text:
    BUDD et al. v. HALFORD.
    No. 3671.
    Court of Civil Appeals of Texas. Beaumont.
    June 11, 1940.
    Rehearing Denied June 26, 1940.
    Barnes, McElroy & Hudspeth, of Terrell, for appellants.
    Wynne & Wynne and A. L. Tisdale, all of Wills Point, for appellee.
   O’QUINN, Justice.

This is an appeal from a judgment in a will contest case out of the District Court of Van Zandt County, Texas. George Blasingame died testate, and the contest was over the application of Adelle Hal-ford, the legatee in the will, to probate the will. In the probate court the will was contested by appellants, Leota Budd and her husband, D. D. Budd, and others denominated the heirs of George Blasingame. The grounds of contest were (a) that deceased Blasingame at the time he executed the will was of unsound mind and mentally incapable of making a testamentary disposition of his property; and (b) that in making the will he was unduly influenced and acted under the compulsion of. the proponent and legatee in the will, Adelle Halford. In the probate court the will was admitted to probate, and that order was appealed to the district court of Van Zandt County. There upon a trial before the court without a jury, the will was again admitted to probate and was duly probated. The appeal from the probate court to the district court was taken by F. A. Blas-ingame, Ollie Wimpey, joined by her husband, Clifford Wimpey, Josie Pamplin, joined by her husband, J. M. Pamplin, Della Nichols, a feme sole, Howard Blas-ingame, Callie Dodson, joined by her husband, C. H. Dodson, Jerome Blasingame, Annie Little Lamb, and Leota Budd, joined by her husband, D. D. Budd. The judgment of the district court admitting the will to probate was entered September 21, 1939.

On October 12, 1939, H. F. Blasingame, Ollie Wimpey, joined by her husband, Clifford Wimpey, Josie' G. Pamplin, joined by her husband J. M. Pamplin, and Leota Budd, joined by her husband, D. D. Budd, filed a motion for a new trial. As grounds for the new trial, it was alleged that contestants employed counsel to represent them in contesting the will, and when the will was admitted to probate in the county court, to appeal that order to the district court, “which their said attorney did with diligence” that when the case was called for trial in the district court “movants were not present in court, but that others of the contestants were present; that an offer of compromise was made to their attorney, and the offer was accepted by their said attorney without their knowledge oí consent or authority, and an agreed judgment accordingly entered; that their said attorney was without authority to compromise their case, or to agree to the entry of said agreed judgment, and that they had not agreed to said judgment, but desired their case be passed upon by the jury and court after full hearing of the evi¡dence that the movants had been materially injured by such judgment in that the estate 'of said George Blasingame was reasonably ■worth the sum of $51,000.00, and that they, as heirs at law of said George Blasingame, were entitled to an interest therein of the reasonable value of $17,000.00.”

They further alleged that they had a good defense against the probate of the will for in that they were heirs at law of said George Blasingame, and as such entitled to a portion of his estate; that said .Blasingame at the time he executed the said will was of unsound mind and mentally incapable of executing a will, and because he was unduly influenced to make the will by Adelle Halford, the legatee and proponent of the will. The motion was duly verified.

The cause was regularly tried on September 21, 1939. The motion for a new trial was filed on October 12, 1939. The term of the court would adjourn on. October 14, 1939. The court overruled the motion, the order reading: “On this the 12th day of October, A. D. 1939, at a regular day and term of this Court came on to be heard a motion for New Trial filed herein by H. F. Blasingame, Ollie Wimpey and husband Clifford Wimpey, Josie’ G. Pamplin and husband, J. M. Pamplin, Leota Budd and husband, D. D. Budd, and it appearing to the Court that this cause was originally tried on the 21st day of September, 1939, and judgment was duly entered on said date, and that this motion was not filed for more than twenty days after the rendition of said judgment, and no excuse on behalf of the movants is shown for the failure to file said motion within the time required by law, the same is by the Court therefore in all things overruled, to which action of the Court the movants H. F. Blasingame, et al., objected and excepted, and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas, at Dallas,. Texas.”

We gather from the record that after the motion for a new trial above mentioned had been overruled, and on the same day, appellants, Leota Budd and her husband D. D. Budd, procured new counsel and prepared and filed a second motion for a new trial which was in all respects similar to and a duplicate of the first motion which had been overruled, but to which second motion there was added the statement that this motion was not filed within two days after the rendition of the judgment because they did not know that the case had been set for trial and did not know of the adverse judgment until October 3, 1939, and did not know that anything could be done about it until October 11, 1939, whereupon Mrs. Leota Budd came to Canton to present and urge this motion. When the Court’s attention was called to this second motion, he overruled same for the reasons that the case was regularly tried and judgment entered on September 21, 1939; that on October 12, 1939, a motion for a new trial was. filed by “these movants together with other parties,” which was overruled by the court because said motion was not filed within the time required by law, and no excuse was shown for failing to file same within the time required; and “it further appearing to the Court that this motion (2nd) was not filed until more than twenty days after the entry of the final judgment in this cause, and the motion shows on its face that the movants were negligent and did not act with diligence, and no reasonable excuse is shown for the failure to sooner file said.' motion, the same is by the court therefore in all things overruled,” to which action of the court Leota Budd and her husband, D. D. Budd, excepted and gave notice of appeal to the Court of Civil Appeals at Dallas, Texas.

We have the case on an assignment of error that the court abused his discretion in overruling the motion. Appellants in their brief say that the case was set to be tried on September 21, 1939, and that they were not notified of such setting and were not present when the case was called. The case was set for September 21, 1939, and was tried and judgment entered on that day. The judgment recites that the proponent of the will, Adelle Halford, appeared in person and by attorney, “and came contestants (naming them, and among them were appellants here, Leota Budd and her husband, D. D. Budd,) in person and by their counsel, and announced ready for trial, and a jury being waived by the parties, in open court, all matters of law and fact were submitted to the court, who after hearing all the pleadings, evidence and argument of counsel, and being fully advised as to the law,” etc., judgment was rendered admitting the will to probate. So the record shows that appellants and their counsel were present and participated in the trial of the case.

Appellants insist that the judgment entered was an agreed judgment, the agreement for same having been made by their counsel who was not authorized to make such agreement, and to which said agreement they did not assent, and that they had no knowledge of such agreement, and so the agreed judgment was without authority and was not binding upon appellants, and that upon learning of such judgment they, appellants, employed other counsel to protect their rights in the premises. This contention is in the face of the record. As before stated, the court recited in his judgment that contestants, naming them, including appellants, Leota Budd and her husband, D. D. Budd, were present and announced ready for trial. It should be presumed that tire record speaks the truth and the Honorable Trial Judge did not falsify the record. Furthermore the judgment, evidenced by its recitals, was not an agreed judgment, but was a_ judgment rendered upon hearing, evidence, argument of counsel, and full consideration by the court. We are inclined to believe that counsel who prepared the motion for a new 'trial and who did not try the case, was not correctly informed of the real proceedings in the case had theretofore. It must have so occurred because these contentions are not supported by the record.

Did the court abuse his discretion in refusing the motion for a new trial? We think not. The motion was not filed until three weeks after the rendition of-the final judgment. This was not in compliance with the requirements of the law. Article 2232, R.C.S. Moreover, the court was preparing to adjourn, and to try the case again would in all probability require more time than was at hand in the closing hours of the court, and so would necessitate a continuance of the cause to the next term of the court. The court had full knowledge of all the circumstances surrounding the trial had on September 21, 1939, and as appellants admit they had knowledge of the judgment and its import on October 3, 1939, still they did not at once take steps to secure a new trial, but delayed until October 11, 1939, because they say, “they didn't know that anything could be done about it until October 11th,” when they had prepared and filed a motion for a new trial. This was three weeks after the rendition and entry of the final judgment. It shows lack of diligence. The opposite party would have been entitled to notice of the filing of the motion, and time in which to have answered it, and the term of the court about to expire, the court was justified in overruling it on that ground. 31 Tex.Jur. p. 120, sec. 108; Glover v. Pfeuffer, Tex.Civ.App., 163 S.W. 984, writ refused; Metts v. Waits, Tex.Civ.App., 286 S.W. 923; Monarch Petroleum Co. v. Jones, Tex.Civ.App., 232 S.W. 1116. Many authorities so holding could be cited.

Appellants in their motion for a new trial allege that they had a good and meritorious defense against th'e probation of the will for in that deceased, George Blasingame, at the time he executed his will was of unsound mind and incapable of making testamentary disposition of his property, and that he was unduly influenced to execute the will by the arguments and importunities of the proponent of the will, Adelle Plalford, who was chief legatee in' said will, and that because of feebleness he yielded to the importunities and compulsion of said Adelle Halford, and in the making of the will did not act of his own free will, but under the influence of Adelle Halford. We think the record reflects that these matters were alleged and heard and passed upon in the trial on September 21st for the judgment recites * * * and it being proven to the satisfaction of the court that this court had jurisdiction of this estate; that every citation required by law had been duly issued and served in the manner and form and for the length of time required by law, and that the testator, George Blasingame, at the time he executed the will, introduced in evidence herein, on the 21st day of July, 1936, was over twenty-one years of age, and a person of sound mind, and that said will was executed as his own act and deed, uninfluenced, and not coerced by any person, or combination of persons, and that such testator made and executed such will with all the formalities and solemnities and under the circumstances required by law to make the same a valid will, and the same has not been revoked by such testator, etc.,” and then follows other findings of fact and pronouncement of judgment. From these recited facts the court found and pronounced in his judgment that deceased, George Blasingame, was of sound mind and not acting under the influence or compulsion of any person at the time he executed his will. These findings evidence the hearing of these issues in the trial, and that the allegations were without support. The court had full knowledge of all this, and in the exercise of his discretion did not deem it necessary in order to do justice to set aside his findings on the very issue already heard. We do not think any abuse of discretion is shown.

The judgment is affirmed.


source: Caselaw Access Project

author: BLAIR, Justice.

license: Public Domain

text:
    ASHBY et al. v. BOARD OF MEDICAL EXAMINERS OF TEXAS.
    No. 9012.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1940.
    Rehearing Denied July 10, 1940.
    L. J. Wardlaw and J. E. Whitmore, both of Fort Worth, for appellants.
    Gerald C. Mann, Atty. Gen., and Ocie Speer and Morris Hodges, Asst. Attys. Gen., for appellees.
   BLAIR, Justice.

Appellants, Hubert Milton Ashby and eleven other non-resident osteopaths, instituted this proceeding against appellee, the Texas State Board of Medical Examiners, to compel it to issue to them a reciprocity license to practice medicine in Texas, claiming the right to such a license under the provisions of Articles 4500, 4501, and 4503, R.S.1925, as amended in 1939. Acts 46th Leg., 352, Vernon’s Ann.Civ.St. Arts. 4500, 4501, 4503. They alleged that each of them had been licensed to practice osteopathy by the State of Missouri and other states, but as to the latter no contention is here made; that each of them held a diploma from a reputable medical college as defined by the Texas statutes; and that each of them was entitled to a reciprocity license to practice medicine in Texas without being required to take the examination for a license to practice medicine as prescribed by Arts. 4501 and 4503, R.S.1925, as amended in 1939, Vernon’s Ann.Civ.St. arts. 4501, 4503. Appellants further alleged that allopaths with licenses from the same states and with the same medical educational requirements were being granted licenses to practice medicine in Texas without examination by appellee Board, which constituted an arbitrary discrimination by the appellee Board against the School of Osteopaths in favor of the School of Allopaths, in violation of Art. 16, Sec. 31, of the Texas Constitution, Vernon’s Ann. St., which provides that “the Legislature may pass laws prescribing the qualifications of practitioners of medicine in this state, and to punish persons for malpractice, but no preference shall ever be given by law to any schools of medicine.” Appellee Board answered that neither of the appellants was entitled to a license to practice medicine in Texas under the reciprocal arrangements provided for by Art. 4500, as amended in 1939, because each of them held only a limited license to practice osteopathy in Missouri, which did not meet the “requirements for medical registration and practice equal to those established by the laws of this State”, Arts. 4500, 4501 and 4503, as amended in 1939'; and that in consequence the appellee Board did not act arbitrarily nor discriminatorily in refusing each of the appellants a reciprocity license to practice medicine in Texas without an examination as required by Art. 4503, as amended in 1939; and that the appellee Board had offered to permit appellants to take the examination required of all who desired a license to practice medicine in this State; which they refused to do.

The trial court sustained the action of the appellee Board; hence this appeal.

The Texas Medical Practice Act (Arts. 4495 to 4512, R.S.1925, as amended by Acts 46th Leg., 352, Vernon’s Ann. Civ. St. arts. 4495 to 4512), is a comprehensive effort on the part of the Legislature to regulate the practice of medicine in this State. It is an exercise of the police power of the State to protect the public health of the people of this State. It requires that all who desire to “practice medicine,” as that term is defined, shall pass an examination given by the appellee Board touching their knowledge of the twelve fundamental subjects named in the statutes, and other matters, and who shall possess certain educational, citizenship, and moral requirements. Appellants have been licensed to practice osteopathy by the state of Missouri, which does not authorize them to practice medicine in Missouri; and in fact they are prohibited from practicing medicine by the administration of drugs except as limited. They are examined by the Osteopathic Board of Missouri in only seven of the twelve subjects required of a practitioner of medicine in Texas, and Texas does not recognize any particular school of medicine as such, but requires that all schools of medicine be examined in twelve fundamental subjects before practicing any art of healing the sick in Texas.

By their reply brief appellants admit that they are not entitled to reciprocal licenses, because the Legislature has authorized the issuance of reciprocity licenses, Art. 4500, as amended in 1939, only “to licentiates of other States * * * having requirements for medical registration and practice equal to those established by the laws of this State”; and to licentiates of other states who “hold a license * * * giving to him the same right to practice medicine in the State * * * issuing said license which a license to practice medicine in this State gives to a physician of this State in Texas.” Appellants contend, however, that the appellee Board is discriminating against them by granting reciprocity licenses to Missouri allopaths who have the same deficiency as do appellants under the Texas laws. That is, appellants insist that the Texas law prescribes twelve fundamental subjects for examination for a license to practice medicine, while the Missouri law requires only-seven subjects for both .allopaths and osteopaths; and that therefore neither the Missouri allopath nor the Missouri osteopath has requirements “equal to those prescribed by the laws of Texasand that neither is entitled to a reciprocity license to practice medicine in Texas.

Having admitted that they have no right to a reciprocity license, we do not know of any authority vested in appellants, nonresidents of Texas, to bring this sort of proceeding. Manifestly, a decision by this court as to licentiates of the Missouri Allopathic School who have been issued reciprocity licenses by appellee Board cannot bind such licentiates, because they are not parties; and neither the appellants nor this court have any right to require or have entered a declaratory judgment as to future applicants for a reciprocity license. If a person is not entitled to practice medicine in Texas, then the Legislature has provided a complete remedy against his practicing, by enacting various criminal statutes, and by enacting Art. 4509, which provides a complete remedy against the unlawful practice of medicine by injunction, the proceeding to be brought by either the Attorney General, a district or a county attorney.

But if appellants may raise the question of discrimination, then they failed to prove any discrimination against themselves and in favor of the Missouri allo-paths. The Missouri allopaths and osteopaths were each refused a reciprocity license by appellee Board prior to the 1939 amendment of Art. 4500, which amendment, among other things, prohibited those holding only a limited license to practice medicine in another state from obtaining a general license to practice medicine in Texas under the reciprocal arrangements prescribed by Art 4500, as amended. After such amendment the Attorney General ruled and the appellee- Board held that Missouri • osteopaths, who held only a limited license to practice osteopathy in Missouri, were not entitled to a reciprocity license to practice medicine in Texas. This ruling and decision are manifestly correct because the limited license to practice osteopathy in Missouri did not meet the requirements of the Texas statutes authorizing the issuance of reciprocity licenses “to licentiates of other States * * * having requirements for medical registration and practice equal to those established by the laws of this State.” Manifestly, there is no rule of reciprocity which would compel Texas to grant a Missouri osteopath a general license to practice medicine when the state of Missouri prohibits him from practicing medicine, and limits him to the practice of osteopathy. If such were the rule, then the Texas requirements that all schools of medicine possess certain fundamental knowledge of medicine would be destroyed, and the osteopaths would themselves be given a preference over other schools of medicine in violation of our fundamental law. Numerous cases of both the Court of Criminal Appeals and the civil courts of this state hold that the provision of our Medical Practice Act, requiring an examination for all who desire a license to practice medicine as defined by our statutes, does not contravene Art. 16, Sec. 31 of our Constitution inhibiting preference or discrimination against different schools of medicine. Germany v. State, 62 Tex.Cr.R. 276, 137 S.W. 130, 132, Ann.Cas.1913C, 477; Kenedy v. Schultz, 6 Tex.Civ.App. 461, 25 S.W. 667; Dowdell v. McBride, 92 Tex. 239, 47 S.W. 524; Johnson v. State, Tex.Civ.App., 267 S.W. 1057; Robertus v. State, 119 Tex.Cr.R. 370, 45 S.W.2d 595; Allison v. State, 127 Tex.Cr.R. 322, 76 S.W.2d 527, appeal dismissed by United States Supreme Court, 295 U.S. 717, 55 S.Ct. 828, 79 L.Ed. 1672; Id., 296 U.S. 661, 56 S.Ct. 82, 80 L.Ed. 471.

Since the 1939 amendment of art. 4500, prohibiting the granting of reciprocity licenses to licentiates of other states who held only a limited license to practice medicine in such states, the appellee Board has apparently construed the Texas Medical Practice Act as giving it discretionary power or authority to grant reciprocity licenses to practice medicine to licentiates of other states who hold a license to practice medicine which give “to [them] him the same right 'to practice medicine in the State * * * issuing said license which a license to practice medicine in this State gives to a physician of this State in Texas;” and accordingly appellee Board has granted to some Missouri allopaths who held a license to practice medicine in all of its phases reciprocity licenses to practice medicine in this state. Appellants contend that this construction of the statute discriminates against them, and that such construction renders the sentence quoted repugnant to Art. 16, Sec. 31 of the Texas Constitution, in that it is tantamount to saying to them that if you only practice osteopathy in Missouri, you cannot receive a reciprocity license to practice osteopathy in Texas, thus making their right to a reciprocity license depend upon whether or not they could practice any and all of the healing arts.

The Legislature has in accordance with the constitutional mandate provided for examinations relating to all who desire to practice medicine, which examinations are the same as regards all schools of medicine, and such requirements do not prefer any school of medicine in contravention of the Constitution, because such requirements apply to all persons alike. Our statutes simply define a practitioner of medicine, and require that he shall pass certain examinations touching his qualifications before he may obtain a license to practice any art of healing. When so licensed he may practice all of the arts of healing without regard to any school of medicine to which he may belong. Manifestly, he cannot contend that because he belongs to' a certain school of medicine or does not desire to practice all of the arts of healing, that he may take only such examinations as he may think will qualify him to practice one school of medicine or one art of healing. Nor does the fact that the statutes in question do not prohibit him to do so render them repugnant to the constitutional inhibition against the preferment of any one or more schools of medicine. The State Constitution and our statutes are not concerned with any particular school of medicine. They apply to all schools of medicine and all persons alike, in that they provide that all who desire to practice medicine shall pass certain examinations relating to their qualifications, which entitles them to practice any one or all of the arts of healing.

Nor does the fact that appellee Board has granted reciprocity licenses to some Missouri allopaths without examination discriminate against appellants. Appellants do not possess the statutory requirements for a statutory reciprocity license, and having no right in the matter, they cannot complain of the action of' the Board as to others who possess other qualifications different from their own. The subjects of examination required of Missouri allopaths were not the same as those required of the Missouri osteopaths. And suffice it to say that while Missouri allo-paths are required to take examinations only in seven subjects, they are issued a license by the state of Missouri to practice medicine in all;of its phases, the same as the Texas license authorizes its practitioners to practice medicine in all of its phases, although the Texas/ practitioner is required to be examined in twelve subjects. Whether the seven subjects on which the Missouri allopaths are required to be examined substantially cover the twelve, subjects on which Texas practitioners of medicine are required to be examined, is a matter within the discretion of appellee Board; and there was no proof whatever that this was not true in the instant case.

The judgment of the trial court is affirmed.

Affirmed.


author: BAUGH, Justice.

text:
    ECKERT et al. v. JACOBS et al.
    No. 9004.
    Court of Civil Appeals of Texas. Austin.
    June 26, 1940.

      Trueman E. O’Quinn and Horace W. Moreloclc, both of Austin, for appellants.
    Cofer & Cofer, of Austin, for appellees.
   BAUGH, Justice.

Appellees, as plaintiffs below, sued to enjoin the City of Austin, and its named officers, from interfering with the sale of beer and wine by Jacobs at and upon his place of business at 1816 San Jacinto Street. After a hearing, a temporary injunction was granted as prayed for; hence this appeal.

While Jacobs, as tenant, was joined in this suit by the owner of the property, he is the party primarily interested and will be referred to as appellee. And for convenience the appellants will be referred to as the City.

The suit involves the validity, and application to appellee, of the general comprehensive zoning ordinance adopted by the City in July, 1937. It classified all properties within the city, that here involved, facing upon San Jacinto Street between 15th Street and 19th Street, being classified as “C-2” Commercial, on which sale of beer was thereafter prohibited, but excepted therefrom those already legally engaged in such business in this area at the time the ordinance took effect. Jacobs knew these facts when he leased said premises in June, 1939. He first applied for a permit from the City to sell beer on said premises, which was denied. He then sought a reclassification of these premises so as to authorize the sale of beer under the ordinance, and this was unanimously denied' by the Zoning Board and by the City Council. He thereupon filed this suit.

The grounds asserted were that the ordinance was invalid in several specific respects ; or, if valid, that it was sought to be enforced against him in a discriminatory manner. ’ The asserted invalidity was predicated upon the following contentions :

1. That it violated Sec. 10 of Art. I of the Constitution, Vernon’s Ann.St., and Art. 3 of the Penal Code, in that it made a violation thereof a criminal offense; and was so indefinite and uncertain as to be void. This for the reason that the ‘area involved was not defined by any field notes, monuments or natural objects, but only by reference to a “Use District Map” which was attached to, and by reference made a part of, the ordinance.
2. That it violated the City Charter provision, in so far as the map was concerned, requiring all ordinances to be signed by the Mayor, or two Councilmen, and to be recorded before same became effective.
3. That the area involved was arbitrarily zoned contrary to the actual facts as they then existed.
4. That it was in conflict tvith Art. 667 — 10½ Penal Code as amended, Vernon’s Ann.P.C. art. 667 — 10½ (see Acts 44th Leg. 2nd C.S., Ch. 467, p. 1795; amended by Acts 45th Leg. 1st C.S. Ch. 13, p. 1768), commonly known as the Liquor Control Act.

We do not find it necessary to determine whether the ordinance in question is sufficiently definite and certain as a penal ordinance to sustain a criminal conviction for a violation of it or not. This is not a criminal prosecution and that issue is not here presented. This is a civil proceeding involving the exercise by the City of its police power to regulate, by inhibiting in defined areas of the City, the right to carry on a character of business which the citizen does not have the inherent right under the Constitution and laws of the State to engage in; but one which he may engage in only by permission of the State. Even if the penal provisions are invalid, which we do not determine, that would not necessarily render void the other provisions as a zoning regulation which constitute a rule of civil conduct. As to the latter, the rule of strict construction does not apply; and an act which is insufficient as a penal act may still he valid as a rule of civil conduct. West Texas Coaches v. Madi, Tex.Com.App., 26 S.W.2d 199; Houston & T. C. Ry. Co. v. Stevenson, Tex.Com.App., 29 S.W.2d 995; 42 C.J. 631. Criminal prosecution was not the only method by which the City could enforce such ordinance, hence the criminal provisions are severable from the regulatory provisions. Violation of the latter could, under the express provisions of the ordinance itself, have been effectively enforced by injunction against the pursuance of such business in prohibited areas.

The ordinance proper did not undertake to define classified areas in the City by metes and hounds nor by lot and block numbers on the streets and avenues of the City. It referred to and made a part of the ordinance an official “Use District Map” attached thereto. Appellee urges that this map was not recorded as required by law and by the City Charter, until after this suit was filed. While this original map was, it appears, at one time detached from the original ordinance for the purpose of making official copies thereof for use by the City; no contention is made that such map did not correctly reflect and delineate the true location and classification for zoning purposes of all the properties within the City. The map was available, as a part of the ordinance, for public inspection at all times, and readily disclosed the zoning classification of the property involved. Appellee Jacobs encountered no difficulty in ascertaining the classification of the property involved and knew such facts before he leased it. So far, therefore, as the zoning classification was concerned, we think this ordinance by reference to, and by expressly making a part thereof, an official map attached to it, which was at all times available for public inspection, and the correctness of which is not questioned, was sufficiently definite and certain to inform anyone of the zoned status of any area in the City, and to readily disclose the classification of the property involved. As a rule of civil conduct, and in the exercise of the police power by the City, such zoning ordinance, the general character of which has been repeatedly before the courts of the' country, was valid. While the exact contention here made was not urged in Lombardo v. City of Dallas, 124 Tex. 1, 73 S.W.2d 475, the ordinance there involved contained the same provision as the ordinance here involved — that is, making the map attached thereto, which delineated the zoned areas, a part of the ordinance by reference. The Supreme Court sustained that ordinance as valid. The power of a home rule city under its charter, and under the express provisions of Arts. 1011a to lOllj, Vernon’s Ann.Tex. Stats., to enact such ordinances, is now well settled. City of Amarillo v. Stapf, 129 Tex. 81, 101 S.W.2d 229; City of West Univ. Place v. Ellis, Tex.Com.App., 134 S.W.2d 1038; Lombardo case supra and numerous cases therein cited.

We do not here have any question of delegation of unauthorized power to the zoning board, nor of investing them with an arbitrary discretion in the premises. The ordinance itself, duly enacted, made the classification; and unless, it be shown to be unreasonable, arbitrary, or discriminatory, it is valid regulation. It is immaterial whether the area involved was wholly commercial or partly residential and partly commercial. The proposed business of selling beer and wine on the premises was not one which Jacobs had the inherent right to engage in. It is a matter of common knowledge that the sale of intoxicants is accompanied with objections not common to other types of commercial enter-prizes, and such facts constitute valid grounds for a separate classification or prohibition thereof in a given commercial area, for the protection of the health, morals, safety, peace and convenience of the public. The premises involved in the instant case were upon a main traffic artery of the City, in the vicinity of the University of Texas, and in an area partly residential. Clearly, the classification made by the City prohibiting the sale of liquors therein had ample grounds to sustain it.

Nor does the provision of the ordinance authorizing a continuation of a non-conforming use in said area render the ordinance invalid. This portion of the ordinance (Sec. 10) authorized those already legally engaged in a thereafter prohibited use to continue such business, but expressly provided against further expansion of such business, and if once discontinued, that such non-conforming use might not thereafter be renewed; and that in case of damage or loss of the building in which such non-conforming business was being conducted, restoration must be made within twelve months thereof and to an extent not to exceed 75% of the assessed tax valuation thereof immediately prior to such loss or damage. This provision discloses a clear purpose to limit and eventually eliminate such non-conforming uses; not to enlarge them or permit other non-conforming uses.

The authorizations by ordinance of the continuation of such non-conforming uses, already legally established in such areas when the ordinance takes effect, has been uniformly recognized; and such provisions have repeatedly been held not to render them invalid; and not to amount to unreasonable discrimination against others desiring to engage in additional nonconforming uses. Such ordinances operate prospectively and not retroactively. Undoubtedly these provisions are designed to avoid running afoul of the constitutional provisions against taking of property without compensation and guaranteeing due process of law. In any event, they have been repeatedly sustained. See Lombardo v. City of Dallas, supra, 73 S.W.2d at page 478; Austin v. Older, 1938, 283 Mich. 667, 278 N.W. 727; Zahn v. Los Angeles Board of Public Works, 195 Cal. 497, 234 P. 388; City of Miami v. Green, 131 Fla. 864, 180 So. 45; Landay v. MacWilliams, 173 Md. 460, 196 A. 293, 114 A.L.R. 984, and annotations thereunder. _

Nor does the City ordinance in question contravene the above cited provisions of the Liquor Control Act. Art. 667—10½ P.C. as amended. These provisions are:

“In any incorporated city or town where the sale of beer as defined in the Texas Liquor Control Act is prohibited by charter or amendments thereto or by any ordinance from being sold in the residential section, such charter amendments or ordinances shall remain valid and continue effective until such time as such charter provisions, amendments or ordinances may be repealed or amended.
“All incorporated cities and towns are hereby authorized to regulate the sale of beer within the- corporate limits of such cities and towns by charter amendment or ordinance and may thereby prescribe the opening and closing hours for such sales; such cities and towns may also designate certain zones in the residential section or sections of said cities and towns where such regulations for opening and closing hours for the sale of beer shall be observed or where such sales may be prohibited.”

The Act was manifestly one of restriction, not of enlargement, of the sale of intoxicating liquors. Clearly it was in nowise intended as a limitation upon the police powers of cities granted to them under the home rule amendment to the Constitution. Vernon’s Ann. St. Const, art. 9, § 3; by Arts. 1175 and 1176, R.C.S.1925; and by Arts. 1011a to 1011 j, Vernon’s Tex. Stats, as amended. To construe the Liquor Control Act as limiting the powers of the City, in zoning ordinances affecting sale of liquor, to the terms and conditions therein stated, would make that Act, so far as liquor zoning is concerned, repeal many other provisions of the statutes giving broad governing powers to home rule cities. This obviously was never intended by the Legislature. This question was decided against appellee’s contention in Pitre v. Baker, Tex.Civ.App., 111 S.W.2d 359, and in Tritico v. Liquor Control Board, Tex.Civ.App., 126 S.W.2d 738.

Nor was the ordinance rendered discriminatory by the fact, if such were true; that by acquiescence by some city officials in some particular violation of it, by permitting a transfer of a non-conforming permit or license to sell beer from one person to another in some other restricted area; or by the granting of an isolated permit to sell beer in some other prohibited area without official action thereon by the zoning board. The City cannot be estopped to enforce its valid zoning ordinances, merely by the failure of some of its officers to do so on other occasions, or in other instances. Nor would the acts of some of its officials in attempting to authorize its violation, or failure enforce such ordinances, render them invalid or inoperative. Leigh v. City of Wichita, 148 Kan. 607, 83 P.2d 644, 119 A.L.R. 1503, and annotations thereunder.

Having reached the conclusion that the ordinance attacked is valid; and that in its enforcement against appellees no discrimination resulted, it follows that the trial court erred in granting the temporary injunction herein appealed from. The injunction granted is therefore dissolved and the cause is reversed and remanded.

Injunction dissolved; cause reversed and remanded.


author: BROWN, Justice.

text:
    DULANEY INV. CO. v. WOOD.
    No. 14087.
    Court of Civil Appeals of Texas. Fort Worth.
    May 24, 1940.
    Rehearing Denied July 12, 1940.

      Buck & Knapp and John Snyder, all of Fort Worth, for appellant.
    Houtchens & Houtchens, Lloyd H. Burns, and J. Harold Craik, all of Fort Worth, for appellee.
   BROWN, Justice.

Appellee brought suit against appellant to recover damages for alleged personal injuries sustained while a passenger in appellant’s elevator, which is used in connection with appellant’s office building — a building in which offices are rented to tenants by the appellant.

The grounds of negligence relied upon are reflected in the special issues submitted, as well as are the special defenses. The material findings are: (1) that defendant’s employee in charge of the elevator failed to exercise ordinary care to see that plaintiff was away from the elevator door before he started the elevator, (2) that this act was negligence, and (3) a proximate cause of the injuries sustained by plaintiff, (4) that the failure of defendant to provide a door on the. elevator cage was negligence, and (5) a proximate cause of plaintiff’s injuries, (6) that the operator failed to give the plaintiff sufficient time to get his balance and footing before he started the elevator, (7) this was negligence, and (8) a proximate cause of plaintiff’s injuries, (9) that the operator failed to warn plaintiff to stand back from the entrance to the elevator door before starting the elevator, (10) that such act was negligence, and (11) a proximate cause of plaintiff’s injuries, (12) that the failure of the defendant to have some character of guard across the entrance of the cage was negligence, and (13) a proximate cause of plaintiff’s injuries, (14) that it was not an unavoidable accident, (15) that plaintiff was injured on the occasion in question and (16) his damages set at $7,500; the jury, on the defensive issues, found, (1) that plaintiff did not fail to keep a proper lookout for his own safety immediately after entering the elevator, (2) that he did not fail to stand hack from the extreme front end of the elevator, when there was sufficient space to the sides and rear for him to have assumed a safer position, (3) that he did not attempt to turn or move about while the elevator was in motion, (4) that the operator did not warn plaintiff to stand back from the entrance prior to the time he put the elevator in motion, (S) that plaintiff did not fail to keep every portion of his body from extending beyond the west side of the elevator on the occasion in question, (6) that plaintiff did not fail to keep every portion of his arm from extending beyond the west side of the elevator on the occasion in question, (7) that plaintiff did not lose his balance by reason of being jostled by another passenger or passengers.

The- proof shows that plaintiff’s right arm at or about the elbow was struck by the floor on which he boarded the elevator, or on the floor next below, as the elevator descended.

Judgment was rendered for plaintiff, and the defendant has appealed, presenting twenty-four propositions as germane to certain assignments of error.'

The first eight propositions are grouped because of their kinship and will be considered together. The first asserts that the evidence adduced raised no issue of negligence on the part of the defendant, and the trial court erred in refusing to grant defendant’s motion for an instructed verdict; the second is a restatement of the first; the third asserts that the trial court erred in entering judgment for plaintiff based on the jury’s answer to issue No. 3 (a finding that appellant failed to exercise ordinary care to see that appellee was away from the door before the elevator was started), because the undisputed evidence shows that the elevator was not started until appellee had taken a safe and secure position, several inches from the front of the elevator and the subsequent blow received by appellee was caused solely by his negligent conduct in extending his arm out into the elevator shaft; the fourth asserts that the trial court erred in rendering judgment for appellee based on the answer to issue No. 6 (a finding on the failure of appellant to provide a door on the entrance to the elevator), because as a matter of law such failure could not constitute negligence, and the undisputed evidence shows that the sole cause of appellee’s injury was his negligent conduct in extending his arm out into the elevator shaft while it was in motion; the fifth asserts that the trial court erred in rendering judgment for appellee based on the answer to issue No. 8 (a finding that the operator failed to give appellee sufficient time in which to get his balance and footing in the elevator before starting same), because the only testimony shows that appellee had taken a firm and secure position with his back to the north wall of the elevator and several inches from'the front of the eleva-tqr before it was started, and the undisputed evidence shows that the sole cause was appellee’s act and conduct as outlined in the preceding propositions; the sixth asserts that the court erred in rendering judgment for appellee based on the answer to issue No. 11 (a finding that the edge of the fourth and fifth floors of the building extend beyond the collapsible doors of the elevator shaft in such a manner that the edges of the floors are in close proximity to the doorway of the elevator cage), because as a matter of law such construction is the only method of construction of a building with like elevators, and is a proper method of construction, and the undisputed evidence shows that appellee was injured through his own negligent acts and conduct, as stated in the preceding propositions; the seventh asserts that the court erred in rendering judgment for appellee based on the answer to issue No. 14 (a finding that the operator failed to warn appellee to stand back from the entrance before the elevator was put in motion), because there is no testimony showing any necessity for so warning appellee, in that he was. in a safe position, being several inches from the front of the elevator, but for his said negligent acts and conduct; the eighth asserts that the court erred in rendering judgment for appel-lee based on the answer to issue No. 17 (a finding that appellant was negligent in failing to have some character of guard across the entrance to the elevator), because as a matter of law such construction could not constitute negligence, and the undisputed evidence shows that ap-pellee was injured through his own negligent acts and conduct, as stated in the preceding propositions.

We see no merit in these propositions.

The plaintiff below: brings his suit on the theory that the failure of the appellant to maintain a door or some guard across the entrance to the elevator is negligence because that brings about a dangerous condition to which- passengers in the elevator are exposed, and he further contends that the elevator was started by the operator before plaintiff could take his place in the elevator and secure a footing. We take this last allegation to mean that plaintiff sustained the blow to his elbow, or arm, before he could go far enough into the elevator to get to a place of safety.

It was admitted that elevators constructed with doors to the cage, or with guards, afford greater protection than those with no doors, or guards; and that the more modern construction is with doors, or guards. That there are now in use about fifty per cent of each kind.

Plaintiff testified that he had just stepped into the elevator when it started down and his elbow was struck by the edge of the floor from which he stepped; that the accident occurred immediately after he took one step and turned slightly-

We are of opinion that whether or not the operation of the elevator without a door or guard constituted negligence was an issue for the jury.

In Farmers & Mechanics National Bank v. Hanks, 104 Tex. 320, 137 S.W. 1120, 1124, Ann.Cas.1914B, 368, in speaking of the duty owed by the owners of passenger elevators to their passengers, the Supreme Court says: “Nevertheless, with reference to the safety of their passengers, the law has imposed upon the proprietors of passenger elevators duties precisely similar to those exacted of passenger carriers by railroad. The safety and lives of those who avail themselves of this means of carriage must of necessity be intrusted in great measure to the care of those who control and operate the cars. The law therefore justly holds that, while the owners of passenger elevators are not insurers of the safety of their passengers, they are bound to exercise in their behalf the highest degree of skill and foresight, or, as some courts have expressed it, the utmost human care and foresight consistent with the efficient use and operation of the means of conveyance employed.”

This seems to be the last expression by our Supreme Court on the subject discussed.

We find where the Court of Civil Appeals for the Fourth District said, in City National Bank v. Pigott, 270 S.W. 234, 236: “The elevator operator is required to exercise the highest degree of care to so operate his vehicle as not to injure those lawfully upon or lawfully entering or leaving it.”

The testimony is conflicting and ap-pellee’s testimony raises the several issues of fact that were submitted to the jury.

The trial court was not authorized, in the light of the record, to instruct the jury to find for the defendant, and the findings made by the jury having support in the evidence, we overrule the first . eight propositions and the assignments of error to which they are germane. .

If we concede that proposition No. 6 is well taken, in that the construction of the floors at the elevator shaft could not be made the basis of an issue of negligence, there is no merit in the contention because the trial court had other material findings of the jury which support the judgment.

Munsey v. Webb, Adm’r, 231 U.S. 150, 34 S.Ct. 44, 58 L.Ed. 162, supports our conclusions.

The ninth proposition contends that the trial court erred in refusing to give the defendant a peremptory instruction because the evidence shows that the plaintiff was guilty of contributory negligence as a matter of law.

We do not so construe the evidence and the jury has found in answer to each issue predicated upon contributory negligence that the plaintiff was guilty of none such.

The tenth proposition contends that the jury was guilty of misconduct in that they considered the effect of their answers to the issues submitted and improperly entered into an agreement to and made answers to these issues to give a verdict for the plaintiff.

Eleven of the jurors were questioned and the trial court heard their statements. They denied that any such agreement was had. The trial court believed them and overruled the motion for a new trial.

We cannot, in the light of this record, go back of the trial court’s finding.

The eleventh proposition contends that the trial court erred in defining “new and independent cause” as “the act or omission of a separate and independent agency which destroys the causal connection between the negligent act or omission of the defendant and the injury complained of, and thereby becomes, in itself, the immediate cause of such injury”, because this constituted a comment of the court on the weight of the evidence in that it constituted an indication by the court to the'jury that defendant did commit a negligent act or omission, which was a disputed issue of fact in the case.

, As we view this record , (which we have had under consideration for some time), there was no necessity for incorporating the term “new and independent cause” in the court’s charge, but the defendant had pleaded that some other passenger on the elevator had jostled the plaintiff and brought about the accident and that this was the cause of the accident.

The trial court submitted this issue to the jury in response to defendant’s theory of the case.

We do not see error in the charge warranting a reversal. See International & G. N. Ry. Co. v. Pence, Tex.Civ.App., 113 S.W.2d 206, writ dismissed, .and cases cited.

The twelfth proposition contends that the trial court erred in not declaring a mistrial because the jury was allowed to reconsider their answer to the issue on unavoidable accident, after indication by appellee’s counsel that the answer was against his interest.

We see no error in the conduct of the court, but we do not find any evidence raising the issue of unavoidable accident, and the issue should not have been submitted.

It follows that, even though erroneous, the error would not require a reversal.

The thirteenth proposition is practically the same as the twelfth.

The fourteenth proposition contends that the trial court erred in failing and refusing to define “proximately contributed”, that being a legal term used in the charge and proper objection having been made thereto.

We find that the matter arose under the following conditions: the court properly gave and defined “proximate cause” and there is no complaint of this; then the court submitted the several issues touching upon the plaintiff’s acts of contributory negligence, and then required the jury, if an act of contributory negligence were found, to find whether or not such act was a proximate cause of plaintiff’s injury, and then the trial court went. further for the defendant and submitted next the following issue: “Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to issue No. 28, proximately contributed to the injuries, if any, sustained by the plaintiff ?” A similar charge was given in connection with every issue of contributory negligence until the court reached issues Nos. 40 and 41, when the court combined “proximate cause” and “proximately contributing cause” all in a single charge as follows : “Do you find from a preponderance of the evidence that such negligence, if any you have found in answer to Issue 40, was a proximate cause, or proximately contributing cause of the injuries, if any, sustained by the plaintiff?”

The charge as to issue 42 is like that just quoted.

First, we desire to say that we cannot imagine a cause that is a “proximately contributing cause” that is not a proximate cause, neither can we imagine a cause that is a “proximate cause” without its being a proximately contributing cause. We are of opinion that the charge is altogether • tautological.

We confess that we are not able to give a definition of “proximately contributing cause”. We have never seen such a definition and we decline to undertake to write one.

The trial court having correctly defined and submitted the issue of “proximate cause”, the additional special issues and the use of these words in the other issues noted were unnecessary and .superfluous. They were given for the defendant’s benefit and we see no reversible error in the failure to define such term.

Furthermore, the defendant has not been injured by the charges, if there is error in the failure to so define the “term”, or expression, because the jury was never called upon to consider the issues, having found that the plaintiff was not guilty of any of the acts of contributory negligence and these supplemental and incidental issues were submitted to the jury conditioned upon a finding or findings of the several acts of contributory negligence.

The opinion in the case of Dixie Motor Coach Corp. v. Swanson et al., Tex.Civ.App., 41 S.W.2d 436, does not disclose that the disposition of the appeal hinged upon what is said in the opinion in the last paragraph under point 2 (found on page 439 of 41 S.W.2d), and we are of opinion that the holding does not control in the instant case. In fact, the first authority cited—Dallas Ry. Co. v. Warlick, Tex.Com.App., 285 S.W. 302,—seems to support our views. See, also, International & G. N. Ry. Co. v. Pence, Tex.Civ.App., 113 S.W.2d 206, writ dismissed, and cases cited.

We see no error in the proposition complaining of appellee’s counsel’s argument (No. 15).

By propositions 16, 17 and 18, it is contended that the trial court erred in refusing to permit appellant to interrogate the witnesses McNaughton, Anderson (operator of elevator) and Muse with respect to having seen any other accident occur in any of the elevators.

Such evidence is admissible in some jurisdictions, but that is not the case in Texas.

Vol. 30, Texas Juri., page 821, Sec. 144, states the rule and cites authorities.

By the nineteenth proposition it is contended that the trial court erred in refusing to exclude the testimony of ap-pellee, on direct examination, wherein he testified that his greatest fear was paralysis, such being a conclusion <of the witness and being prejudicial and inflammatory.

We know of no similar situation and have been cited none, but it appears to us that where the plaintiff has testified to a physical condition tending to show a partial loss of use of one arm and one leg, since the accident, it was not error to permit him. to testify to his fear of paralysis. If that is not a part of his “mental anguish” occasioned by the injury received, then we are at a loss to understand what would constitute mental anguish.

We realize that we are pioneering in our conclusion, but we so hold.

The twentieth proposition contends that the trial court erred in refusing to permit Gieb (the engineer in charge of the elevator) to testify whether or not a speed of 600 feet per minute is fast, moderate or slow, because the witness is an expert and qualified to testify and give his conclusion, or opinion, pertinent to the issue of careful operation of the elevator.

We see no error for the following reasons: (1) the issue of excessive speed as an act of negligence was not submitted; (2) Gieb was a witness for defendant and there is no bill of exceptions showing what his answer would have been; (3) the witness did testify before he left the stand that such speed was not fast for an elevator in the kind of building in which it was installed.

Proposition twenty-one contends that the trial court erred in overruling appellant’s objection to issue No. 8 because it is multifarious and duplicitous.

The issue is: “Do you find from a preponderance of the evidence that the operator of defendant’s elevator failed to give plaintiff sufficient time to get his balance and footing in said • elevator cage before starting the same?”

We believe that this issue, when properly analyzed, submits only one ultimate issue and that it comes within the rule laid down in 41 Tex.Juri., page 1107, and in Speer’s Law of Special Issues, page 242.

The twenty-second and twenty-third propositions contend that it was error to permit the witnesses Reagan and Mrs. Wood to be interrogated with respect to complaints made to them by the plaintiff of his pain and suffering and physical condition, all this being hearsay.

We do not believe that the authorities cited in support of the propositions are controlling here. An examination of them so convinces us. Take the case of Tyler S. E. Ry. Co. v. Wheeler, Tex.Civ.App., 41 S.W. 517. This cause went to the Supreme Court when it was reversed by the Court of Civil Appeals on the very question here presented. An examination of the opinion of the Supreme Court, found in 91 Tex. 356, 43 S.W. 876, discloses that our Court of Last Resort did not affirm the judgment of the Court of Civil Appeals but affirmed the judgment of the trial court, thus repudiating the holdings of such court.

We do not discuss the other cases cited, in the interest of brevity, but we conclude that the rule laid down in 17 Tex.Juri., pages 645 et seq., para. 271, and pages 648 et seq., para. 272, control.

The twenty-fourth and last proposition contends that the verdict awarding plaintiff $7,500-is excessive.

The evidence touching upon plaintiff’s suffering and condition is conflicting. The trial court saw and heard all witnesses speak, as did the jurors. It was the duty of the trial court to require a remitter if he believed the verdict excessive. He did not see fit to do so and under the authority of Vol. 13, Tex.Juri., page 265, Sec. 150, we believe that we are not warranted in disturbing the verdict.

The assignments of error presented are overruled and the judgment is affirmed.


author: O’QUINN, Justice.

text:
    WILLIS et al. v. STATE.
    No. 3660.
    Court of Civil Appeals of Texas. Beaumont.
    June 19, 1940.
    Llewellyn & Dougharty, of Liberty, and Morris & Bennett, of Beaumont, for appellants.
    Thos. J. Hightower, H. A. Maynard, and Thos. A. Wheat, all of Liberty, for ap-pellee.
   O’QUINN, Justice.

This was an action in the district court of Liberty County by appellee, The State of Texas, against appellants, Mr. and Mrs. B. H. Willis, as owners, and certain other parties as lienholders, to foreclose a tax lien on about 17,000 acres of land in Liberty county for the years 1935 and 1936. By their answer, appellants raised the following defensive issues: (1) In raising the values placed upon the land by them in their rendition, the Board of Equalization of Liberty county “employed and followed an arbitrary rule or scheme in arriving at such increased values” ; (2) The tax assessor of Liberty county received and accepted the renditions made by appellants, and the values placed by them upon the property, without noting on the rendition sheets a different value — because of that fact the Board of Equalization was without jurisdiction “to raise the values placed upon the property” by appellants; (3) The Board of Equalization, in its hearing on values, had no evidence before it except the testimony of appellant, B. H. Willis, in support of the rendition made by him, and, the action of the Board in raising the value was without support in the evidence; (4) The Board discriminated against appellants in raising their -valuation, which denied them the equal protection of the law and amounted to a taking of their property without due process of law, in violation of the Constitution of the United States; (S) Appellants made tender of the amount of the taxes due upon the rendition made by them.

On trial to the court without a jury, judgment was for appellee in the sum of $13,904.43, total amount sued for, from which appellants duly prosecuted their appeal to this court.

As their assignments of error, appellants have brought forward the propositions as numbered above, constituting their special defenses. They also assign that the delinquent tax record, as introduced in evidence, was insufficient to support the judgment, and there was “no proof that any tax was levied by the Commissioners’ Court of Liberty county for the years in issue in this suit.”

We pretermit a discussion of all assignments except that in raising appellants’ values, as evidenced by their rendition sheets, the Board of Equalization employed and followed “an arbitrary rule or scheme.” It was the contention of appellants that the Board of Equalization of Liberty county had an arbitrary rule t>r scheme “to the effect that acreage property was assessed at a maximum of Ten Dollars ($10.00) and a minimum of Five Dollars ($5.00) per acre without reference to whether or not it was improved land, without reference to its location, but agricultural land, grazing land, and commercial timber lands were assessed at Ten. Dollars ($10.00) an acre, marsh lands, cut-over timber lands, and sandy lands at Five Dollars ($5.00) per acre.” The evidence on that issue was as follows:

On the trial, the county judge of Liberty county, who was of counsel for appellee, made the following statement in open court as an incident of the trial, “We agree in so far as Ten Dollars ($10.00) being the maximum, Your Honor.”

W. W. Jett, tax collector of Liberty county, after identifying the renditions made by appellants for 1935 and 1936, testified that the Board of Equalization raised “practically all” of appellants’ renditions for the years 1935 and 1936; that he did not make any recommendation to the Board, and did not place any different value on the property; that the Board, in equalizing the value of the property for 1935 and 1936, followed an old set rule which had been in use for many years — that the maximum value placed on acreage was $10 per acre. We give his. testimony on this point (Q. & A. reduced to narrative) : “I know from my own knowledge and from my appearance before the Board of Equalization that they have an old set rule as to a maximum valuation for real estate in Liberty county, which was in effect in the years 1935 and 1936. Under this rule the agricultural part was not considered as much as prairie and timber — ■ prairie and timber land. The maximum valuation placed on timber land' was, as á rule, $10.00 p'er acre, regardless, and the minimum valuation- was $5.00 per acre. The Board tried to follow that rule regardless of whether it was $5.00 land; it made no difference. The Court’s idea was that anything that was prairie land was worth $10.00 per acre whether it was in the north, south, or east part of the county. The Board put a $10.00 valuation on the land if it was virgin timber, I mean that no property at all in the county was taken at a value — farm lands, lands outside of town — none was taken at a value of more than $10.00; if it was it was mighty little. All the land, irrespective of whether it was used for cultivation or grazing purposes, all was supposed to be taken at the uniform value of $10.00, but it was not always; where they knew it was prairie land; they took it for $10.00 — sometimes they would think it was in timber when it wasn’t.. I am not acquainted with Mr. Willis’ land and the land in that vicinity; I tried 'to go over that lower prairie, but that boggy pasture — impossible to go over that. I went behind them in sea marshes and bogged down.”

Mr. C. P. Jackson, one of the Commissioners and a member of the Board of Equalization for the years 1935 and 1936 testified (Q. & A. reduced to narrative) : “During the years 1935 and 1936, the Board of Equalization continued a previously adopted rule as to a maximum value to be placed on real estate in Liberty county outside of towns and cities; the maximum value was $10.00 per acre, the minimum value $5.00 per acre. After we arrived at a valuation, we took 60% of that valuation for the application of the. tax rate. The $10.00 maximum valuation applied to prairie lands, farm lands, and commercial timber land. The $10.00 maximum applied to all lands within the county coming within that classification- regardless of location, and regardless of improvements. The $10.00 maximum valuation applied uniformally to lands coming within the classifications I have named regardless of whether the land was on or near a highway — all farm lands, prairie lands, and commercial timber lands. The $5.00 minimum applied to cut-over timber land and soft marshy land not fit for cultivation at present. Just because the land might be prairie land did not take it out of the $10.00 maximum classification, unless it was swampy land. I do not recall that we had a variation there between $5.00 and $10.00. In other words, if the land was any kind of prairie land we put on it a $10.00 valuation, and on swampy land the minimum value of $5.00, for it wasn’t fit for cultivation. We 'had a fundamental rule in adjusting valuations; for instance if one-fourth of a tract was timber land and the rest was prairie land, I, think we would' put about $6.00 on it— that is my idea of equalization. I state that everybody was treated that way. The Board had no reason to want to discriminate against Mr. Willis; we treated him like we treated everybody else. At the time we fixed the value on Mr. Willis’ land, in estimating the value of his swampy land, timber land, prairie land, and good commercial land' — we used that old rule; we exercised the best of our judgment in arriving at the value. As I understand his land, it was about fifty-fifty; it would be about $7.50 per acre. In fixing the value on the land, if some of it was worth $15.00 an acre and some of it was worth $3.00 per acre — as far as we were concerned, there wasn’t any $15.00 value. Under our rule, if all land was prairie it was assessed at $10.00; if it was cut-over land it was assessed at $5.00. We didn’t adopt the rule of placing $5.00 and $10.00 an acre on the land; we just continued a rule that had been adopted previous to our election. Mr. Willis came before us and told us about his land; about his rice farming land and about the roads.”

We take from appellants’ brief the following summary of the testimony of Mr. Lewis Tanner, deputy tax collector of Liberty county: “He identified the record of assessments of property in Liberty County owned and rendered for taxation by the owners or agents for the year 1935, identified the Winnie Wickliffe tract in .the James Martin 140 acres, which was assessed by the Board of Equalization at Fourteen Hundred Dollars ($1400) ; valuation for the year 1935. That the Vera M. Slay 112 acres was assessed at Eleven Hundred Twenty Dollars ($1120.00) for the year 1935; that the Andrew Bell two hundred acres in the Coronado survey was assessed at Two Thousand Dollars ($2000) for the year 1935; that the Harrison and Mecom tracts of 167 acres in the B. C. Franklin Survey were assessed at Sixteen Hundred Seventy Dollars ($1670); that that property is located just this side of the Fair- Grounds just off of Highway 90; that Mrs. Slay’s land is a mile from Liberty on Highway No.. 146. And with reference to the same records for 1936, the Wickliffe 148 acres in the James Martin were assessed at Fourteen Hundred Dollars (1400); Mrs. Vera Slay’s 111 acres at Eleven Hundred Twenty Dollars ($1120); Andrew Bell 200 acres at Two Thousand Dollars ($2000); Harrison and Mecom 167 acres in the B. C. Franklin at Sixteen Hundred Seventy Dollars ($1670) ; A. C. Neyland 32 acres in the B. C. Franklin at Six Hundred Dollars ($600). That those were the final valuations upon which the property was accepted by the Board of Equalization, for taxation. That there are about sixteen thousand tracts of land in Liberty County. Lewis Tanner, being recalled as a witness for the State, identified an original map of a part of Liberty County and testified that he had gone through and identified some of the land on the valuation book; that the Meacham 320 acres were rendered at Sixteen Hundred Dollars ($1600) Five Dollars ($5.00) an acre; that this land was in the V. Barrow. The Davis tract of land of 805 acres was entered at Eight Thousand Fifty ($8050), Ten Dollars ($10.00) an acre, which is around or near some of Mr. Willis’ land; that the J. S. Cullinan in T & N O 15, of 639.46 acres was rendered at Six Thousand Three Hundred Ninety Dollars ($6390), Ten Dollars ($10.00) an acre. That it is in close proximity to Mr. Willis’ land. That some joins it above and some of it to the west. The Charley Welch 640 acres in T & N O 11 was rendered at Sixty-four Hundred Dollars ($6400); which is Ten Dollars ($10.00) an acre. That it is near some of Mr. Willis’ land, joins some of it. That the J. S. Cullinan 310 acres in T & N O 313 was assessed at Thirty-one Hundred Dollars ($3100) or Ten Dollars ($10.00) an acre, which is right near Mr. Willis’ land. The W. S. Swilley Railway Survey Ño. 17, 320 acres was assessed at Thirty-two Hundred Dollars ($3200), or Ten Dollars ($10.00) an acre, which is in close proximity to some of B. H. Willis’ land, right amongst it. That E. W. Boyt has one tract of land, 320 acres, 28 on Thos. Moore 320 acres at Thirty-two Hundred Dollars ($3200); O. P. Hassell 320 acres at Thirty-two Hundred Dollars ($3200), which would be Ten Dollars ($10.00) per acre, which is in close proximity to Mr. Willis’ land, 640 joins his on the east and 34 on the T. L. Carroll, E. W. Boyt 320 acres is assessed at Thirty-Two Flundred Dollars ($3200), which is Ten Dollars ($10.00) an acre, in close proximity to some of Mr. Willis’ land. In Sec. 36, E. W. Boyt has 640 acres assessed at Sixty-four Hundred Dollars ($6400), or Ten Dollars ($10.00) an acre in close, proximity to Mr. Willis’ land. That B. H. Willis’ land in T & N O Sec. 29, 640 acres rendered by B. H. Willis for Forty-seven Hundred Dollars ($4700), which is Seven Dollars Fifty Cents ($7.50) an acre. That Mr. Willis’ land, however, was taxed at Ten Dollars ($10.00) an acre. That the land belonging to Mr. Haskell joins his and is put in at Ten Dollars ($10.00) an acre. That all of this land in the same vicinity of Mr. Willis’ land is placed on the rolls and. taxed at Ten Dollars ($10.00) an acre.”

We take from appellants’ brief the following summary of the testimony of J. M. Rich: “Mr. J. M. Rich, a witness for the defendants, testified that he had lived in Liberty County about all his life; that his business was real estate, farming and stock raising; that he had been in the real estate business for the last twenty or twenty-five years; that practically all of his activities had been in Liberty County, and that he had become familiar with the values of real estate in Liberty County during the last twenty years; that he had been to Hardin, Romayor, Cleveland, Dayton, Esperson Dome, and different places over the county; that he was familiar with the location of the tract of land owned by S. S. Wickliffe on Highway No. 3, east of Liberty in the James Martin Survey, commonly known as the golf course, and that he would certainly say it was worth Fifty Dollars ($50.00) an acre. That he was familiar with the class of land in the Coronado Survey, the Andrew Bill farm on Highway No. 146 containing over two hundred acres, and that the cultivated area of that particular tract was worth conservatively, Twenty-five Dollars ($25.00) an acre, maybe higher than that. That he was familiar with the tract of land known as the Mecom Subdivision located on the Wallisville Road in the Franklin Survey; that he would consider it almost city property, and that in 1935 and 1936 it was worth One Hundred Dollars ($100.00) an acre, some of it, not all of it. That he was also familiar with the Allen Neyland property where George’s Cafe is located, also in the B. C. Franklin Survey, and that he would say that it was about the same price, basing it entirely on its proximity to the city and highway. That he was acquainted with .the tract of land at the foot of the hill adjoining the town of Dayton on the eastern part of the South Liberty Town League, at one time known as the Fred Barton League, and that its value would be from Fifty Dollars ($50.00) to One Hundred Dollars ($100.00) an acre for the same reason, close to town. That in arriving at valuations, he takes into consideration the proximity of the property to settlements, churches, schools, and things like that, and that there is a great deal of property in Liberty County along Highway No. 3 and along Highway No. 146 and along the highway leading from Raywood to Hull, and other improved highways in the County, that have similar values; that for example the Allen Neyland property, which he has identified in the B. C. Franklin Survey, is more valuable than the tract of land located 'in approximately the southeast corner of Liberty County; that the Ney-land property in 1935 and 1936 was worth three or four times as much as land located down there in Mr. Willis’ tract of land; that he knows where Mr. Willis’ lands are and that he is familiar with them, and, while it will raise just as much rice, it is less valuable than similar lands located on Highway No. 61 between Dev-ers and Anahuac. That in fixing valuations he takes into consideration the character of improvements on the property, and, all other things being equal, stuff close to Devers and Raywood, would be worth more than stuff in the southeast corner; that all rice lands in Liberty County are not of uniform market value; that the availability of water would have a lot to do with the worth; that lands with the minerals reserved of a one-thirty-second to a one-sixteenth reserved would not be worth as much as lands of no reservations, but he did not know how to fix the value. That he knows the general character of the lands in the southeastern part of Liberty County, some of it is prairie and some of it is timber lands and' scrubby timber, and that taking that land as a whole, he would say a fair market value of the lands in 1935 and 1936 in that vicinity would be Five Dollars ($5.00) or Ten Dollars ($10.-00) or Fifteen Dollars ($15.00). That he is familiar with the location of Highway No. 3 as it passes through Liberty County; that there are about 35 miles of the highway; that he is familiar with State Pligh-way No. 146 as it passes through Liberty, about forty miles of it. That he is acquainted with the road commonly known as the Dayton-Cleveland Road; that it is a paved highway of concrete; that Highway No. 3 is a paved highway; that there are about twenty-six or twenty-eight miles of the Dayton-Cleveland Road; that he is familiar with the road from Raywood going in a northeasterly direction by way of Hull to Batson; that there is a paved road past Hull and then just half of it is paved; that there are about fifteen miles of it in Liberty County. That he is familiar with the location of State Highway No. 61 from Devers south toward Anahuac; that it is a macadamized road, and that there are about ten miles of the road in Liberty County. That for two or three miles out of Liberty on that road the market value back from the highway half a mile would be Twenty-five Dollars ($25.-00), some of it is not so much, depends entirely on the kind of tract it is. That there is a great difference in the nature of the soil on that road. That along those roads and especially near those towns and cities mentioned, Dayton and Cleveland, Liberty and Raywood, Hull, Daisetta, and Devers, during the year 1935 and 1936 land was considerably more valuable than lands located as Mr. Willis’ is, or a good portion of it is, in the southeast portion of the county. On cross examination, he testified that Liberty County has as big a variety of soil as any county he knows anything about. Some of it is absolutely no good for anything and some of it is as good as anything in Texas. That he is acquainted with the seventeen thousand-acre tract of Mr. Willis’ land; that he has some land within three or four miles of it, part of it being rice land. That he renders it for taxes; that it has been rendered for Ten Dollars ($10.00) an acre most of the time; that he has argued with them about some of it but has not got very far; that he pays taxes on that basis, that is, Ten Dollars ($10.00) an acre. Part of his land is within two miles of Mr. Willis’ land. Some of his land is not as good, some better, and some about the same as Willis’, but taking it as a whole, it would be approximately the same. That he has a place down out of Raywood in that part of the country; that he knows other farmers down there and has dealings with land owners down there, and that, as to whether it has the same value as his land, rice land is a peculiar thing, the older it is and the more improved it is, the sorrier it is for rice; you wear it out for rice, it gets foul and full of weeds' and that is the reason, he says, some of it close to the highway is not as valuable as some off the highway. That he renders his land down south of Raywood for Ten Dollars ($10.00) an acre, most of it, except the Devers part, and he thinks they stuck him Five or Six Dollars an acre on that. That he pays taxes on that basis. That the value he placed on the Neyland land and the reason for the high value he placed on it was its close proximity and use for city purposes. On redirect examination, he stated that he knows the buildings and improvements on the Neyland tract which is a thirty-two-acre tract; that they have a filling station on the corner, a restaurant and night club, parking lots, tourist camps, and that he believes Price has a residence on the lower end and some other buildings. That it is a comparatively recent dwelling house of brick veneer, looks like a five or six room house. That he has never been in George’s place, but he has seen a good many tourist campers and it is a pretty nice building, having tourist camps in connection. That he is familiar with the tract belonging to Mrs. Slay on Highway No. 46; that the market value of that property is along about the lines he has talked, Fifty Dollars ($50.00) an acre property. On recross examination, he testified that he does not know whether or not they render the Neyland tract as a whole tract or cut up in little tracts, and the same is true with reference to George’s place; that he has never checked that. That you frequently have to let rice land lay out, some of it for five years, for the purpose of improving the soil. The longer you let it lay out the better it is. That when not using it for rice farming you can graze it, the usual practice is for rice farmers to have a bunch of cattle. That there is a State Highway running through Mr. Willis’ land which he estimates is two or three miles anyway, or about five and one-half miles, which would touch five or six sections of land depending on the way he cuts it and where it touches it. That down there on the Wallisville Road where he testified land half a mile on each side was worth Twenty-five Dollars ($25.00) an acre, that it might not be that far, some of it would reach into the bottoms, and where it reached into the bottoms it would not have that much value, that to be specific about it, he had been offered One Hundred Dollars ($100) an acre on the highway last year and this year, since the paving was put in and that back in 1935 and 1936 before they built the highway down there there would not be much difference because they already had a highway; it was not like going through new country. On redirect examination, he testified that that portion of Mr. Willis’ land through which Highway No. 3 runs is not anything like as valuable as that of Ney-land’s land; that the market value of some tracts of land would be vastly different; that the same is true of Mr. Willis’ land and Mrs. Slay’s land; that you would have to base the value of the location of the property; that he would not give you fifteen cents for some of the land. On recross examination, he testified that land down the Wallisville Road for a half mile back on each side would be worth something like Twenty-five Dollars ($25.00) an acre, but the same is not true with regard to all the main highways in the county, some of them -are farther back. That it is not true with regard to Highway No. 3 through Mr. Willis’ land. It is much farther away from town. As to the value of that land that depends on the size of the tracts. You can buy a little tract of land close to town and put up a filling station, a night club, or something else, but you would not have much luck with either one on Mr. Willis’ land because it is too far away from town. That Mr. Bell’s land is about the best farm land in the whole of Liberty County and that the value of land on either side of that highway would be Fifty Dollars ($50.00) an acre, Mr. Bell’s land. Talking about Mr. Willis’ land along the highway half a mile back, beginning when you strike Mr. Willis’ land toward Beaumont until you get to the other side of it, that land along there is marsh, about the sorriest part of Mr. Willis’ land as far as farm land is concerned, unless it is drained. He has got other rice land of better value. About the value of that land in big tracts, Five or Ten or Fifteen Dollars, nor. over Twenty-five Dollars an acre would be the market' value; that he would not have twenty acres of it, he would not know what to do with it. You could not sell that in twenty-acre tracts because it is not the same nature of soil on the highway. If you cut it up in twenty-acre tracts it would be much less valuable than in a section. The witness Rich was the only witness besides B. H. Willis, who qualified as knowing the values of those lands.”

We take from appellants’ brief the following summary of the testimony of appellant, B. W. Willis: “Defendant B. H. Willis testified that he was acquainted with the values of the property he rendered for taxation for the years 1935 and 1936; that he had bought property in that vicinity; that the values he placed upon his property in his renditions represented the reasonable market value; that he had various types of land; about four-fifths to five-sixths of it being prairie and one-sixth scrubby timber and some of it fairly good timber, but all cut-over in the last twenty years; that five-sixths prairies land is possible agricultural land, some of it without drainage, some of it, back down next to Double Gum, low, wet, and boggy, hardly get in and out at all. That for two or three months in the winter can’t get in and out with the school bus at all, it being property where a road used to go through called Willis’ Lane and Devers’ Woods, where they had such bad places in the highway; that it isn’t all the same class of property but is all pretty close together, being in about the same neighborhood; that during the years 1935 and 1936 it was mostly impossible to get in and off the lands from the concrete highway; that the roads back_ through the property could be travelled in good weather but not in bad weather;- that about sixty to seventy percent of the time you could go most anywhere but about 25% of the time you could go only where you have hard surface roads, and that .25% of the time the lands are not accessible by trav-elled highways, and that such condition made the lands much less valuable. That most of his land lies south of the concrete highway and that the entire lands for the years 1935 and 1936 were in that condition. That the country is sparsely settled. That he has some improvements on his property and that the children living in that vicinity and on his property could not get to school during wet weather; that there were no schools in 1935 and 1936, located on his land; that nearly all of the land has minerals reserved or royalties reserved, and that such condition makes it less valuable. That he received notice of the action of the Commissioners’ Court, raising his values, and appeared before the Commissioners’ Court at the time stated, at the hearing on the valuations, and offered to produce proof to the Board of Equalization as to the value of his property and why it should be less valuable; that the Board of Equalization did not seem to be open to proof, just seemed to be $5.00 and $10.00. That is all the answer he got. That the Court informed him they were not taking anything under $5.00 and nothing over $10.00; that everything went in at either $5.00 or $10.00 per acre. That his farming lands would be as valuable as other farming lands in the County if it had roads through it and was well drained. That he has no good roads and very little drainage, but that they have it assessed at $10.00 an acre, being the maximum. That they put a value of $10.00 per acre on the lands close to the highway and also the lands back from the highway. He further testified on cross examination that in 1935 he had about one thousand of the seventeen thousand acres in cultivation on a rental basis of Three Dollars ($3.00) per acre; that he got a little on pasture; that he had some twelve thousand acres that could have been farmed, but the Federal regulations would not permit him to farm any more than one thousand acres; that he used some of it himself for pasturage and leased out small tracts at Twenty-five Cents (25‡) an acre. That the lands in his vicinity were about the same as the Esperson tract, south of Dayton, as to getting in and out. That he had been discriminated against by Liberty County in the expenditure of bond money for roads, and also his lands were valued too high in proportion to other lands in ' the County. That Mr. Rich and Mr. Boyt owned lands around him, and that he does not see much difference in values except that their lands lie between his and one of the improved highways, and that that would make their lands more valuable. That the one-sixth of his land which !⅞ timber land, amounting to approximately three thousand acres, is north of the highway; that the timber was cut off about 1917 and that he would figure the timber worth probably Four Dollars or Five Dollars an acre. That he has picked up old buildings and rebuilt them on the farms to hold hay, shelter cattle, and things like that; that he built some tenant houses several years ago, seven or eight of them, every .one in bad shape, most of them idle and empty only three of them being used; that the only other improvements he has' is open constructed sheds for cattle, not of much value; that in 1935 and 1936 he was paid about Two Thousand Dollars ($2,000.00) on his entire property for benefit payments by the Government. That the Commissioners’ Court, while meeting in official body, informed him that the values of land were fixed at Five Dollars ($5.00) and Ten Dollars ($10.00) an acre basis; that he offered to show them why his valuation should not be raised, many times. That he told them all that he has gold on the witness stand. That they heard what he said but did not give him any relief. On re-direct examination, he testified that when he contested the raise in valuations, the Board of Equalization just told him that they had decided or ruled that all lands would be valued at Five Dollars ($5.00) or Ten Dollars ($10.00) per acre, that his would be the same way. That rice lands near highways are more valuable than rice lands located away from highways; that the entire bunch of tenant houses on his land are practically worthless at this time and were not a whole lot better than in 1935 and 1936; that they were less valuable than other houses where people live in Liberty County; that they were not in livable condition. He further testified that the timber land he spoke of being where the timber was worth Five Dollars ($5.00) an acre, that the timber was the only thing of value on the land; that if the timber was taken off the land would just help to hold the world together. That he had .purchased the land in the Robert Burrell Survey adjacent to his other holdings during the last eighteen months for Six Dollars ($6.00) an acre. That the price he paid was the reasonable market value, and that he was the only one who was willing to pay that for it, and that it was not worth any more than Six Dollars ($6.00) per acre in 1935 and 1936.”

Mr. D. M. Kelly, one of the County Commissioners, testified (Q. & A. reduced to narrative):

“I know of no land in Liberty county that we valued for less than $5.00. It is pretty hard to say definitely whether we placed more than $10.00 on any farm land; probably might be some, taking into consideration the improvements, we put more on than $10.00. It was not the general policy of the Board to place a value of $10.00, or a value of $5.00 on all land. Where part of the land was worth $10.00 and a part was worth $5.00, we arrived at some intermediary value, some value between $10.00 and $5.00, in order to equalize the value of the whole tract. We have lots of land in Liberty county we valued I would say ranging from $5.50 to $8.00 on up to $10.00. In fixing the values we tried to place a reasonable value on all properties alike. We did not deliberately or maliciously discriminate against Mr..Willis’ land; we tried to treat him as we treated the other tax payers, and the final value placed on his property was arrived at in the exercise of our honest judgment. Well, most of the property — we accepted acreage where a man had his home if he had 60 acres or 100 acres the land was his farm, we taken that land generally at $10.00 an acre. As far as I remember, I do not believe we have raised any of the values along the highways any more than other places I know of, except in close to the city properties and lots, etc. We didn’t have an absolute rule that prairie land and farm lands went on the rolls at $10.00 an acre or that cut-over lands went on the rolls at $5.00 an acre.
“Q. You said there was an absolute rule that farm lands and prairie lands went on the rolls at Ten ($10.00) Dollars an acre. I am asking that question, now, with reference to tracts of land entirely farm land or entirely prairie land. In other words, if a man owned a tract of land a hundred (100) acres, all in cultivation, what was the rule of the Court with reference to valuation? A. We generally put that on at Ten ($10.00) Dollars.
“Q. You say you generally did it. Didn’t you always? A. I might say ‘yes’, and I might make a mistake. I don’t know all the tracts of land. Some man might bring in a hundred (100), and we might render it Seven ($7) Dollars or Five ($5) Dollars, not knowing it was all in cultivation.
“Q. How long were you on the Court? Four (4) years? A. Six (6) years.”

From the testimony in the record, we think it conclusively appears that the Board of Equalization of Liberty county, in assessing values on acreage land, operated under an old rule of a $10 maximum and a $5 minimum, and that regardless of improvements and of the location of the property. It appears that Liberty county has many miles of concrete roads, and that the acreage on these roads, even as far back as two miles, has a much greater value than land off the roads. But it appears that such land is assessed on the same basis of value as lands remote from the roads. It also appears that land near the towns and cities in Liberty county, having a high value of $100 per acre, was assessed under the general rule. Under the general rule, land not worth fifteen cents an acre was assessed at a minimum of $5 and land worth more than $100 was assessed at the maximum of $10. Article 8, § 1, of the Constitution, Vernon’s Ann. St., provides that “taxation shall be equal and uniform.” Our courts have uniformally condemned assessments made under a general rule or scheme whereby property, regardless of its location, or situation, or market value, is assessed at the same general valuation. In Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756, 757, 760, Judge Leddy said:

“If, as is held, the reasonable cash market value is the true criterion, then it follows that if a board of equalization adopts a plan or scheme which is fundamentally wrong by which values are arbitrarily determined, then the plain provision of the Constitution has been violated. * * * The courts have frequently, and we think properly, condemned the action of boards of equalization in taking any one particular element as a rigid standard by which values of real estate shall be determined. The true value of real estate cannot be arrived at unless equalization boards give consideration to all proper elements that are determinative of the market value thereof. The decision in the case of People ex rel. Fitchburg Ry. Co. v. Haren, 50 Hun 605, 3 N.Y.S. 86, clearly states the true rule that should guide such boards in valuing real estate for purposes of taxation, wherein it is said:
“ ‘Many considerations must have a share in determining this value. Among them are 'actual sales of the property, or of similar property, and the earning capacity of the property itself. No one consideration is conclusive. All may be properly taken into account. Sometimes houses of large cost will rent for only a small interest on the cost and on their value in the market. Other kinds of real estate may bring a large income upon their cost and on their value in the market. So that to take the earning capacity as the sole measure would be incorrect, while yet it may properly have its influence.’ ”

See, also, Constitution of Texas, Art. 8, Sec. 18; R.S.1925, Art. 7206; Ogburn v. Ward County Irrigation Dist., Tex.Com.App., 280 S.W. 169; Rowland v. City of Tyler, Tex.Com.App., 5 S.W.2d 756; State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076; Lively v. M. K. & T. Ry. Co., 102 Tex. 545, 120 S.W. 852; Nederland Independent School Dist. v. Carter, Tex. Civ.App., 93 S.W.2d 487; Poteet v. W. T. Waggoner Estate, Tex.Civ.App., 96 S.W.2d 405; Howth v. French Ind. School Dist., Tex.Civ.App., 115 S.W.2d 1036 (See also Opinion by Commission of Appeals this case, 134 S.W.2d 1036, not yet [Reported in State Reports]); Power v. Andrews, Tex.Civ.App., 253 S.W. 870; Garza Land & Cattle Co. v. Redwine Ind. School Dist., Tex.Civ.App., 282 S.W. 905; Brown et al. v. First National Bank of Corsicana et al., Tex.Civ.App., 175 S.W. 1122; Slaughter v. Sundown Ind. School Dist., Tex.Civ.App., 41 S.W.2d 478; Santa Rosa, Inc. v. Lyford Ind. School Dist., Tex.Civ.App., 78 S.W.2d 1061. On the authorities cited, it necessarily follows that the judgment of the Board of Equalization, raising the rendition values as fixed by appellants, on their property for the years 1935 and 1936, is void and must be set aside.

On our judgment declaring unlawful the action of the Board of Equalization in raising the assessment on appellants’ property, the law declares that the original assessment of the property made by appellants determines the amount of taxes due by them. On this proposition, speaking for the Supreme Court in State v. Richardson, 126 Tex. 11, 84 S.W.2d 1076, 1078, Judge German said: “It is well settled that if a rendition of property be made by the owner, and if the board of equalization by adopting some arbitrary standard, or by failing to hear evidence, or in some other respect fails to follow the provisions of the statute (see articles 7211 and 7212 of the Revised Statutes of 1925), fixes a value that is illegal and is afterwards set aside, the taxpayer’s original rendition prevails as a basis upon which taxes are to be paid. Brundrett v. Lucas (Tex.Civ.App.) 194 S.W. 613; Rowland v. City of Tyler (Tex.Com.App.) 5 S.W.(2d) 756; Ramey v. City of Tyler (Tex.Civ.App.) 45 S.W.(2d) 359. In such case, if the taxpayer has made timely tender upon the basis of his rendition, he cannot be required to pay interest and penalties. Ramey v. City of Tyler, supra.”

On the issue of “tender” by appellants, we quote as follows from their answer:

“The defendant, B. H. Willis, has repeatedly offered to pay his taxes based upon his re'nditions, but the plaintiff has always refused to accept same, though defendant has tendered payment thereof before they became delinquent, and the defendant here and now tenders into court the payment of the taxes due upon his said property in accordance with the renditions heretofore made by him and hereby referred to.

“Wherefore, defendants pray that the valuations placed upon defendants’ property, as alleged in plaintiff’s petition, be canceled, annulled, and held for naught; that the renditions as made by the defendant, B. H. Willis, be taken as a basis for calculating the taxes due thereon, which the defendant, B. H. Willis, here now offers to pay and tenders into Court, and defendants further pray for general and special relief, to which they may be entitled, for costs of suit, etc.”

Appellants have not brought forward in their brief any testimony to the effect that they made timely tender for the taxes due on their rendition. So, though appellants are due only the taxes on the rendition made by them, it must be held that they were delinquent in paying such taxes and judgment should be against them for the amount of the taxes, as per their rendition sheets, and on these taxes they should be charged interest and penalty. The clerk is directed to make the proper calculation as to the amount of taxes, interest, and penalty so adjudged against appellants, and to enter .judgment accordingly.

The judgment of the lower court will be reformed, and as reformed here rendered against appellants in favor of appellee for the amount of taxes due on the basis above stated.

Reformed and affirmed.