text:
    HARRIS COUNTY FLOOD CONTROL DIST. v. MANN, Atty. Gen.
    No. 7714.
    Supreme Court of Texas.
    June 12, 1940.

      Ernest A. Knipp, R. R. Lewis, Geo. D. Neal (of Lewis & Neal), Dan W. Jackson, Gr. Dist. Atty., of Harris County, W. L. Cook, Asst. Cr. Dist. Atty., of Harris County, Sewall Myer, City Atty., and Spur-geon E. Bell, Asst. City Atty., all of Houston, for relator.
    Gerald C. Mann, Atty. Gen., and R. W. Fairchild, and Clarence E. Crowe, Jr., Asst. Attys. Gen., for respondent.
   CRITZ, Justice.

This is a mandamus proceeding instituted directly in the Supreme Court by Harris County Flood Control District against Honorable Gerald C. Mann, Attorney General of Texas, to compel him to approve two issues of bonds proposed to be issued by the District. One issue is for $500,000, the other for $3,000,000. The validity of the issue for $500,000 depends, in the main, on the constitutionality of the Act of the Legislature of this State creating the District, being H. B. 1131, Chapter 360, page 714, Acts Regular Session 45th Legislature, 1937, Vernpn’s Ann. Civ. St. title 128, c. 8 note. The validity of the issue for $3,000,-000 depends on the constitutionality of an Act of the Legislature of this State, being S. B. No. 6, Acts Regular Session 46th Legislature, 1939, as well as the validity of the Act of 1937 just mentioned. The Act of 1939 is Chapter 8, Special Laws 46th Legislature, 1939, page 976. We shall hereafter refer to the two Acts as the Act of 1937 and the Act of 1939, respectively.

The Act of 1937 creates this District as a conservation and reclamation district, with its boundaries and area identical with the boundaries and area of Harris County, Texas. It is provided that the District shall be a governmental agency and body politic and corporate, with the powers of government, and with the authority to exercise the rights, privileges, and functions specified in the Act. The Act declares that the creation and establishment of the District is “essential to the accomplishment of the purposes of Section 59 of Article XVI of the Constitution of the State of Texas, as amended, including the control, storing, preservation, and distribution of the storm and flood waters, and the waters of the rivers and streams in Harris County and their tributaries, for domestic, municipal, flood control, irrigation, and other useful purposes, the reclamation and drainage of the overflow land of Harris County, the conservation of forests, and to aid in the protection of navigation on the navigable waters by regulating the flood and storm waters that flow into said navigable streams.” Section 1.

The Act of 1937 creating this District makes the Commissioners’ Court of Harris County the governing body of such District. In this regard, the Act makes such Commissioners’ Gourt the governing agency of such District, with power conferred and duties imposed to conduct all of its governmental, political, and corporate powers. The 1937 Act creating the District authorizes it to issue bonds, to be paid out of ad valorem taxes to be levied upon real and personal property situated therein. Such bonds must be authorized by vote of the qualified property tax-paying voters of the District. In this connection, it appears that the $500,000 bond issue here involved has been duly authorized by proper vote of the District, and there is no impediment to its approval, if the Act of 1937 creating the District is constitutional.

As already indicated, after this District was created by the 45th Legislature, 1937, the 46th Legislature, 1939, enacted Senate Bill No. 6, above mentioned. By the terms of such 1939 Act, for a period of ten years, commencing September 1, 1939, there is donated and granted by the State to Harris County Flood Control District, supra, one-half of the State ad valorem taxes collected in Harris County for general revenue purposes. It is provided that such taxes so donated shall be used by the District for the purpose of preventing the continuing public calamity caused by great floods and to construct improvements to control flood waters in Harris County for the protection of life, property, soil, forests, public highways, and the Houston Ship Channel lying within said county, and to carry out'the powers given in such Act and given in the Act of 1937 creating the District.

The 1939 Act states, in Section 2 thereof, that: “The County of Harris, Texas, acting by and through its Commissioners’ Court, shall have authority, and it is hereby authorized, to issue its negotiable bonds secured by a pledge of'the tax moneys donated and granted by the State of Texas, as hereinabove provided, and the proceeds of the sale of such bonds may be used for purchasing lands, easements, rights-of-way, structures, and for the construction of improvements, including dams, reservoirs, and all other works suitable for use in connection with the flood control program and projects in said County and the maintenance and operation thereof, and doing all things necessary to the execution of the purposes for which the grant and donation is made; provided, however, that the aggregate amount of bonds to he issued shall not exceed such sum that the donation and grant of one-half of the State ad valorem taxes for a period of ten (10) years will service so as to pay interest and to create a sinking fund sufficient to pay said bonds at maturity.”

The Act then provides that all bonds issued under its provisions shall be issued in the name of the District.

It will be seen from the above that, under the Act of 1939, the tax donation is to the District; not to the county. The Act of 1939 authorizes the County of Harris to issue its bonds, to be secured by the taxes donated — not to Harris County, hut to the District. The part of the Act of 1939 prescribing the form of the bonds to be issued states that they shall be issued in the name of 'the District; not Harris County. Looking at the entire Act, we construe it as authorizing the issuance of the bonds of the District; not Harris County. We think this is plainly the intent of the Act, taken as a whole, when it is considered that the funds provided to pay such bonds belong to the District, and the bonds are to be issued in the name of the District. Simply stated, the provision of Section 2 of the Act, which states that ■“the County of Harris * * * shall have authority * * * to issue its negotiable bonds secured by a pledge of the tax moneys donated and granted by the State of Texas, * * * ” means that Harris County Flood Control District may issue such bonds, acting, as provided by said Act, by and through the Commissioners’ Court of Harris County. The bonds and bond record show that these bonds are issued as the bonds of this District.

As authorizing the donation of the State tax moneys above mentioned, the 1939 Act contains, at its very beginning, the following provision: “Section 1. State Tax Donation: The Legislature finds and declares that the recent and recurring floods in Buffalo Bayou and other streams and tributaries in Harris County, with the consequent loss of many lives and of property to the extent of millions of dollars and the continued threat to commerce on, and the use of, the Harris County Houston Ship Channel and the Port of Houston, constitute a public calamity to the State of Texas and to the people and property within said County.”

We will make such further statements of the provisions of the two Acts here involved as may be necessary to decide the questions. of law here presented.

The issue of bonds for $3,000,000, here involved, is secured by the donated taxes provided by the 1939 Act.

From all the provisions of the 1937 Act, creating this District and defining its nature, purposes, and powers, we think it is too plain to admit of debate that such Act constitutes the District an arm of the -State government, — that is, a State governmental agency. We further think that it is too plain to admit of debate that such Act contemplates, or intends, that this District shall exist and function as a governmental agency and a body politic and corporate, separate, independent, and distinct within itself. It is true that its boundaries and area are identical with the boundaries and area of Harris County, but we do not regard that as any reason to hold that this District is a corporate- or political entity in anywise connected with, or dependent on, the corporate or political entity of Harris County. It was within the power of the Legislature to create this District as a conservation and reclamation district and define its area and boundaries, and the fact that the Legislature saw fit to define such area and boundaries the same as Harris County in no way indicates that the Legislature did not intend the District to be a separate and distinct corporate and political entity. Subdivision (b) of Section 59 of Article XVI, Texas Constitution, Vernon’s Ann.St. We here quote the constitutional provision just cited: “(b) There may be created within the State of Texas, or the State may be divided into, such number of conservation and reclamation districts as may be determined to be essential to the accomplishment of the purposes of this amendment to the constitution, which districts shall be governmental agencies and bodies politic and corporate with such powers of government and with the authority to exercise such rights, privileges and functions concerning the subject matter of this amendment as may be conferred by law.”

We shall now take up and decide the objections to these bonds contained in the answer of the Attorney General. In doing so we will follow the order of said objections as contained in such answer.

By his first proposition the Attorney General contends that that part of the Act of 1939 which grants, for a period of ten years, to this District one-half of the State ad valorem taxes collected for general revenue purposes in Harris County, is a violation of Section 51 of Article III, Section 6 of Article VIII, and Section 49 of Article III, of our State Constitution, Vernon’s Ann.St. •

Section 51 of Article III of our State Constitution prohibits the Legislature from granting any public money to any individual, association of individuals, municipal or other corporation whatsoever, with certain exceptions. One of these exceptions is that the above-mentioned prohibition shall not be construed so as “to prevent the grant of aid in cases of public calamity.”

Section 6 of Article VIII is as follows: “Sec. 6. No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law; nor shall any appropriation of money be made for a longer term than two years, except by the first Legislature to assemble under this Constitution, which may make the necessary appropriations to carry on the government until the assemblage of the sixteenth Legislature.”

Section 49 of Article III is as follows: “Sec. 49. No debt shall be created by or on behalf of the State, except to supply casual deficiencies of revenue, repel invasion, suppress insurrection, defend the State in war, or pay existing debt; and the debt created to supply deficiencies in the revenue, shall never exceed in the aggregate at any one time two hundred thousand dollars.”

If the donation of State taxes provided by the Act of 1939 is authorized by Section 51 of Article III of our State Constitution, then it is too plain to admit of debate that such donation cannot violate either Section 6 of Article VIII or Section 49 of Article III, supra. Brazos River Con. & Rec. Dist. v. McCraw, 126 Tex. 506, 91 S.W.2d 665; Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818. We therefore come to decide if this donation violates Section 51 of Article III of our Constitution.

As already shown, Section 51 of Article III of our State Constitution prohibits the Legislature from granting any public money to any municipal or other corporation whatsoever, with certain exceptions. One of these exceptions is that such constitutional prohibition shall not be construed so as “to prevent the grant of aid in cases of public calamity.” In the Brazos River, etc., case, supra, it was expressly held that a donation of general fund State taxes could be made for more than two years, — in fact, for 20 years, — to a district such as this, where the grant was authorized under Section 51 of Article III, supra, as “aid in cases of public calamity.” It follows that this grant cannot be condemned as unauthorized under Section 51 of Article III, supra, unless it can be said, as a matter of law, that the legislative finding of “public calamity” contained in this Act is without any substantial basis on which to rest.

The 1939 Act finds that “the recent and recurring floods on Buffalo Bayou and other streams and tributaries in Harris County, with the consequent loss of many lives and of property to the extent of millions of dollars and the continued threat to commerce on, and the use of, the Harris County Houston Ship Channel and the Port of Houston, constitute a public calamity to the State of Texas and to the people and property within said County.” Section 1.

In the Brazos River, etc., case, supra [126 Tex. 506, 91 S.W.2d 671] as shown by the opinion of the late Chief Justice Cureton, the public calamity found by the Legislature as authority for a grant of twenty years of State general, revenue taxes to the conservation and reclamation district there involved was “recurrent, devastating floods in the valley of Brazos River, which have, over a long period of years, caused a deplorable loss of life and property, and the erosion of the soil and a depletion of the fertility of the lands in said valley and the water-shed served by the Brazos River in Texas, and the public highways and structures and lands belonging to the State of Texas situated- within said water-shed; all of which is hereby declared to be a public calamity, * * Acts 1935, 1st Called Sess., c. 368, § 5, Vernon’s Ann. Civ. St. title 128, c. 8 note.

It will be noted that the public calamity named in the Brazos River Act was, in legal effect, damage, and loss of life and property, natural and man-made, caused by recurrent, devastating floods • in the valley of the Brazos River and its tributaries. It will also be noted that the public calamity recited in the 1939 Act here involved is, in legal effect, loss .of many lives and millions of dollars worth of property, and the continued threat of the loss of lives and property, natural and man-made, caused by the recurrent floods in Buffalo Bayou and other streams and tributaries in Harris County.

To our minds, it is too plain to admit of debate that the kind and character of “public calamity” upheld in the Brazos River Act is, in law, the same kind and character of public calamity found to exist in the 1939 Act here involved. This Court held the grant or donation constitutional in the Brazos River Act. It ought, therefore, to follow that it is constitutional in this Act.

The parties to this proceeding have agreed to what the facts are with reference to the floods which have occurred in the past in Harris County, and the consequent devastation and loss of property and lives. We will not extend this opinion by attempting to set out such facts. It is sufficient to say that the “public calamity” shown thereby differs from the “public calamity” existing in the Brazos River Act only in degree or amount. If a public calamity within the meaning of Section 51 of Article III existed with reference to the Brazos River Act, it cannot be said, as a matter of law, that it does not exist with reference to this Act.

By his second proposition the Attorney General contends that both the 1937 and the 1939 Acts here involved violate Sections 51 and 52 of Article III of our State Constitution, Vernon’s Ann.St. It appears that Section 2 of the Act of 1937, Vernon’s Ann. Civ. St. title 128, c. 8 note, authorizes this District “to contribute to the United States of America or any óf its agencies in connection with any project undertaken by it affecting or relating to flood control in Harris County.” The Act of 1939 provides, in effect, that the taxes donated to this District “shall be used by the said Harris County Flood Control District to carry out the powers given herein and in Chapter 360, Acts of the Regular Session of the 45th Legislature, 1937, creating said District.” Sp.Acts 1939, p. 976, c. 8, § 1. We think the two Acts, when taken as a whole, merely authorize the District to co-operate with the Federal Government in carrying out the purposes of the District. We overrule the second proposition, supra.

By his third proposition the Attorney General contends that the Act of 1939 violates Sections 49' and 51 of Article III and Section 6 of Article VIII of our State Constitution, in that.it attempts to appropriate the moneys therein sought to be granted for a period of ten years to the Harris County Flood Control District; to be used for purposes which have no reasonable or substantial relationship .to the affording of aid for the relief or prevention of a public calamity. We think we have disposed of these objections in our discussion of the first and second propositions contained in the Attorney General’s answer. Also, we think Judge Cureton’s opinion in the Brazos River, etc., case, supra, decides all questions involved in this proposition adversely to the contentions of the Attorney General.

By his fourth proposition the Attorney General contends that the Act of 1939 violates Section 1 of Article II and Section 6 of Article VIII of our State Constitution, Vernon’s Ann.St., in that it attempts to confer upon the governing body of Harris County Flood Control District legislative authority to determine or choose the purposes to which the granted money may be applied, and the amount to be devoted to each purpose. We think that all of the purposes named in the two Acts come within, what is known as the Conservation Provisions of our State Constitution, Section 59, Article XVI.

The Act of 1937 here involved contains the following provision: “Should the necessity arise, the Commissioners’ Court may supplement from its general funds any State taxes hereafter donated and granted, but no tax shall ever be levied or any debt be created against the County for such purpose without a vote of the people.” Acts 1937, c. 360, § 12-b, Vernon’s Ann.Civ.St. title 128, c. 8 note.

The Act of 1939 contains the following provision: “Should the necessity arise, the Commissioners’ Court may supplement the State taxes herein donated and granted from its general funds.” Sp.Acts 1939, p. 977, c. 8, § 2.

By his fifth proposition the Attorney General contends that both of the above-quoted provisions are void, because in contravention of Section 52 of Article III and Section 59 of Article XVI of our State Constitution.

So far as pertinent here, Section 52 of Article III of our State Constitution prohibits the Legislature from authorizing any county to lend its credit, or to grant public money or thing of value, in aid of any corporation whatsoever. We have already held that this District is a governmental agency and a body politic and corporate, separate and independent from Harris County. It follows that, under the plain terms of Section 52 of Article III, supra, no part of the funds of Harris County can be pledged or used to pay the bonds of this District.

We do not think the statutory provision under consideration involves Section 59 of Article XVI of our State Constitution at all.

The sixth proposition contained in the Attorney General’s answer is as follows: “If the Harris County Flood Control District is an arm or agency of the state government, a body politic and corporate separate and distinct from Harris County, the provision of the Act creating it imposing upon the Commissioners’ Court of- Harris County the power and duty of managing the affairs of such state agency is violative of the implied restraint imposed upon the Legislature by the provisions of Article V, Section 18, of the Constitution, which limits the duties which may be imposed upon the County Commissioners’ Court to 'county business’; but, in any event, so much of the Act as purports to vest management and control of the District in the Commissioners’ Court of Harris County is a special or local law ‘regulating the affairs of counties’ and ‘prescribing the powers and duties of county 'officers,’ and therefore violative of Article III, Section 56, of the Constitution.”

It will be noted that the above proposition embraces the contention that the Act of 1937 creating this District violates a certain part of Section 56 of Article III of our State. Constitution, Vernon’s Ann. St., which we will later indicate, as well as Section 18 of Article V of such document.

The part of Section 56 of Article III of our Constitution which the Attorney General contends is violated by this Act reads as follows:

“The Legislature shall not, except as-otherwise provided in this Constitution, pass any local or special law, authorizing: * * *
“Regulating the affairs of counties
“* * * prescribing the powers and duties of officers, in counties * * *

We are of the opinion that we have disposed of the contention that the 1937 Act violates that part of Section 56-of Article III of our State Constitution above indicated in our holding that this-Act creates this District as a State governmental agency, a body politic and corporate, separate, distinct, and independent within itself. Simply stated, the Act of 1937 is fully authorized by Section 59 of Article XVI of our State Constitution,, and the 'Act creating this District should not be classed as a local or special law within the meaning of the constitutional provision under discussion. Lower Colorado River Authority v. McCraw, 125 Tex. 268, 83 S.W.2d 629; Brazos River Con. & Rec. Dist. v. McCraw, 126 Tex. 506, 91 S.W.2d 665.

Section 18 of Article V of our State Constitution reads as follows: “Sec. 18. Each organized county in the State now or hereafter existing, shall be divided from time to time, for the convenience of the people, into precincts, not less than four and not more than dght. The present County Courts shall make the first division. Subsequent divisions shall be made by the Commissioner’s Court, provided for by this Constitution. In each such precinct there shall be elected at each biennial election, one justice of the peace and one constable, each of whom shall hold his-office for two years and until his successor shall be elected and qualified; provided that in any precinct in which there may be a city of 8000 or more inhabitants, there-shall be elected two justices of the peace. Each county shall in like manner be divided into four commissioners’ precincts-in each of which there shall be elected by the qualified voters thereof one county commissioner, who shall hold his office-for two years and until his successor shall-be elected and qualified. The county commissioners so chosen, with the county-judge, as presiding officer, shall compose-the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed.”

The Attorney General contends that if this Act is given the construction that it creates this District as a separate and independent corporate political entity from Harris County, the attempt to make the Commissioners’ Court of such county its governing board or authority violates that part of Section 18 of Article V of our State Constitution which provides that the Commissioners’ Court “shall exercise such powers and jurisdiction over all county business, as is conferred by this ■ Constitution and the laws of the State, or as may be hereafter prescribed.” It is evident that such constitutional provision contains no direct or express prohibition against clothing the Commissioners’ Court with powers and duties other than “county business.” It follows that if such provision prohibits the Legislature from clothing the Commissioners’ Courts with powers and duties not classed as “county business,” it is by implication only. It would seem that this Court is committed to the interpretation that the constitutional provision under discussion does, by implication, prohibit the Legislature from requiring duties from the Commissioners’ Courts not “county business.” Sun Vapor Electric Light Co. v. Keenan, 88 Tex. 197, 30 S.W. 868. A reading of the opinion in the case just cited will disclose that it holds that' under the constitutional provision under discussion, a Commissioners’ Court cannot be required to perform duties not “county business.” The opinion does not hold that the Commissioners’ Court cannot act under a law authorizing it to perform functions other than “county business,” if it so chooses. That question was expressly not decided in the Keenan case, supra, and we do not decide it here, as it is not necessary to do so.

After a careful review of the authorities, we have reached the conclusion that it is already settled that the implied prohibition contained in Section 18 of Article V of our State Constitution, against requiring Commissioners’ Courts to perform duties not classed as “county business,” cannot be confined in such a narrow groove as to prohibit the Legislature from committing to commissioners’ courts the governing affairs of conservation and reclamation districts, such as this, created by the Legislature under the express authority of Section 59 of Article XVI of our State Constitution, — where the district is located within the county of the commissioners’ court authorized and required to govern it. Wharton County Drainage District No. 1 v. Higbee, Tex.Civ.App., 149 S.W. 381, writ refused; Morton v. Thomson, Tex.Civ.App., 15 S.W.2d 1067; Glenn v. Dallas County Bois d’Arc Island Levee Dist., Tex.Civ.App., 275 S.W. 137; Dallas County Bois d’Arc Island Levee Dist. v. Glenn, Tex.Com.App., 288 S.W. 165.

In the Wharton County Drainage District No. 1 case, supra, it is shown the district was created by authority of Chapter 40, Acts 30th Legislature, 1907, page 78, as amended by Chapter 13, Acts 31st Legislature, 1909, page 23. These two Acts are very complicated and comprehensive. For the purposes of this opinion, we will quote the captions of the two Acts.

The caption.of the 1907 Act is as follows: “An Act to authorize the commissioner courts of the several counties of Texas to create and establish drainage districts, to construct canals, drains and ditches, to make levees, improve streams and water courses and make other improvements for the purpose of drainage; to order and hold elections for the purpose of voting on drainage propositions, and authorizing the issuance of bonds and levy of tax, and to issue bonds in payment for such drainage improvements and the maintenance thereof, and to levy and to collect taxes for the payment of such bonds, to appoint drainage commissioners and all other necessary officers of such drainage districts for the purpose óf carrying into effect the provisions of this act; granting the right of eminent domain to such drainage districts, and authorizing the drainage commissioners to acquire by purchase, gift or grant, for such district, title to any right of way and other property, and generally authorizing the county commissioners court and the drainage commissioners to do all things necessary for the establishing and maintenance of such districts according to the provisions of this act; repealing all laws and parts of laws in conflict herewith, and declaring an emergency.”

The caption of the 1909 Act reads as follows: “An Act to amend Sections Nos. 2, 11, 12, 13, 16, 17, 22, 23, 29, 30, 35, 41 and 44 of Chapter XL of the General Laws of the State of Texas, passed at the Regular Session of the Thirtieth Legislature of Texas, entitled ‘An Act to authorize the commissioners courts of the several counties of Texas to create and establish drainage districts, to construct canals, drains and ditches, to make levees, improve streams and water courses and make other improvements for the purpose of drainage; to order and hold elections for the purpose of voting on drainage propositions, and authorizing the issuance of bonds and levy of tax, and to issue bonds in payment for such drainage improvements and the maintenance thereof, and to levy arid collect taxes for the payment of such bonds, to appoint drainage commissioners and all other necessary officers of such drainage districts for the purpose of carrying into effect the provisions of this Act; granting the right of eminent domain to such drainage districts, and authorizing the drainage commissioners to acquire by purchase, gift or grant, for such district, title to any right of way and other property, and generally authorizing the county commissioners court and the drainage commissioners to do all things necessary for the establishing and maintenance of such districts according to the provisions of this Act; repealing all laws and parts of laws in conflict herewith, and declaring an emergency’; validating certain proceedings had and bonds heretofore issued and registered, providing for additional elections and issuance of bonds, elections of drainage district commissioners, fixing a tax lien and penalty, repealing all laws in conflict herewith, and declaring an emergency.”

It would take up too much space in this opinion for us to undertake to analyze all the provision of the above drainage Acts and detail all of the duties that they impose upon commissioners’ courts. We do, however, point out the fact that such Acts devolve the following powers and duties upon commissioners’ courts: To create and establish drainage districts; to order and hold elections for the purpose . of voting on drainage propositions; to order and hold elections authorizing the issuance of bonds and levy of taxes; to issue bonds in payment for the improvements and maintenance of drainage districts; to levy taxes for the payment of such bonds; to appoint drainage commissioners and all other necessary officers of such drainage -districts; and to generally authorize the commissioners’ courts and the drainage commissioners to do all things necessary for the establishment and maintenance of such districts according to the provisions of the Act. Certainly, the powers above enumerated come no nearer to constituting county business than the power conferred and duties required by the Acts of 1937 and 1939 under consideration in this case. In the Wharton County Drainage District No. 1 case, supra, the Act was attacked on the ground that it required duties of the commissioners’ court not county business, in violation of Section 18 of Article V of our State Constitution. In a very exhaustive opinion the Court upheld the Act, as against the attack above indicated. We quote, with approval, the following from the opinion [149 S.W. 388]: “It is also contended by appellees that the drainage law is unconstitutional under the provisions of section 18, article 5, of the Constitution, with reference to the powers of the commissioners’ court. The particular provision alleged to be violated is as follows, after making provision for the election of commissioners: ‘The county commissioners so chosen, with the county judge, as presiding officer, shall compose the commissioners’ court, which shall exercise such powers and jurisdiction over all county business as is conferred by this Constitution and the laws of the state, or as may be hereafter prescribed.’ In Sun Vapor Electric Light Co. v. Keenan, 88 Tex. [197] 201, 30 S.W. 868, it was held by our Supreme Court that the commissioners’ court could not be required to perform the duties imposed upon it by an act of the Legislature requiring it to take charge of and administer the affairs of the defunct corporation of the city of Seymour, whose charter had been declared void. The ground of the decision was that this was not ‘county business’ within the meaning of the provisions of the Constitution above quoted. Whether the court could voluntarily exercise such powers is expressly not decided. We confess that it appears to us that, if the commissioners’ court could not be required to perform, such duties because beyond the powers conferred by the Constitution, for a like reason it could not voluntarily do so, though the 'court cites the case of Brown v. Wheelock, 75 Tex. 385, 12 S.W. 111, 841, as probably authority for a different holding. We think that there is a clear distinction between a drainage district, as provided for in the act of the Legislature in question, under the express authority of the constitutional amendment with reference thereto and a town or city corporation, with reference to the relation of each to the county business. A drainage district as created under the act in question is a part of the county, in a sense that distinguishes it from a town or city corporation created as a separate entity. Under the provisions of the amendment to the Constitution referred to, the entire county, or any precinct thereof, might he made a drainage district. In such case it seems clear that no one would be heard to say that the business of such drainage district was not county business, within the meaning of the provisions of the Constitution as to the powers of the commissioners’ court. When, instead, a district is formed of a part of the county without regard to the lines of any existing political subdivision of the county, there seems no substantial basis, for the argument that the business of the creation of such district and the management of its affairs, in so far as they are committed by this act to the commissioners’ court, is not county business. Such districts stand upon the same footing in all essential particulars, so far as this objection is concerned, as irrigation districts, navigation districts, road districts, levee districts, school districts, and even local option districts, whether under the provisions of the liquor laws, or with regard to stock running at large in certain territory, all of which, under thé-provisions of the particular statutes providing therefor, are created and organized under the direction and supervision of the commissioners’ court. The argument is made that as to none of these is the commissioners’ court given such powers as with regard to drainage districts. That can make no difference, if the principles announced in the Keenan Case have any application. If the business of these various districts is not county business, then under that decision no part of such business can be imposed upon the commissioners’ court. It seems clear to us that, if the powers and duties of the commissioners’ court with reference to drainage districts cannot be imposed upon said court because not county business, it would be equally powerless to discharge the duties imposed upon it by the various local improvement statutes referred to, with the result of striking down at one blow every act of this kind. enacted by the Legislature. It has become the settled policy of the state to confer such powers on commissioners’ courts. The executive and legislative departments of the government have construed the constitutional provision referred to as authorizing the exercise of such powers by them, and it would have to be a very clear case that would justify the courts in holding otherwise, to the destruction of this kind of legislation, with all of its disastrous consequences. It was stated arguendo by the Court of Criminal Appeals, in Chapman v. State, 37 Tex.Cr. R. 167, 39 S.W. 113, in answer to an objection of the same kind with regard to the power of the Legislature to impose upon commissioners’ courts the duties imposed upon them by the local option liquor laws, that if the power had not been authorized by the Constitution with reference to such laws, and the jurisdiction of commissioners’ courts was specifically defined, there was nothing to prevent the Legislature from conferring this additional jurisdiction. We think that the duties imposed by the Legislature upon the commissioners’ courts by the drainage act may fairly be classed as county business, and the objection to the act referred to is not sound.”

In Morton v. Thomson, supra, it is shown that a levee district was created under the levee district Act of 1915 (Acts 34th Leg., ch. 146), and what is generally known as the Canales Act of 1918 (Acts 35th Leg., 4 C.S., ch. 25). These Acts require and empower commissioners’ courts to perform services and duties as regards levee districts fully as comprehensive and no more “county business” than were required in the Acts involved in the Wharton County Levee District No. 1 case, supra. In Morton v. Thomson, supra, the Act was attacked on the ground that it empowered and required commissioners’ courts to perform duties and functions not “county business” within the meaning of Section 18, Article V, of our State Constitution. The opinion rejects such contention, and holds the Act not in contravention of the constitutional provision mentioned. We quote the following from the opinion [15 S.W.2d 1070]:

“Our courts have uniformly held that the creation of • levee districts under the provisions of the Levee District Act of 1915, and of the Canales Act of 1918, constitutes ‘county business’ within the meaning of the Constitution of this state, and was within the legislative powe.r to provide for the creation of such districts by such commissioners’ courts. Glenn v. Dallas County Bois d’Arc Island Levee Dist. (Tex.Civ.App.) 275 S.W. [137] 138, and on second hearing (Tex.Civ.App.) 282 S.W. 339; Wharton County Drainage Dist. No. 1 v. Higbee (Tex.Civ.App.), 149 S.W. 381; Preston v. Anderson County Levee Imp. Dist. No. 2 (Tex.Civ.App.) 3 S.W.2d [888] 891.
“In that case the levee was organized under the authority and proceedings of the commissioners’ court for the purpose of reclamation and drainage of certain lands. In discussing the issues presented Judge Levy said: ‘Neither is the Act opposed to Section 18 of Article 5 of the Constitution upon the ground that it imposes duties upon the Commissioners’ Court not constituting “County business” in the meaning of that term. The levee district is created as a public utility,’ etc. In that case a writ of error was refused.

“In the Wharton County Drainage Dist. No. 1 v. Higbee, it was submitted that under the provisions of section 18, art. 5 of our Constitution, defining the powers of commissioners’ courts, such courts could not lawfully discharge the duties imposed upon it by the terms of the drainage act. In the opinion Judge Reese distinguishes the drainage case from the Sun Vapor Electric Light Co. v. Keenan, 88 Tex. [197] 201, 30 S.W. 868, and Brown v. Wheelock, 75 Tex. 385, 12 S.W. 111, 841, referred to in the [Sun Vapor Electric] Light Co. v. Keenan Case, and says: ‘In such case (the drainage case then being considered), it seems clear that no one would be heard to say that the business of such drainage district was not county business, within the meaning of the provisions of the Constitution as to the powers of the Commissioners’ Court. * * * We think that the duties imposed by the Legislature upon the Commissioners’ Courts by the drainage Act may fairly be classed as county business, and the objection to the act referred* to is not sound.’ A writ of error was refused.”

In Glenn v. Dallas County Bois d’Arc Island Levee District, supra, a levee district was created under Chapter 44, General Laws, 4th Called Session, 35th Legislature, generally called the “Laney • Act.” That Act clothed commissioners’ courts with many duties regarding levee districts very similar to the Acts above discussed, and fuily as comprehensive. That Act was attacked on the ground that it clothed the commissioners’ court with powers and duties not “county business” within the meaning of Section 18 of Article V of our State Constitution. We will not quote from this opinion. It is sufficient to say that it very correctly holds that the phrase “county business” used in the constitutional provision under discussion, should be given a broad and liberal construction so as to extend powers to any and all business of a county, and any other business of a county connected with or interrelated with any business of the county properly within the jurisdiction of such courts under our Constitution and laws. The Supreme Court granted writ of error in the case under discussion, and referred it to the Commission. The opinion of the Commission is reported at 288 S.W. 165. The Commission opinion reverses the judgment of the Court of Civil Appeals, but it in no way disapproves the holding of that court on the question under discussion. It seems to be argued by the Attorney General that in none of the Acts involved in the cases above discussed are the duties and powers of the commissioners’ courts as complete and comprehensive as they are in the Act involved in this case. We freely grant that such is the case, but that can make no difference. The constitutional questions are, in principle, the same, and the difference is only of degree.

From what we have said it is evident that we hold that the powers conferred on and the duties required. of the Commissioners’ Court of Harris County by the two Acts here involved constitute “county business” within the meaning of Section 18 of Article V of our Constitution.

The seventh proposition contained in the Attorney General’s answer is as follows: “The expenditure of the money granted by Senate Bill No. 6 would be state business, certainly in part; and, to the extent that it should be state business (as distinguished from ‘county business’) the Commissioners’ Court could not be empowered to superintend and govern the same, under Article 5, Section 18, of the State Constitution.”

We think we have disposed of the contention contained in the above proposition in our discussion supra of the sixth proposition contained in the Attorney General’s answer. We allude to our discussion of Section 18 of Article V under such proposition.

The eighth proposition contained in the Attorney General’s answer is as follows: “If the expenditure of any of the funds provided in Senate Bill 6 is rendered '‘county business’ by virtue of the nature of the improvements therein provided to be constructed, then to that extent said Senate Bill 6 would be regulatory of county business and would be prescribing the powers and duties of the County Commissioners of Harris County, by giving them additional duties, to wit, superintending the erection of such improvements, and would be violative of Article 3, Section 56 of the State Constitution.”

We have already .disposed of this contention in the other portions of this opinion.

The ninth proposition contained in the Attorney General’s answer is as follows: “To whatever extent the uses of the money authorized in Senate Bill 6 are for county purposes the same is violative of Article 8, Section 9 of the State Constitution.”

Section 9 of Article VIII of our State Constitution, Vernon’s Ann. St., reads as follows: “Sec. 9. The State tax on property, exclusive of the tax necessary to pay the public debt, and of the taxes provided for the benefit of the public free schools, shall never exceed thirty-five cents on the one hundred dollars valuation; and no county, city or town shall levy more than twenty-five cents for city or county purposes, and not exceeding fifteen cents for roads and bridges, and not exceeding fifteen cents to pay jurors, on the one hundred dollars valuation, except for the payment of debts incurred prior to the adoption of the amendment September 25th, 1883; and for the erection of public buildings, streets, sewers, water works and other permanent improvements, not to exceed twenty-five cents on the one hundred dollars valuation; in any one year, and except as is in this Constitution otherwise provided ; and the Legislature may also authorize an additional annual ad valorem tax to be levied and collected for the further maintenance of the public roads: provided, that a majority of the qualified property tax-paying voters of the county voting at an election to be held for that purpose shall vote such tax, not to exceed fifteen cents on the one hundred dollars valuation of the property subject to taxa-txon in such county. And the Legislature may pass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws.”

The bonds here involved are the bonds of the District; not of Harris County. The $500,000 bond issue has been duly authorized by vote of the District. The $3,000,000 bond issue is secured alone by the State taxes donated to the District. Such donation and bonds are constitutional. Brazos River Con. & Rec. Dist. v. McCraw, supra.

From what we have said, it is evident that we hold that any part of either the Act of 1937 or the Act of 1939 which attempts to authorize Harris County to use any part of its county funds to secure or pay these bonds, or any part thereof, is void. We hold, however, that both Acts are otherwise valid and constitutional.

Mandamus is awarded, as prayed for by Harris County Flood Control District.

MOORE, C. J., disqualified and hot sitting.


source: Caselaw Access Project

author: CRITZ, Justice.

license: Public Domain

text:
    DALLAS COUNTY et al. v. McCOMBS et al.
    No. 24823.
    Supreme Court of Texas.
    June 12, 1940.

      Andrew Patton, Cr. Dist. Atty., and E. G. Moseley, David M. Weinstein, Harold McCracken, Paul Peurifoy, Asst.Crim. Dist.Attys., all of Dallas, for plaintiffs in error.
    Gerald C. Mann, Atty. Gen., W. F. Moore and Glenn R. Lewis, Asst. Attys. Gen., and McCombs & Andress, of Dallas, for defendants in error.
   CRITZ, Justice.

This cause is before us on application for writ of error.' The suit was filed in the District Court of Dallas County by Charles S. McCombs and William Andress, Jr., resident tax-paying citizens ,of Dallas County, against the County of Dallas and the County Judge and certain other officers of Dallas County, seeking a permanent injunction against the enforcement of Senate Bill No. 224, chapter 20, Acts Regular. Session 46th Legislature, 1939, page 668, Vernon’s Ann.Civ.St. art. 7294a. The State, acting through Honorable. Gerald C. Mann, Attorney General", intervened on the side of those seeking the injunction. As grounds for the injunction sought, the plaintiffs in the district court and the Attorney General contend that the above-mentioned Act is void, because in contravention of various provisions of the Constitution of this State fully detailed in the opinion of the Court of Civil Appeals. On final trial in the district court, the constitutionality of the Act was upheld, and the injunction sought denied. Appeal was had to the Court of Civil" Appeals at Dallas. On final hearing in that court, the judgment of the district court was reversed, and judgment rendered perpetually enjoining the enforcement of the above Act. 136 S.W.2d 975. The case is before this Court on application filed by the defendants in the district court. We refer to the opinion of the Court of Civil Appeals for such further statement as is not contained in this opinion.

The opinion of the Court of Civil Appeals holds this Act in contravention of various provisions of our State Constitution. We think the judgment of the Court of Civil Appeals is undoubtedly correct,, but we do not express an opinion, on all of the constitutional questions discussed and decided by that court, because it is not. necessary to do so.

Section 1 of this Act attempts to grant: and donate, for a period of five years,, beginning with the taxable year 1940, to-each of the respective counties of this State one-half of the State ad valorem, taxes collected for general revenue purposes upon the property, and from persons, in each respective county, with certain exceptions.

The opinion of the Court of Civil Appeals holds that the above-mentioned provision of this Act contravenes Section 6< of Article VIII of our State Constitution* Vernon’s Ann.St. It is clear that if this is true, the entire Act must fall. Such constitutional provision reads as follows: “Sec. 6. No money shall be drawn from the. Treasury but in pursuance of specific appropriations made by law; nor shall any-appropriation of money be made for a longer term than two years, except by the first Legislature to assemble under this, Constitution, which" may make the necessary appropriations to carry on the government until the assemblage of the sixteenth Legislature.”

■ To our minds, the attempt to grant or' donate the State taxes above described'' for a period of five years to the various counties of this State provided in the Act, violates both the spirit and the letter of that part of Section 6 of Article VIII, supra, which prohibits the Legislature from making an appropriation for a longer term than two years.

Plaintiff in error contends that even if this appropriation running for five years is in violation of the two years’ provision of Section 6 of Article VIII of our Constitution as applied to the five year period taken as a whole, still it is not in violation of such constitutional provision as applied to the first two years of the five year period. It seems to be the law that where the Legislature has made "an appropriation in unmistakable terms,” which continues for a longer period than two years, such appropriation may be upheld for the first two years, and would he inoperative thereafter. Pickle v. Finley, 91 Tex. 484, 44 S.W. 480, 482. It will he noted that the rule of law announced in Pickle v. Finley, supra, contemplates that that appropriation shall be made “½ unmistakable terms.” We interpret this to mean that if an appropriation is made for more than two years, it can be enforced for the first two years if it appears that the Legislature undoubtedly intended such appropriation to operate for two years, regardless of whether or not it could do so thereafter. We think that this rule cannot aid this appropriation, because when all of the provisions of this Act are considered together, we cannot say that the Legislature would undoubtedly have passed it to operate for two years only, instead of five years as provided by the Act.

In Harris County Flood Control District v. Mann, Attorney General, 140 S. W.2d 1098, this day decided by this Court, we are upholding a grant or appropriation of State general revenue taxes for ten years to the above-named flood control district; but such grant is upheld as “aid in cases of public calamity,” as provided for in Section 51 of Article III of our Constitution. As pointed out by Judge Looney’s opinion in this case, it was held in City of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818, that a grant of State taxes for a longer period than two years under authority of Section 8 of Article XI of our State Constitution was not controlled by the two year provision of Section 6 of Article VIII, supra. Section 8 of Article XI authorizes the Legislature to grant aid to counties and cities on the Gulf Coast for certain purposes. Also, as shown by Judge Looney’s opinion in this case, it was held in Brazos River, etc., v. McCraw, 126 Tex. 506, 91 S.W.2d. 665, that a grant of State taxes for more than two years under authority of Section'51 of Article III of our Constitution was not controlled by the two year provision of Section 6 of Article VIII, supra. Section 51 of Article III authorizes the Legislature to grant “aid in cases of public calamity.”

The Act under consideration contains an emergency clause. Such clause is as follows : “Sec. 7. The fact that the various Legislatures of the State of Texas from time to time have donated and appropriated the State ad valorem taxes to a large majority of the counties of this State, together with donations and appropriations of said taxes to various cities, districts and other political subdivisions for various reasons and various purposes, which unless said taxes are donated and granted for like improvements in those counties not heretofore receiving such aid and benefit from the State will create a discrimination and hardship on said-counties, and for the further fact that these counties not having heretofore received such donations and appropriations have, from time to time, been visited with public calamities of one kind or another, and the fact that said counties are in need of said funds for the purpose of making public improvements in said counties, such improvements being for Statewide purpose and benefit, create an emergency and an imperative public necessity demanding that the Constitutional Rule requiring bills to be read on three several days in each House be suspended, and the same is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.”

It will be noted that the above-quoted emergency clause contains the statement: “ * * * and for the further fact that these counties not having heretofore received such donations and appropriations have, from time to time, been visited with public calamities of one kind or another, * * ■* create an emergency * * * ”. It seems to be contended by plaintiffs in error that the above-quoted portion of this Act can be treated as a legislative- finding that a necessity exists in all counties benefited by this grant or appropriation for “aid in cases of public calamity,” as provided for in Section 51 of Article III of our State Constitution, supra. To our minds, the above attempt to make a finding of “public calamity” falls far short of meeting the requirements of the constitutional provision 'just mentioned. No attempt is made to define the kind or character of “public calamity.” In fact, it is expressly stated that such calamities are “one kind or another.” Such a finding is so general, vague, and indefinite as to amount to nothing. To give effect to such a finding would be to make a travesty of that part of Section 51 of Article III of our Constitution which allows the Legislature to grant aid “in cases of public calamity.”

We think our holdings above are not in conflict with the holding of this Court in Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761. Rather do we think the Linden opinion, by inference, sustains our view that this statute involves an attempt to appropriate money for more than two years. We quote the following from Chief Justice Phillips’ opinion in the Linden case: “The use of the counties of the State as a means of government is a use by the State and- for the State as a sovereignty. The effect of the statute, in association with other provisions of law is to set apart the excess fees of District Attorneys and other officials as State funds for the governmental purposes of the State with whose execution the counties, as instrumentalities of the State, are charged. Such a dedication is in no true sense a grant of public money. It is but an appropriation of funds of the State for the uses of the State. It is therefore a constitutional use, having no character of a bounty or gratuity.”

It will be noted that Chief Justice Phillips in the above-quoted portion of his opinion holds that “It is but an appropriation of funds of the State for the uses of the. State.” (Italics ours.) The two year prohibition contained in Section 6 of Article VIII was not violated in the Act under consideration in the Linden case. To say the least, the fees collected by Linden as district attorney, and paid by the State, had to be collected by him by virtue of a biennial appropriation made by the Legislature. Finally, we do not find that Section 6 of Article VIII of our Constitution is even mentioned in the Linden opinion.

We think that our holding that this appropriation violates Section 6 of Article VIII of our Constitution is not in conflict with the holding of this Court in Cherokee County v. Odom, 118 Tex. 288, 15 S.W.2d 538; Id., Tex.Civ.App., 297 S.W. 1055. In the Odom case the Commissioners’ Court of Cherokee County contracted with an engineering firm under -authority of Article 7335, R.C.S.1925, to prepare a complete abstract of property assessed, or unknown and unrendered, upon which taxes were delinquent, and for which they were to receive a percentage of all such delinquent taxes, State and County, as thereafter collected. It was held that such a contract did not violate Section 6 of Article VIII of our State Constitution, supra. We see no similarity whatever between that case and this case as regards the constitutional provision just mentioned.

The applidation for writ of error in this case is refused. As above indicated, we refuse this application because we are of the opinion that this Act is clearly unconstitutional and void, as in violation of Section 6 of Article VIII of our State Constitution. We express no opinion on the other constitutional questions involved, as it is not necessary for us to do so.

MOORE, C. J., disqualified and not sitting.


author: FUNDERBURK, Justice

text:
    SIPE v. SAYER et al.
    No. 2002.
    Court of Civil Appeals of Texas. Eastland.
    March 29, 1940.
   Appeal from District Court, Fisher County; W. R. Chapman, Judge.

'Dissenting opinion.

For majority opinion, see 140 S.W.2d 297.

FUNDERBURK, Justice

(dissenting).

In my opinion, the plaintiffs prayed for a temporary injunction. They prayed that “writ of injunction issue out of this court, restraining defendants, and each of them, from selling said property so illegally levied upon * * *Standing alone, that part of the prayer could, of course, have referred either to a preliminary injunction or a permanent injunction, but its meaning is made certain, I think, by the succeeding clauses reading: “and that defendants be cited to appear and answer, and that upon final hearing that said injunction he made permanent.” (Italics ours). The first part of the prayer was for an injunction which, as shown by the last part, it was desired by the final judgment to be made permanent. That, I think, sufficiently identifies the injunction first prayed for as a temporary injunction. Temple Ind. Sch. Dist. v. Proctor, Tex.Civ.App., 97 S.W.2d 1047; Wilkenfeld v. Ballard, Tex.Civ.App., 84 S.W.2d 279.

I am further of the opinion that the honorable trial judge’s conclusions of fact required the conclusion of law that the 140 acres owned by W. R. Sipe was exempt as a homestead, and, therefore, that the temporary injunction should have been granted as to said 140 acres, the same as the other tract.

The finding showed a partition of 420 acres in such a way that W. R. Sipe became the owner in severalty of the west 140 acres; that he “at once, with his brothers, marked off the west 140 acres of said land as his own.” It was further found that at the time of said partition there was a building on the middle tract in which the mother and three sons, among whom the partition of the whole tract was made, were living, and that “W. R. Sipe together with his wife and children lived in said building and continued to live in the same until the year 1926.” Further findings showed affirmatively that if said land ever was the homestead of W. R. Sipe it was never abandoned, the specific finding being that “he has intended at all times since acquiring said land to move on the same as soon as he could build a house thereon.”

Under the authorities cited in the majority opinion as applicable to said findings, the partition of the 420-acre tract did not work a discontinuance of W. R. Sipe’s' homestead in the 420-acre tract, but only restricted it to the 140 acres. There being no issue suggested that he had previously had a homestead upon any other land, the 140-acre tract was his homestead in law and in fact. He could not have executed a valid mortgage thereon nor created an estoppel to claim the exemption by representations to the effect that it was not his homestead. Texas Land & Loan Co. v. Blalock, 76 Tex. 85, 13 S.W. 12; Haile v. Federal Land Bank, Tex.Civ.App., 135 S.W.2d 1024.

Thus far, perhaps, all members of the court may be in agreement. The question is, should the judgment nevertheless be affirmed on the ground that plaintiffs’ petition was defective in alleging the precise manner in which said land became appellant’s homestead? Certain it is, I think, that the judgment was not based upon any defects in pleadings. It may be conceded that if the court had granted the temporary injunction, ex parte, upon the pleadings, and the defendant had appealed, it would be necessary to reverse the judgment. That would result only because in such case the allegations of the pleadings would constitute the only facts by which to test the propriety of granting the injunction. But here the learned trial judge heard the evidence. That, of course, presupposed the sufficiency of the pleadings. The evidence showed that while upon one theory (and evidently the only one in the mind of the court) the granting of the temporary injunction was not required, upon another it was required to preserve the subject matter in suit. The temporary injunction imperatively required to preserve the subject matter of the suit would, I think, be governed by no different rule than a temporary injunction in a divorce suit — both having the same purpose. It has been held that in divorce cases temporary injunctions may be required to preserve the subject matter of .the suit even though the plaintiff’s petition be subject to a general demurrer. Wright v. Wright, 3 Tex. 168; Dakan v. Dakan, Tex.Civ.App., 53 S.W.2d 682. And why not? Should a court whose jurisdiction is invoked to preserve the subject matter of a pending suit, upon a hearing of the evidence whereby it appears that the plaintiff has a cause of action attempted to be alleged and which requires the restraint of some act in order to preserve the subject matter of the suit, to be disposable by the final judgment, refuse to grant such relief solely because of the omission of plaintiff to allege some fact which the evidence shows to exist and which, of course, may readily be supplied and presumptively will be, by amendment when the court is called upon to pass upon the sufficiency of the pleadings? I find myself unable to concur in that view.


author: CHRISTIAN, Judge.

text:
    Bevie BIGGERS, Appellant, v. The STATE of Texas, Appellee.
    No. 21121.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    J. Earle Kuntz and Philip S. Kouri, both of Wichita Falls, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is murder; the punishment, confinement in the penitentiary for two years.

Upon the written request of appellant, duly verified by his affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the 'Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


author: GRAVES, Judge.

text:
    Jess DIXON v. STATE.
    No. 21219.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    R. W. Webb, of Snyder, and R. Temple Dickson, of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

The appellant was convicted of the theft of one head of cattle, and his punishment assessed at five years’ confinement in the penitentiary. .

. Since his' appeal was perfected, the appellant has filed a written request, verified by his affidavit, asking the privilege of withdrawing his appeal. The request is granted and the appeal ordered dismissed.


author: HAWKINS, Presiding Judge.

text:
    Soteno LEDISIMA, Appellant, v. STATE of Texas, Appellee.
    No. 21076.
    Court of Criminal Appeals of Texas.
    May 22, 1940.
    Ronald Smallwood, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for aggravated assault and battery, punishment assessed being a fine of $25.

Appellant has filed his affidavit advising this court that he does not desire to further prosecute his appeal, and the same is ordered dismissed.


text:
    Sam WILLIAMS v. STATE.
    No. 21220.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    Wm. M. Hatten, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is theft; the punishment, confinement in the penitentiary for two years.

Upon the written request of appellant, duly verified by his affidavit, the appeal is dismissed.

PER CURIAM.

The foregoing opinion of the Commission of Appeals has been examined by the Judges of the Court of Criminal Appeals and approved by the Court.


text:
    J. B. RUSSELL v. STATE.
    No. 21215.
    Court of Criminal Appeals of Texas.
    June 12, 1940.
    George S. McCarthy, of Amarillo, for, appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   GRAVES, Judge.

Upon appellant’s plea of guilty of the offense of possessing a narcotic drug, to-wit, marihuana, and the waiver of a trial by jury, the court assessed his penalty at three years’ confinement in the penitentiary.

Since his appeal was perfected, the appellant has filed written request, verified by his affidavit, asking the privilege of withdrawing his appeal. The request is granted and the appeal ordered dismissed.


author: PER CURIAM.

text:
    Annette JONES, Appellant, v. Ross MADOLE, Administrator of the Estate of Ida Sauerwein, Deceased, Appellee.
    No. 10752.
    Court of Civil Appeals of Texas. San Antonio.
    May 22, 1940.
    G. Woodson Morris and Tom H. King, both of San Antonio, for appellant.
    Terrell, Davis, Hall & Clemens and A. V. Knight, all of San Antonio, for appellee.
   PER CURIAM.

Affirmed without written opinion. Associated Indemnity Corporation et al. v. J. M. Gatling, Tex.Civ.App., 75 S.W.2d 294.


author: WALKER, Chief Justice.

text:
    FIDELITY & GUARANTY FIRE CORPORATION, Appellant, v. Roy STUBBLEFIELD et al., Appellees.
    No. 3619.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 21, 1940.
    Rehearing Denied May 29, 1940.
    Mantooth & Denman and Ned Shands, Jr., all of Lufkin, and John Plunket and Malone, Lipscomb, White & Seay, all of Dallas, for appellant.
    Collins, Williams, Hatchell & Garrison, of Lufkin, for appellees.
   WALKER, Chief Justice.

This is a case of county court jurisdiction; judgment affirmed without written opinion. Texas & N. O. R. R. Co. v. Futch, Tex.Civ.App., 127 S.W.2d 1040.

Affirmed.


author: TAYLOR, Commissioner.

text:
    KELLER v. KELLER.
    No. 1829—7525.
    Commission of Appeals of Texas, Section B.
    June 12, 1940.
    Baker, Botts, Andrews & Wharton and J. C. Hutcheson, III, all of Houston, for plaintiff in error.
    Williams, Lee, Sears & Kennedy and George D. Sears, all of Houston, for defendant in error.
   TAYLOR, Commissioner.

This suit was filed by Mrs. Jessie P. Keller against her former husband, Hugh R. Keller, to recover her interest in certain items of community property which she alleges were not partitioned or awarded to either party in a property settlement made upon the granting of Mrs. Keller’s petition for divorce about two years before the filing of the present action. The .trial court before whom the case was tried without a jury denied plaintiff any recovery, and, in addition, corrected and supplemented the divorce judgment in the manner hereinafter stated.

The Court of Civil Appeals reversed the judgment of the trial court and allowed plaintiff recovery of one-half of one of the items sued for as having been omitted from the settlement, but in other respects, except as to costs of the trial court, affirmed the judgment. 122 S.W.2d 270, 271.

The background of plaintiff’s suit, and the grounds upon which it was based, are cleárly stated by the Court of Civil Appeals as follows:

“In contemplation of divorce appellant and appellee entered into an agreement dividing specified items of community property, and setting aside to appellant her separate property, on November 16, 1933. This agreement was incorporated in the divorce decree which was rendered on December 22, 1933. The agreement has no general or residuary clause awarding to either party any property not therein included. The following three items of property were not, eo nomine, included in the settlement, nor in the decree embodying the settlement, and appellant alleged that they were community property, and that she and appellee remained the owners of such property after their divorce, unaffected by the settlement agreement and decree.
“First Item: An indebtedness of $21,000 owing to appellee at the time of such settlement by the Cooper-Keller Oil Company, which was paid to appellee in full, five days after the divorce decree.
“Second Item: An item of $20,000 owing to appellee by the Cooper-Keller Oil Company as salary for the year 1933, and which was paid to him in full about the end of 1934. •
“Third Item: 50 shares of the capital stock of the Cooper-Keller Oil Company, of the value of $46,250. * * *
“As to the fifty shares of stock, appellant concedes that it was the intention of the parties that it should have gone to appellee bv the terms of the agreement, for she knew that one-half of the shares of the capital stock was the community property of herself and appellee, but by a mutual mistake it was supposed that the capital stock consisted of 100 shares, whereas, in reality, it consisted of 200 shares, so that in apportioning the stock in the corporation to ap-pellee the parties should have described it as 100 shares, instead of 50 shares, as they in fact did. She concedes that this error should have been corrected by. reforming the settlement agreement, except that she asserts appellee has cut himself off from the right to this equitable remedy, by having deceived her with .respect to items No. 1 and No. 2. She claims, therefore, that as to the remaining 50 shares of stock, that she must be decreed an interest therein, or receive reparation therefor, in consequence of appellee having no right to have the settlement agreement reformed to carry into effect the mutual understanding that appel-lee should have all the stock in Cooper-Keller Company.”

This Court is in accord with the holding of the Court of Civil Appeals with respect to the first item, which is, briefly, that Mr. Keller, during the period of the marital partnership, made the $21,000 advancement in question to the corporation, and that the marital partners were entitled to share it equally upon payment by the corporation. See the portions of the opinions of the Court of Civil Appeals dealing with that item on original hearing, 122 S.W.2d at page 272 and on rehearing, 122 S.W.2d at page 274, column 1.

We are in accord also with the court’s holding with respect to the third item sued for by Mrs. Keller.

That it was intended by the parties in their property settlement that Mr. Keller was to receive all of the stock owned by the community estate in the corporation (Cooper-Keller Oil Co.) is not questioned by Mrs. Keller. Nor is it questioned by her that there was an error in describing in the settlement contract the interest he was acquiring in the corporation, as 50 rather than 100 shares of the capital stock of the corporation, as appears from the following stipulation made by counsel for Mrs. Keller upon the trial of the present case: “It is stipulated and agreed that at the time of the execution of the settlement contract, both of the parties thought that fifty shares of stock in the Cooper-Keller Oil Company was all of the stock in the company owned, by the community, and that fifty shares represented one-half of the stock of the company.”

The settlement contract, which is incorporated in the divorce judgment, provides that, “if there are any errors in the description of the property (covered by the contract), or if the property is not fully or completely described, such errors may be corrected and such description supplemented.”

In view of what has been stated it is clear the trial court did not err in correcting and supplementing, in the present judgment, the description of the interest acquired by Mr. Keller, so as to describe correctly the interest both parties intended he should receive. The Court of Civil Appeals correctly affirmed the trial court’s act'ion in denying Mrs. Keller recovery of any portion of the capital stock of the corporation.

We are not in accord with the holding of the Court of Civil Appeals with respect to item No. 2, supra, referred to as an indebtedness by the corporation to Mr. Keller for salary for the year 1933. It was the assignment complaining of error on the part of the court in holding that the $20,000 item was not salary, upon which the writ was granted.

It should be borne in mind at the outset of the discussion of this holding that this is not a suit for division between the parties of the properties -which they owned at the time of making the contract in contemplation of divorce. The parties themselves did that by an agreement which they incorporated in the decree entered in the divorce action. Nor is it the purpose of the suit to have the court make a repartition of the properties on an equitable basis to be fixed by the court. Its purpose,, so far as the present item of $20,000 is concerned, is to determine whether this item, at the time the divorce was granted, constituted, when paid, a profit that passed to Mr. Keller as an incident to the ownership ,of the stock acquired by him, or constituted a, portion pf the community property of the Kellers. ,

This item, if salary, belonged to the marital partners in equal parts. The testimony that it was not apportioned between the parties'is uncontroverted, unless it passed'to Keller as an incident to ownership of the stock which was received by him in the settlement.

It is the view of the Court of Civil Appeals as expressed in its opinion, that while this $20,000 was set up on the books of the corporation as salary it was in fact not salary, but an “entry made * * * [in order] to lessen income tax.” See opinion on rehearing, 122 S.W.2d at page 275, 1st column.'

The uncontroverted testimony of the auditor of the corporation with regard to the corporation’s profits during 1933 is as follows:

“Q. I believe one of the things I asked you before lunch to get for us was the total net profits made .by the Cooper-Keller Oil Company during 1933. Do you have that? A. Yes, sir. •
“Q. What was that? A. As reported on the income tax, $13,983.21. . That is net, as it would appear on the statement. There would be $40,000.00 added to it for the two-salaries.
“Q. You deducted those salaries (Keller’s and Cooper’s) in making your income tax return? A. Yes, sir, they are allowable.
“Q. Before deducting those salaries, what was it? A. $53,983.21.”

He testified in this connection also that at the close of 1933 the company could not disburse the $53,000 representing profits for that year because they were tied up in receivables and oil stocks; that the $50,000-setup as salaries operated to reduce the corporation’s income tax payment and that the company was unable to pay the salaries until near the end of 1934.

Mr. Keller himself testified that when he filed his income tax return showing his income for the year 1933 he showed it as community income. In response to an inquiry as to what his salary was for the year 1933 he stated it was $20,000, and that it was arrived at as follows:

“Q. Mr. Keller, your salary for the year 1933, what wás that, will you tell us, please ? A. $20,000.00.
“Defendant in error then testified as to the manner in which this salary was arrived at, as follows:
“Q. At the end of the year you would balance your books, find out how much profit you had made and split that p££)fit- between you and Mr. Cooper? A. Yes, sir.
“Q. And set that up on the books as your salary for the preceding year? A. Yes.
“Q. Sometimes you would draw that in cash, sometimes you didn’t think the company’s condition permitted the withdrawal immediately and you would set it up as a liability of the company? A. We would permit it to remain in the company and would not take it out at all.
. “Q. You would set it up as a liability to you of the company in that amount, that is the way you did ? A. That is the way the bookkeeper ran it.”

- It is immaterial that the salary setup did not “come in,” or was not paid, until 19341 It was- earned in 1933, and was treated as salary by all of the parties at interest. Keller himself treated it as such in his income tax report for that year, and by calling upon Mrs. Keller to pay a portion of the income tax upon it as a part of the community property in which they were jointly interested.

It is immaterial, in determining whether the $20,000 was salary, whether Keller concealed from Mrs. Keller the setup on the books of the company, or that it had not been paid at the time of the settlement. Sec in this connection the following cases on a somewhat analogous point: Creamer v. Briscoe, 101 Tex. 490, 109 S.W. 911, 17 L.R.A.,N.S., 154, 130 Am.St.Rep. 869; Marlin v. Kosmyroski, Tex.Civ.App., 27 S.W. 1042.

It is urged on his behalf that under the trial court’s findings the community owned no claim for salary at the time of the divorce. It is undisputed that the item was not paid by the corporation until a few days after the divorce was granted. The trial court finding relied upon by Keller reads in part: “It is undisputed that the two men (Keller and Cooper) owning this business and due to its speculative and personal nature, pursued a peculiar course. No current salaries were drawn during a current year. At the end of the year, if the company had made a profit, they, in effect, split the pot. In order to lessen the income tax payments, a part of this profit was set up on the books as profit, and a part was set up under the heading of salary. Thus the so-called salary for 1933 was not determined upon or set up until the end of that year. Even then it was not paid for the reason that the company did not have the cash to pay it. It depended upon the further effort and good fortune of the co-owners to make good this paper salary.”

The fact remains, however, that when “this paper salary” was made good (paid) it was salary and not something else that was made good.

Regardless of the fact that the two owners of the corporation did not know at the time the salary amounts were set up on the books, how much, if any, their salaries would be for the year in which they were set up, the payment, when subsequently made, constituted payment of the salaries set up. The payments made by the corporation were not dividends, or profits, on the stock, as appears from the manner in which the matter was handled. When dividends are declared the corporation becomes indebted to the stockholders for the amounts of their respective shares, and are not subject to change merely at the choice of a stockholder. Yeaman v. Galveston City Company, 106 Tex. 389, 167 S.W. 710, Ann. Cas.1917E, 191; Cavitt v. Amsler, Tex.Civ.App., 242 S.W. 246; 11 Fletcher Cyc. of Corporation, Sec. 5222.

Whether the salaries were drawn during the current year is immaterial. When paid they were paid for that year and were paid as salaries. This appears from Keller’s own statement. He testified in response to an inquiry as to whether at the time the divorce was granted (December, 1933) there was any way to say how much salary he was going to earn, that there was not; that according to his “custom” he waited until the end of the year and that if the company had any profit he “declared most of it due as salary in order to escape the income tax.” ' (Italics ours.) He drew no other salary for that year.

The parties at interest, including Keller, treated the.amounts received as salary, according to the undisputed testimony. He testified in this connection that he got his “so-called” 1932 salary in 1933; that in the spring of 1934 he transmitted to Mrs. Keller a community return; that it showed the amount of his “salary” that had been set up for the year 1933 ($20,000), and that he received that “salary” sometime in 1934.

Regardless of whether the corporation could have elected to treat the item in question as dividends on the stock, it did not do so; nor could Keller lawfully waive his' claim to salary already set up and by his mere ipse dixit convert it into dividends, or some form of profit incident to stock ownership, and thereby convert his salary, which was community property, into his separate property.

It is apparent from what has been stated that the Court of Civil Appeals erred in holding that the $20,000 was not Keller’s salary for 1933, and therefore an undivided item of community property, and in not decreeing one-half of that amount to Mrs. Keller.

The judgment of the Court of Civil Appeals as to this item is reversed, and judgment is here rendered in accord with this opinion. In other respects its judgment is affirmed.

Opinion adopted by the Supreme Court.


text:
    TRADERS & GENERAL INS. CO. v. JENKINS.
    No. 1830—7527.
    Commission of Appeals of Texas, Section B.
    June 19, 1940.
    Simpson, Dorenfield & Fullingim, of Amarillo, and Lightfoot, Robertson, Gano & Johnston, of Fort Worth, for plaintiff in error.
    James O. Cade, of Amarillo, for defendant in error.
   TAYLOR, Commissioner.

The following are the material statements of the certificate certifying, in a workmen’s compensation case, the three questions set out at the conclusion of the certificate

“The defendant in error, W. B. Jenkins,, filed the suit in the district court of Potter County as an appeal from an award of the Industrial Accident Board. The case was submitted to a jury upon special issues and upon their findings to the effect that defendant in error was totally and permanently incapacitated by the injuries received * * *, the court rendered judgment against plaintiff in error * * *.
“In submitting the case to the jury upon special issues the court made use of the general form which has come to be almost universally employed in framing the special issues, in substance, viz: ‘do you find: from the preponderance of the evidence/' and after completing the special 'issue, instructing the jury to answer ‘Yes’ or ‘No.’'
“The assignments of error complain of a number of special issues so framed, asserting that the form used placed the burden of proof, both as to an affirmative and a negative answer, upon the parties plaintiff and defendant respectively. Special issue No. 2-a furnishes an example of the form of special issues used throughout the charge. It is as follows: ‘Do you find, from a preponderance of the evidence, that such injury, if any, sustained by the plaintiff on or about May 31, 1937, rendered the plaintiff totally incapacitated for work? Answer Yes or No.’
“In the preceding portion of the charge, the court instructed the jury as follows: ‘By the expression “preponderance of the evidence” is meant the greater degree and weight of credible testimony before you.’
⅜ * * ⅜ ⅜
“Since the decision by the Court of Civil Appeals at Waco in the case of Psimenos v. Huntley, 47 S.W. (2d) 622, a number of decisions have been handed down by the Courts of Civil Appeals in which it is strongly indicated, if not, in fact, held outright, that any special issue in which it is required that the jury answer ‘from a preponderance of the evidence’ and at the conclusion of which the jury is required to answer ‘Yes’ or ‘No’, or the form of théir answer is otherwise .prescribed in an alternative manner, constitutes the placing of the burden of proof 'upon both parties; that is, upon the plaintiff to establish the affirmative, and upon the defendant to establish the negative, of the issue submitted. McClelland v. Mounger [Tex.Civ.App.], 107 S.W. (2d) 901; Fidelity & Casualty Co. v. Van Arsdale [Tex.Civ.App.], 108 S.W. (2d) 550; Federal Underwriters Exchange v. Rigsby [Tex.Civ.App.], 114 S.W. (2d) 354.
⅜ ⅜ ⅜ ⅜ ⅜
“Since the members of this court do not agree as to whether or not the special issue No. 2-a involved in the instant case possesses the same vice as was revealed in the case of Psimenos v. Huntley, supra, we deem it advisable to submit to your Honors the following questions:
“1st.
“In submitting special issue No. 2-a in the form quoted above, did the trial court place the burden upon the plaintiff in error (defendant below) of proving the negative of the question asked?
“2nd.
“Did the form of the special issue No. 2-a adopted by the trial court definitely place the burden of proof upon the defendant in error (plaintiff below) of establishing the affirmative of the question asked?
“3rd.
“Did the submission of special issue No. 2-a in the form adopted by the trial court have the effect of confusing the matter of the burden of proof to the extent that it was erroneous?”

The second question certified will be answered first.

A reading of the question asked in submitting the issue, together with the only answer that could be made under the instruction, indicating that plaintiff was totally incapacitated, discloses that the burden of proving that fact was definitely placed upon him. The second question is answered “Yes”. Federal Surety Co. v. Smith, Tex.Com.App., 41 S.W.2d 210, 214.

In the case cited the form of the issue involved, reading “was or was not the plaintiff * * * totally disabled,” together with the preceding portion of the charge quoted above, does not place the burden upon plaintiff. The burden is not thereby placed upon plaintiff any more than upon defendant. Nor -does the instruction to answer “yes” or “no” place the burden definitely upon plaintiff. It is stated in the opinion that the use of the words “was or was not” in the question, followed by the instruction to answer “yes” or “no”, was confusing, and that the question could not be categorically so answered and leave the meaning of the answer “free of all uncertainty.” The form of submission was therefore objectionable, but the cause was not reversed upon that ground.

The case was reversed, however, upon another ground; and in view of another trial and the frequency with which the court was being called upon “to determine the correctness of the form of special issues,” the suggestion was made that the question upon ,each issue be so framed as to place the burden, and a form of question was framed in the opinion to meet that suggestion. It reads: “ ‘Do you find from the preponderance of the evidence that’ (following with the question to be determined).” In other words it was suggested that every issue be so framed as to itself place the burden of proof.

In the Huntley case, which was decided in the light of the holdings and suggestion made in the Federal Surety Company case, the form of submission involved reads [47 S.W.2d 623] : “Was the defendant * * * driving his car at a speed in excess of 25 miles per hour? Answer ‘yes’ or ‘no’ from a preponderance of the testimony.”

The form of the question placed the burden nowhere. The burden of proving the fact inquired about was upon plaintiff, and the result of the instruction to answer “from a preponderance of the testimony”, together with a “yes” answer, so placed the burden. The burden to prove the negative of the fact inquired about did not. rest upon defendant, however, but the result of the instruction to answer “from a. preponderance of the testimony,” taken m. connection with a “no” answer, improperly placed the burden upon defendant.- For, this reason the form of submission in' the Huntley, case was erroneous.

Chief Justice Gallagher correctly concluded that defendant had a right “to have either a specific instruction placing upon appellee [plaintiff] the burden of proving the affirmative of such question, or to have such question so framed that the jury zvould necessarily understand that the same should he answered affirmatively only in event the testimony preponderated in favor of. such answer, and, absent such preponderance, in the negative.” (Italics ours.)

, The Chief Justice was careful to point out in the opinion that in the form of submission suggested in the Federal Surety Company case, supra, “each separate question is so framed as to require in terms that an affirmative answer thereto shall be based on a preponderance of the testimony.” It was also pointed out that in the suggested submission, “if the testimony does not preponderate in favor of an affirmative answer, a negative anszver would follow as a necessary consequence.”

It appears from what has been stated that the form of submission used by the trial court in the present case is not only not condemned by the holding in the Huntley cáse, but that it also approved the suggested submission as meeting the essential requirement with respect to placing the burden of proof on- plaintiff.

The preliminary statement in the charge defining “preponderance of the evidence”, does not place the burden of proof upon either party.

Justice Critz in Texas Employers’ Ins. Ass’n v. Lemons, 125 Tex. 373, 83 S.W.2d 658, 659, approved the holdings in both the Huntley and Federal Surety Company cases upon this point, pointing out specifically that the form of question under consideration simply asks the jury whether “you find from the evidence”?; and that it “in no manner tells the jury that a ‘yes’ answer, requires such preponderance.” The reasoning of the opinion in the Huntley case was adopted, and in this connection attention was called to the fact that “this court has repeatedly indicated that the preferable way to dispose of the question of burden of proof on special issues is to construct each issue or question so as to indicate its own burden of proof.”

We answer the second question that the form of special issue No. 2-a, supra, definitely placed the burden of proof upon plaintiff, Federal Surety Co. v. Smith, and Texas Employers’ Ins. Ass’n v. Lemons, both supra.

We answer the first question certified that the trial court, in submitting issue No. 2-a in the form stated, did not thereby place the burden upon the defendant of proving the negative of the question asked.

The form of the question itself requires a “yes” answer to be based upon a preponderance of the testimony; and, as stated in the Huntley case, “if the testimony does not preponderate in favor of an affirmative answer, a negative answer would follow as a necessary consequence.” While not the least objectionable way in which to submit the issue, it does not tell the jury, as does the form involved in the Huntley case, “that a negative answer thereto * * * must * * * be supported by a preponderance of the testimony.” In addition to the cases cited above, see Gulf, C. & S. F. R. Co. v. Giun, Tex.Com.App., 131 Tex. 548, 116 S.W.2d 693, 116 A.L.R. 795. See, also, in this connection Stevenson v. Wilson, Tex.Civ.App., 130 S.W.2d 317, writ refused. See, also, Fidelity Casualty Company of New York v. McLaughlin, Tex.Civ.App., 106 S.W.2d 815, affirmed, Tex.Sup., 135 S.W.2d 955, with blanket approval of the holdings of the Court of Civil Appeals, including, without discussion, its holding upon the question now under consideration. See, also, on this point, Southern Underwriters v. Jones, Tex.Civ.App., 137 S.W.2d 52, and Texas Fire & Casualty Underwriters v. Blair et al., 130 S.W.2d 409.

We answer the third question certified that the submission of special issue No. 2-a in the form adopted by the trial court did not have the effect of confusing the matter of burden of proof to the extent that it was erroneous. In addition to cases above cited, see Phoenix Refining Co. v. Tips, 125 Tex. 69, 81 S.W.2d 60; Gulf, C. & S. F. R. Co. v. Giun, Tex.Com.App., supra; also, Traders & General Ins. Co. v. Burns, Tex.Civ.App., 118 S.W.2d 391; Traders & General Ins. Co. v. Huntsman, Tex.Civ.App., 125 S.W.2d 431, and cases there cited upon this point. Travelers Ins. Co. v. Noble, Tex.Civ.App., 129 S.W.2d 778; Southern Underwriters v. Jones, supra.

In view of what has been stated, and the cases cited, it is unnecessary to discuss the Mounger, Van Arsdale and Rigs-by cases, supra. To the extent they are in conflict with the holdings herein approved they are overruled.

There is an increasing tendency upon the part of the courts not to reverse a case because a form of submission of an issue is subject to objection, unless, of course, the issue is objectionable to the extent it denies to one of the parties a valuable right. It may be added that by the suggestions made from time to time that one form of issue is less objectionable than another, or that one form is preferable to another, it is not meant to be implied that such form is exclusive, or that a prior suggested form is erroneous. See Federal Surety Co. v. Smith, supra; Southern Ice & Utilities Co. v. Richardson, 128 Tex. 82, 95 S.W.2d 956; Gulf, C. & S. F. Ry. Co. v. Giun, supra.

As stated by Chief Justice Gaines in Silliman v. Gano, 90 Tex. 637, 39 S.W. 559, 561, 40 S.W. 391: “* * * the rules of procedure in the courts should be so framed as to secure substantial justice, and any oversight of the court or of counsel, which, within certain limitations, is not calculated to operate to the prejudice of the parties, and has not so operated, should be disregarded.”

The measure of the discretion of a trial judge as to the form of issues used by him in ascertaining the essential facts of the case is limited - only to the extent indicated in the foregoing quotation.^ Wright v. Traders & General Ins. Co., 132 Tex. 172, 123 S.W.2d 314.

It is in the light of the principle stated in the above excerpt, applied to special issue forms, that the questions certified are •answered as above indicated.

Opinion adopted by the Supreme Court.