay the burden of proof in respect to each basis of limitation title, and who had exclusive knowledge of the state of mind involved), discloses possession in subordination to true ownership. Gases cited above; Texas W. Ry. Co. v. Wilson, 83 Tex. 157, 18 S. W. 325; Mhoon v. Cain, 77 Tex. 316, 14 S. W. 24.

3. The tax suit, judgment, and sale therein are presented as interrupting peaceableness of possession (article 5514, R. S. 1925), but decision of the question is unnecessary, and in respect to it we neither express nor imply a conclusion.

4. Accordingly we recommend that the judgments of the district court and Court of Civil Appeals be reversed, and that judgment be rendered for D. A. Thompson, plaintiff in error, denying Lee Moor, defendant in error, all relief prayed by him.

CURETON, C. J. The judgments of the district court and Court of Civil Appeals are both reversed, and judgment rendered for the plaintiff in error, as recommended by the Commission of Appeals.