text:
    HENDRICKS v. KOPECKY et ux.
    No. 12788.
    Court of Civil Appeals of Texas. Dallas.
    Nov. 4, 1939.
    Rehearing Denied Dec. 2, 1939.
    Cedric G. Hamlin, of Dallas, for appellant.
    Eades & Eades, of Dallas, for appel-lees.
   YOUNG, Justice.

The suit in the lower court was by Ko-pecky and wife against appellant, in trespass to try title, to which Ida May Hendricks, as defendant, interposed statutory and other defenses — also a cross action for damages. In a jury trial, plaintiffs were given peremptory instruction for title and possession, the only fact question for the jury’s determination being rental value of the premises involved. Appellant’s brief, predicated upon some fifty-eight assignments of error, complained of various rulings and instructions of the trial court, which assignments, after the first twenty, are brought forward and treated as propositions. The house and lot in question, being separate property of Mrs. Kopecky,' has been continuously occupied by Ida May Hendricks since about October 4, 1930, by virtue of an agreement in writing (not acknowledged by any of the parties), which reads: “Subject to the conditions and provisions hereof, we, Leo Kopecky and wife, Victoria Kopecky, hereby lease unto Ida May Hendricks, a widow, for a period of five years from date hereof, the following described land and premises, to wit: All that certain lot, tract or parcel of land lying and being situated in the County of Dallas, State of Texas, and being part of Lots Nos. Five, Six and Seven (5, 6 & 7) of Cosby’s sub-division of 26 acres of land out of the Lagow Survey, and being the West twenty-seven (27) feet off of the Lot No. Five (5), and the East ten (10) feet off of the East Side of Lot No. Six (6), and 10x34 feet out of the Northeast corner of Lot No. Seven (7); said lot being 37x123 feet and described in deed of record in Vol. 1462, page 225, Deed Records of Dallas County, Texas, together with a four room cottage thereon situated, to be used for residence purposes only. The rental to be paid for said property and premises is the sum of Four Dollars ($4.00) per week, payable in advance on Saturday of each week during the continuance of this lease. If no default be made hereunder, we agree and hereby give the said Ida May Hendricks, the right and option to purchase the above described property and premises at the expiration of this lease for the price of Seven Hundred and Sixty Dollars ($760.00) to be evidenced by note of even date with deed; said note to be due and payable $4.00 per week on each Saturday until fully paid; same to be secured by vendor’s lien retáined in deed and also by deed of trust upon said property and to provide that a failure to pay any installment on said note shall at the option of the holder mature the same. The said Ida May Hendricks hereby agrees to rent and lease the above described property and premises on the terms above indicated and to pay said rental as above provided and to further take good care of said property and premises and at her own cost keep the same in good repair and condition and to pay all taxes thereon as the same accrue and to pay all fire insurance premiums upon the improvements on said property. If default be made in the payment of any installment of rent when due hereon or in the performance of the other agreements herein then at the option of Lessors this lease shall terminate and the option to purchase said property shall be forfeited and this contract shall become null and void and of no further force or effect. Witness our hands in duplicate, this the 4th day of October, A. D. 1930. (Signed) Victoria Kopecky (Signed) Leo Kopecky Owners and Lessors.' (Signed) Ida May Hendricks Lessee.”

Following the statutory action of the Kopeckys, they plead the above instrument, denominating same a five-year lease which had terminated long prior to filing suit, alleging defendant had thereafter continued to use and occupy the property; that during the five-year period, defendant became obligated to pay $1,040 as rental, but had paid only $757.40; that defendant had failed to pay items of taxes and fire insurance as agreed; that by holding over after expiration of the alleged lease, defendant became obligated to pay a reasonable rental, which was $4 per week up to the institution of suit; that defendant had made succeeding payments to plaintiffs in the sum of $315.60, leaving a balance' of $120.40 as due under the original contract, and still owing sums for subsequent occupancy; praying for damages in such amounts; also for taxes and insurance, additional to title and possession. Sureties on defendant’s replevy bond, following sequestration, were made parties and judgment sought against them to the extent of their statutory liability.

Defendant in special pleading alleged a tender of all sums due, in response to the trespass to try title action, and that same was repugnant to plaintiffs’ declaration on the above contract, requiring an election. Further, that the 1930 agreement was understood from the beginning, by all parties thereto, to be a sale, and plaintiffs, by their acts and dealings under the contract, were estopped from asserting it to be a lease. Defendant demanded a right to perform thereunder, and for a. deed according to the contract. Her cross action reiterated earlier allegations, plead a- written statement of plaintiffs’, dated November 1st, 1937, in estoppel of their suit and in support of her contention that she had purchased the property in 1930. Defendant alleged that she had continuously exercised the option to buy, the sums already paid being in compliance therewith; that if the 1930 writing be void as a contract of sale, she should recover back all moneys paid by reason of her good faith, and defendants’ repeated misrepresentations and fraudulent conduct; pleading a total loss of benefits, for money judgment, etc.

The case was pending in the 68th District Court at the time it was called in the court of the Presiding Judge (the 44th) for trial. It was sent to the 101st District Court and there tried, the final judgment of Hon. Claude McCallum (May 13, 1938), after peremptory instructions and jury verdict, being the subject of this appeal. The docket sheet on the case has the notation “May 12, 1938, transferred to the 101st District Court, Vol. 44, page 475”. The said minute book, however, showed the transfer as of May 16, which was subsequent to the trial. Appellant urges that the lower court, even under the liberal provisions of Art. 2092 R.S., Vernon’s Ann.Civ.St. art. 2092, was without jurisdiction to try the cause when not sitting for the court where the same was pending and without an antecedent transfer. By certiorari, however, appel-lees were permitted to perfect the transcript to include a nunc pro tunc order entered on the minutes of the 68th District Court, showing the true date of transfer to be May 12. We think this correction eliminated irregularity, if indeed there was any, in the assumption of jurisdiction by the 101st District Court. At this point, there naturally arises the query: Did not the trial court have ample jurisdiction to hear the cause in the absence of such curative order? Judge Smedley, in De Zavala v. Scanlan, Tex.Com.App., 65 S.W.2d 489, 494, where the same provisions of Art. 2092 were under construction, observed that the statute, sweeping in terms, was enacted for the purpose of expediting the trial of cases in counties having two or more civil district courts, and made the judge of each district court, in effect, the judge of any other district court in the particular county; and, referring to Harris County, said: “Judge Boyd therefore, at the time he tried the case, had the authority to transfer the case from the district court for the Eleventh district to his court, and he also had the authority without transferring the case or without its being transferred to his court to take control of it and try it.”

No inconsistency resulted, nor were plaintiffs put to an election by reason of declaring upon the 1930 agreement following their statutory action. The same was necessarily plead in connection with the whole of the transactions between the parties and as a basis for establishing the value of rents or damages as claimed. Art. 7366, Sub. 6. The contract in question, if a lease as contended by plaintiffs, and having terminated, was a proper foundation for plaintiffs' case in trespass to try title. Texas Rural Communities v. Avary, Tex.Civ.App., Amarillo, 113 S.W.2d 597.

Appellant complains of error in the sustaining of many special exceptions by the court, and the giving of peremptory instructions, in view of her defenses and cross action. Even in the absence of any exceptions to defendant’s entire pleading, still, under the testimony, which is generally undisputed, the result would have been the same. In other words, the jury received a proper charge on the facts and the law, and plaintiffs’ judgment pursuant thereto must be upheld.

It is appellant’s principal contention that' the 1930 written agreement should be construed as a contract of sale, because of representations made to her before signing and the subsequent acts and conduct of plaintiffs in dealing thereunder when collecting weekly payments. The instrument is plainly a five-year lease, with option to purchase at the expiration thereof, which was October, 1935, Defendant was requested to vacate the property in November, 1937; she in turn demanding a deed and receiving from plaintiffs the following statement:

“Victoria Kopecky 4815 Collins Ave
City Int. Date County
10.32 5.49 1931 4.92
10.33 4.45 1932 4.50
8.51 3.05 1933 4.21
8.51 2.22 1934 3.82
11.69 1.82 1935 3.45
11.69 .91 1936 3.42
No. 1937 3.10 11.69
¡17.98 Total 27.42 72.74
Taxes and interest 118.14
Should be paid 1468.00
Is paid 1063.05
Behind with payments 404.95 Purchase price 1800.00
Paid in 1063.05
Total 736.95
Taxes and interest 118.14
Fire insurance 28.00
Total balance 883.09”

At the time of the foregoing statement, the status of defendant was no more than a tenant holding over, following the termination of her written lease, the purchase option of which had long since expired; and, at the latter date, any further offer to sell was obviously subject to new terms and conditions, such as were reflected in the above paper. On December 1, 1937, plaintiffs tendered defendant a deed to the realty for $840, payable $4 cash and $4 in weekly installments. On the basis of the original $1,800 sales price, defendant was thus given credit for all rents collected — $1,072.90—the consideration in said deed including $113.37 of taxes and insurance, theretofore paid by plaintiffs, for which defendant was obligated under the 1930 lease. Defendant failed and refused to consummate the new deal, notwithstanding the terms thereof were substantially the same as those embraced in the expired contract and option. Defendant is, therefore, in no position to complain of the adverse judgment under review, despite her “paper tender” and offer to do equity.

Moreover, appellant could not require performance of the 1930 writing as a sales contract, for another reason: The realty in suit was the sole and separate property of Victoria Kopecky and defendant does not testify that she was misled into believing otherwise. Sufficient notice of ownership was visited upon her by the deed records alone. The instrument under which defendant claims is void as a contract of sale for want of acknowledgment; Art. 4614, Vernon’s Ann.Civ.St. art. 4614. Defendant knew of such defect at all times and is, hence, not entitled to specific performance, or damages; Green v. Hopper, Tex.Civ.App., 278 S.W. 286; Saulsbury v. Anderson, Tex.Civ.App., 39 S.W.2d 142.

What has been said covers the decisive points of defendant’s appeal, the remaining assignments being but ancillary thereto. However, all assignments have been fully considered and are each overruled. We affirm the judgment of the trial court.

Affirmed.


source: Caselaw Access Project

author: PER CURIAM.

license: Public Domain

text:
    MALONE v. RAINEY et al.
    Motion No. 14184.
    Supreme Court of Texas.
    Sept. 25, 1939.
    Eckhardt & Fath, of Austin, for relator.
    Gerald C. Mann, Atty. Gen., for respondent.
   PER CURIAM.

This is a motion to file petition for mandamus. The petition accompanies the motion. The petition discloses that James L. Malone, as relator, seeks to have this Court, as a court of original jurisdiction, issue a mandamus against the President, the Auditor, and the Board of Regents of the University of Texas compelling them to permit relator to enter the University as a student for the semester beginning September 21, 1939, without paying a fee of $1 known as the “Union Fee.” It is alleged that such fee is collected for the benefit of Texas Union, and Texas Union is also named as one of the respondents. It is also alleged that the Act purporting to authorize the collection of such fee is illegal and unconstitutional.

The Court can only exercise original mandamus jurisdiction where authorized by law. Article 1735, R.C.S.1925, clothes this Court with original mandamus jurisdiction as regards “any of the officers of the executive departments of the government of this State. * * *” None of the above-described respondents are officers of this State within the meaning of the above-named Article. 28 Tex.Jur., p. 592 et seq., secs. 44, 45, 46 and authorities there cited.

Since Article 1735, supra, does not clothe this Court with original jurisdiction of this proceeding, and since we have found no other law, constitutional or statutory, that does so, the motion to file the above-mentioned petition is overruled.


author: SHARP, Justice.

text:
    STATE v. WYNNE et al.
    No. 7404.
    Supreme Court of Texas.
    Dec. 6, 1939.

      Wm. McCraw, Former Atty. Gen., Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., Asst. Atty. Gen., for plaintiff in error.
    A. M. Herman and Samuels, Foster, Brown & McGee, all of Fort Worth, for defendant in error Lewis.
    Massingill & Belew, Ploma S. Hill, and Burton B. Paddock, all of Fort Worth, for defendant in error Harrison.
    Julius H. Runge, of Dallas, and George M. Conner, of Fort Worth, for Milam, trustee.
    Wynne & Wynne, of Dallas, for defendant in error Wynne.
    Clyde O. Eastus, U. S. Atty., and James L. Backstrom, Sp. Atty., both of Dallas, Robert Sansom and Frank B. Potter, Asst. U. S. Attys., both of Fort Worth, for the United States, intervener.
   SHARP, Justice.

This case presents the question of the priority of the payment of debts due holders of liens over the payment of taxes due the United States and the State of Texas, and also presents the question of the priority of the payment of taxes due the United States over those due the State of Texas, out of the same fund — under Section 3466 and section 3186 of the Revised Statutes of the United States, 31 U.S.C.A. § 191; 26 U.S.C.A. §§ 1560-1562, and under Article 7065a—7, Vernon’s Ann.Civ.St.

B. J. Wynne filed this suit on May 1, 1935, in the District Court of Van Zandt County, against the Star Refining & Producing Company, alleging a cause of action on a promissory note for the sum of $2,000, executed by the defendant, Star Refining & Producing Company, and for foreclosure of a deed of trust lien executed by the defendant to secure its certain bond issue, of which issue twenty Five Year First Mortgage 8% bonds of par value of $100 each were transferred and delivered to plaintiff by defendant as a pledge of collateral security on such note.

Plaintiff alleged that defendant was insolvent or threatened with insolvency, that its capital stock and surplus had been exhausted and depleted, and that it owed various sums of money to various individuals and had no cash assets with which to pay its debts, including certain Federal and State taxes, and upon these and similar allegations the appointment of a receiver was sought. The trial court appointed, ex parte, a receiver of and for the assets and properties of the defendant, and the receiver duly qualified and took possession of such properties. The defendant entered its appearance, and waived further notice of hearing on the application for receivership, adopting the allegations of plaintiff’s bill, and consenting to the appointment of a receiver of its properties.

Numerous claims were filed with the receiver, and many of such claimants filed formal interventions in the cause. The United States of America intervened for certain gasoline, capital stock, and income taxes, accruing from September, 1932, to June 30, 1935, with penalties and interest thereon, for the sum of $15,125.93, and asserted a right to prior and preferential payment from the proceeds of the receivership estate under the terms of Section 3466, Revised Statutes U.S., Section 191, Title 31, U.S.C.A. The United States also asserted a lien for such taxes, penalties, and interest, under the terms of Section 3186, Revised Statutes U.S., 26 U.S.C.A. §§ 1560-1562, paramount and superior to other liens, particularly that asserted by the State of Texas.

For convenience and brevity, we will refer to the United States of America as the United States, and to the State of Texas as the State.

The State intervened for motor fuel taxes, penalties, and interest accruing against defendant as distributor of motor fuel during the years 1932, 1933, 1934, and 1935, in the total amount of $25,068.60, and asserted, to secure such taxes, penalties and interest, a statutory tax lien under Article 7065 — 7, Vernon’s Ann.Civ.St., prior and paramount to all other liens.

A. M. Lockett & Company, Ltd., intervened for the balance due on a chattel mortgage note, executed on March 12, 1932, in its favor by defendant, and secured by a chattel mortgage lien on certain described machinery and equipment sold by said intervenor to defendant on said date. This intervenor alleged, as additional security on such note for purchase money, the delivery and transfer by defendant, under pledge or collateral agreement, of certain eighteen bonds of the par value of $100 each, secured by deed of trust of date June 1, 1928, upon certain refining property of the defendant, which deed of trust and bond issue were alleged to be. the third successive renewal and extension of an original bond issue and deed of trust made October 7, 1921. Foreclosure of its lien upon such bonds and its deed of trust lien was sought in addition to its chattel mortgage lien.

James Harrison intervened for the balance due on a certain promissory note in the principal sum of $14,000, executed by defendant in his favor on or about June 1, 1928, and secured by a chattel mortgage of even date upon certain nineteen tank cars, the property of defendant. Certain of such cars having been released from such chattel mortgage, foreclosure was sought on nine of said cars. It was alleged in the alternative by this intervenor that prior to the institution of this suit, and after the maturity and default of such note., it was agreed between him and defendant that the remaining nine tank cars would be delivered to and accepted by him in satisfaction of his debt; but such cars were left on the properties and in the possession of defendant, under agreement it would deliver same to intervenor upon demand, or to such purchaser as defendant might procure, subject to the approval of such intervenor.

Numerous interventions were filed by the holders of certain bonds of defendant, secured by a deed of trust upon certain described properties of defendant, praying that such lien be declared first and superior against such property, for foreclosure of same, and for payment ratably of such bond holders from the proceeds. The names of the bond holders and the amounts claimed by each are more fully shown in paragraph 16 of the court’s judgment.

The case was tried before the court without a jury. The trial court in its final judgment held:

(a) That A. M. Lockett & Company, Ltd., was entitled to judgment against the defendant and receiver for the amount sued for, with foreclosure of both its chattel mortgage lien and its pledgee’s lien upon the described bonds, provided the proceeds from the mortgaged property were insufficient.

(b) That as to the property covered by the chattel mortgage held by intervenor James Harrison, title to such property passed to and vested in such intervenor prior to receivership, under agreement to that effect, and the receiver and other parties had no right or interest in same.

(c) That the intervening bondholders named in paragraph 16 of the court’s judgment had a. first and prior deed of trust lien upon the property described in the deed of trust of date June 1, 1933, in renewal and extension of prior deeds of trust, and directed the sale of such property and the application of the proceeds to the payment ratably of such bondholders, after the payment of court costs. Certain three intervening bondholders named in paragraph 18 of the court’s judgment were not given such priority, but were subordinated to the liens of the State and the United States.

(d) The trial court also held that such lien interest given by Article 7065a — 7 was inferior to the chattel mortgage liens of A. M. Lockett & Company, Ltd., and James Harrison and the deed of trust liens of certain intervening bondholders. The trial court, further held that such statutory lien was inferior to both the right of preferential payment and the right of lien asserted by the United States.

(e) As between the State and the United States, the court held that the lien of the United States was prior to the claim of the State against the property of the defendant — subject, of course, to the other priorities therein adjudicated, and -that the United States was entitled to full payment of its claim before any sum of money should be paid to the State on its claim. Judgment was rendered for the United States and the State in the amounts sued for.

(f) The trial court gave judgment in favor of certain unsecured creditors, who-either filed claims with the receiver or intervened, the names and amounts more particularly appearing 'in paragraph 26 of the trial court’s judgment. The State alone-appealed the case to the Court of Civil Appeals, and the judgment of the trial court was affirmed by that court.

The Court of Civil Appeals upheld the judgment of the trial court, and also construed, article 7065a — 7, supra, and held that such statute was invalid in the - following respects: (1) That the motor fuel tax and the lien securing same-on the land on which the refinery is located and the tax and lien on the machinery and other personalty were essentially an ad valorem tax, and such lien must fail, since it applies to real estate described in the decree as well as assets of a personal character, without any separate assessment in the matter of fixing liens thereon, as required by statute and Article 8, Section 15, of the Constitution of Texas, Vernon’s Ann.St.; (2) that the levy of the occupation tax in question on the machinery and other equipment on-the premises of defendant, in addition to ad valorem taxes due thereon under general laws, is violative of the provisions of Article 8, Section 9, Constitution of Texas, fixing the maximum of taxes that may be levied on property in this State; and also constitutes a violation of Article 8, Section 1, Constitution of Texas, requiring taxes to be equal and uniform.

The opinion of the Court of Civil Appeals embodies the judgment of the trial court, and we refer to same for a more detailed statement of the case and the full judgment of the trial court. 113 S.W.2d 325.

The State contends that the Court of Civil Appeals erred in holding that the lien prescribed in article 7065a — 7 on land on which the refinery and other property is located was taxable as realty, that the tax thereon was essentially an ad valorem tax, and that the lien provided for in said Article in favor of the State could not be enforced, as is attempted to be done in this suit.

Section 7 of the act, as amended, Article 7065a — 7, Vernon’s Ann.Civ.St., in part reads as follows: “All taxes, fines, penalties and interest due by any distributor to the State shall be a preferred lien, first and prior to any and all other existing liens, contract or statutory, legal or equitable, and regardless of the time such liens originated, upon all the property of any distributor, devoted to or used in his business as a distributor, which property shall include refinery, blending plants, storage tanks, warehouses, office buildings and equipment, tank trucks or other motor vehicles, stocks on hand of every kind and character whatsoever used or usable in such business, including crude oil or other materials for the manufacture, refining, blending or compounding of motor fuels and the refined products therefrom and the proceeds from the sale of such materials and refined products, and any other property of every kind and character whatsoever and wherever situated devoted to such use, and each tract of land on which such refinery, blending plant, tanks or other property is located, or which is used in carrying on such business.”

Article 7065a — 2(a) levies the following occupation or excise taxes : “There is hereby imposed an occupation or excise tax of four (4) cents on each gallon of motor fuel or fractional part thereof. The said tax shall accrue and be paid as hereinafter provided upon the first sale in Texas.”

Article 7065a — 1(d) provides that the “ ‘First Sale’ shall mean and include the first sale, distribution or use in this State of motor fuel refined, blended, imported into, or in any other manner produced in, acquired, possessed or brought into this State.”

Article 7065a — 2(d) causes the excise or occupation tax levied by Article 7065a — 2(a) to accrue as follows: “Every distributor making first sale of motor fuel shall pay to the State of Texas an occupation or excise tax equal to four (4) cents per gallon or fractional part thereof, so sold, distributed or used, and such tax shall be due and payable at the office of the Comptroller at Austin, Texas, on the 20th day of each month, the same to be based on such sales or use made during the calendar month next preceding.”

Article 7065a — 6(a) further provides: “Before any permit shall be issued and before engaging in the first sale of motor fuel in Texas, every distributor shall execute and file with the Comptroller a good and sufficient surety bond, which shall run concurrently with the permit required of a distributor to be obtained. The said bond shall be signed by said distributor and a good and sufficient surety company or companies authorized to do business in this State to be approved by the Comptroller, in an amount not less than One Thousand ($1,000.00) Dollars nor more than Twenty-five Thousand ($25,000.00) Dollars, payable to the State of Texas, and conditioned upon the full, complete and faithful performance of all the conditions and requirements of the law taxing motor fuel, on a form to be prescribed by the Comptroller with the approval of the Attorney General, expressly providing for the performance of said obligation and the payment of all taxes, costs, penalties and interest at Austin, Texas.”

By Section 6(d) of the Act, Vernon’s Ann.Civ.St. art. 7065a — 6(d), any distributor is given his option of depositing in the Suspense Account of the State Treasury money or certain approved securities in the amount of bond that might be required and in lieu thereof.

When Articles 7065a — 6(a), 7065a — 7, supra, are considered together, it clearly appears that the Legislature had in mind that the bond or deposit required by Section 6(a) had for its purpose only partial security for the payment of the tax, because it is undisputed that the tax due for the taxing period far exceeds the amount of the bond or deposit required; that Section 7, as amended, is to be construed as being an additional requirement, and such Act fixes “a preferred lien * * * upon all of the property of any distributor, devoted to or used in his business as a distributor,” and specifically describes the property covered by a lien therein as including refineries, blending plants, storage tanks, warehouses, office buildings, and equipment, etc., devoted to or used in such business.

The rule is generally accepted in this State that all property rights acquired and held, and all contracts made, are subject to the authority of the State to levy its taxes and collect its revenues for the support of the government. State for Use of Delta County Levee Imp. Dist No. 1 v. Bank of Mineral Wells, Tex.Civ.App., 251 S.W. 1107, writ refused; Preston v. Anderson County Levee Imp. Dist. No. 2, Tex.Civ.App., 261 S.W. 1077, writ refused; 9 Tex.Jur., pp. 549, 550, § 114.

It is not always easy to draw an exact line of demarcation between an ad valorem tax and an occupation or excise tax. In Cooley on Taxation, 4th Ed., vol. 1, p. 131, § 45, the distinction between a property tax and an excise tax is stated as follows: “Generally the answer to the question whether a particular tax is a property tax or an excise tax is so apparent that there ' is no room for argument; but in many phases the question has been the subject of much litigation, especially in regard to whether -a tax on a corporation is an excise tax or a property tax. If the tax is directly on property itself, the tax is a property tax; but a tax is an excise tax rather than a property tax where it is not a tax on property as such, but upon certain kinds of property, having reference to their origin and their intended use. Another thing to be noted, it has been said, is that the obligation to pay an excise tax is based upon the voluntary action of the person taxed in performing the act, enjoying the privilege, or engaging in the occupation which is the subject of the excise, and the element of absolute and unavoidable demand, as in the case of a property tax, is lacking.”

As said in 103 A.L.R. at page 19: “One general test is suggested in Society for Savings v. Coite (1868) 6 Wall. (U. S.) 594, 18 L.Ed. 897, in effect as follows: An excise and a property tax, when the two approach each other, ordinarily may be distinguished by the respective methods adopted of laying them and fixing their amounts. If a tax is imposed directly by the legislature without assessment, and its sum is measured by the amount of business done or the extent to which the conferred privileges have been enjoyed or exercised by the taxpayer, irrespective of the nature or value of the taxpayer’s assets, it is regarded as an excise; but if the tax is computed upon a valuation of property, and assessed by assessors either where it is situated or at the owner’s domicile, although privileges may be included in the valuation, it is considered a property tax.”

The case of Grayburg Oil Company v. State, Tex.Com.App., 3 S.W.2d 427, 428, involved the construction of the Motor Fuel Tax Law then upon the statute books, and in discussing the nature of such tax it was said: “The tax in question has two important characteristics, (a) It is an occupational excise. * * * That a state may thus measure an occupation tax, even when interstate transactions are taken into account, has full recognition in G., H. & S. A. Ry. Co. v. Texas [210 U.S. 217, 28 S.Ct. 638, 52 L.Ed. 1031], supra. See, for analogies, Plummer v. Coler, 178 U.S. 115, 20 S.Ct. 829, 44 L.Ed. 998; Hamilton Mfg. Co. v. Massachusetts, 6 Wall. 632, 18 L.Ed. 904; Home Ins. Co. v. New York, 134 U.S. 594, 10 S.Ct. 593, 33 L.Ed. 1025; Society for Savings v. Coite, 6 Wall. 594, 18 L.Ed. 897; Provident [Inst. for] Sav. v. Massachusetts, 6 Wall. 611, 18 L.Ed. 907.”

The case of Producers’ Oil Co. et al. v. Stephens et al., 44 Tex.Civ.App. 327, 99 S.W. 157, 158, writ of error denied, involved the construction of the provisions of Chapter 148, page 358, of the Acts of the 29th. Legislature, known as the “Kennedy Bill.” It was contended in that case that the provisions of the Act involved violated certain provisions of the State Constitution, as is done in this case, and in answer to such contentions the court in the course of its opinion said: “Appellants contend that said section violates the state Constitution as to rate of taxation, equality and uniformity of the tax, assessment of property in the county where situated, and as to equalization of values. This contention is based upon the idea that the tax imposed is an ad valorem tax. In our opinion the tax is not upon the gross products of the oil wells, but upon the occupation of owning, controlling, or managing oil wells producing oil; and the amount of the tax is measured by a percentage of the market value of the gross products. State v. [Galveston, H. & S. A.] Railway Co. [100 Tex. 153], 97 S.W. 71, 16 Tex.Ct.Rep. 909. Nor does said section violate any provision of the United States Constitution, as the Legislature has the authority to single out and make classifications for the purpose of levying occupation taxes; and all that is required in reference to equality and uniformity is that the taxes imposed be equal and uniform upon the same class of subjects, and the section complained of complies with this requirement, as it operates on all oil producers alike. State v. [Galveston, H. & S. A.] Railway Co., supra. And, although this law imposes an occupation tax upon the oil producers who pay an ad valorem tax upon the real estate producing oil, it does not constitute double taxation, not permitted by the law, as it is within the authority of the Legislature to impose an ad valorem tax on the oil-producing property of appellants, and an occupation tax for the use of this property in the production of oil.”

The Act before us specifically provides that, “There is hereby imposed an occupation or excise tax of four (4) cents on each gallon of motor fuel or fractional part thereof,” and then describes how such tax shall accrue and be paid. It clearly appears from this Act that the -tax is imposed directly by the Legislature without assessment, and the amount of such tax is measured by the amount of business done or to which the conferred privileges have been enjoyed, irrespective of the nature or value of the taxpayer’s assets. An ad valorem tax is levied against property on its value, and “such tax does not impose any condition, nor does it place any restriction upon the use of the property taxed.”

All parties engaged in such business by virtue of this law are taxed alike. The amount of tax imposed is based on the number of gallons of motor oil used or sold. In other words, such tax is imposed in addition to the ad valorem tax levied and assessed against property, and is levied and assessed on property belonging to persons pursuing the occupation of a distributor under the provisions of Article 7065a — 7 of this law, and such tax does not violate Section 1, or Section 2, or Section 9, or Section 15, of Article 8, of the Constitution of the State of Texas, Vernon’s Ann.St. Texas Co. v. Stephens, 100 Tex. 628, 103 S.W. 481; State v. Galveston, H. & S. A. Railway Co., 100 Tex. 153, 97 S.W. 71; Producers’ Oil Co. v. Stephens, 44 Tex.Civ.App. 327, 99 S.W. 157, writ refused; Ex parte Walker, 121 Tex.Cr.R. 145, 52 S.W.2d 266; 40 Tex.Jur., pp. 58, 59, 60.

The foregoing contention is sustained.

The State further contends that the Court of Civil Appeals erred in holding that the liens and bonds executed by the Star Refining & Producing Company were superior to the claim or lien of the State fixed by Article 7065a — 7. This law has been amended several times by the Legislature. Below is set forth the history of such lien as fixed by the statute through its various amendments since it was originally enacted:

House Bill No. 6, Chapter 88, Acts Second Called Session, 41st Legislature, 1929 (Article 7065f, R.C.S.1925), effective July 15, 1929, created for the first time a preferred lien for motor fuel taxes, as follows : “All taxes, fines, penalties and interest due by any distributor to the State shall be a preferred lien upon all of the property of any distributor devoted to or used in his business as distributor, not exempt under the Constitution, * *

House Bill No. 536, Chapter 98, Acts Regular Session 42nd Legislature, 1931 (Article 7065f, R.C.S.1925), effective May 5, 1931, made no change in the provisions of the lien section.

House Bill No. 247, Chapter 44, Regular Session 43rd Legislature, 1933 (Article 7065, R.C.S.1925), effective March 21, 1933, amended the lien statute to read as follows : “All taxes, fines, penalties and interest due by any distributor to the State shall be a preferred lien, first and prior to any and all other existing liens, upon all of the property of any distributor, devoted to or used in his business as a distributor, which property shall include refinery, blending plants, storage tanks, warehouses, office buildings and equipment, tank trucks or other motor vehicles or any other property devoted to such use, and each tract of land on which such refinery, blending plant, tanks or other property is located, or which is used in carrying on such business.” Section 7.

Article 7065a — 7, the statute now in force, became effective May 11, 1935, and is quoted above.

Many courts hold that property used in a business may he subjected to a lien fot-an excise or occupation tax on the business carried on, although it is not owned by the person carrying on the business. This rule is clearly stated in 26 Ruling Case Law, p. 392, § 350, as follows: “An excise tax may be made a lien on the property in connection with which the act, privilege or occupation taxed is performed, enjoyed or carried on. Thus an inheritance tax may be made a lien on the property transferred although an inheritance is an excise on the privilege of transfer and not a property tax. Property used in a business may be constitutionally subjected to a lien for an excise on the business although it is not owned by the person carrying on the business. The owner is not only chargeable with a knowledge of the law in respect thereto, but he is presumed to know the business there carried on, and to have let the property with knowledge that it might become encumbered by a tax imposed- upon such business.”

The following authorities are cited to sustain this statement of the rule: Hodge v. Muscatine County, 196 U.S. 276, 25 S.Ct. 237, 49 L.Ed. 477, sustaining 121 Iowa 482, 96 N.W. 968, 67 L.R.A. 624, 100 Am.St.Rep. 304; State ex rel. Schwartz v. Ferris, 53 Ohio St. 314, 41 N.E. 579, 30 L.R.A. 218; Brown Shoe Co. v. Hunt, 103 Iowa 586, 72 N.W. 765, 39 L.R.A. 291, 64 Am.St.Rep. 198. See, also, 103 A.L.R. 18, for an annotation of the many cases bearing upon this question.

In the case of Hodge v. Muscatine County, supra, which involved the construction of an Iowa statute, the Supreme Court of the United States upheld the constitutionality generally of a lien fixed upon physical and tangible property used in a certain business subject to an occupation tax. This case involved a tax upon cigarette ■dealers, and a lien was fixed “upon all property, both personal and real, used in •connection with the business.” [196 U.S. 276, 25 S.Ct. 238, 49 L.Ed. 477.] In the •course of the opinion the court said: “It was within the power of the legislature to make the tax a lien upon the property whereon the business was carried. If general taxes upon real estate and specific taxes for improvements thereto, including pavements, sidewalks, sewers, the opening of streets and keeping them clean, may be made liens upon the property affected, it is difficult to see why a tax upon the business ■carried on upon such property may not be made a lien as well as a claim against the owner.”

Other States have enacted analogous •statutes. For a discussion of some of the laws enacted by other States, we cite the following cases: Ervin v. State of Alabama, 5 Cir., 80 F.2d 432; Atlanta Trust Co. v. Atlanta Realty Corporation, 177 Ga. 581, 170 S.E. 791; State Revenue Commission v. Rich, 49 Ga.App. 271, 175 S.E. 394; Motor Dealers Credit Corporation v. Heise, 166 S.C. 389, 164 S.E. 900; Ferris v. Chic-Mint Gum Co., 14 Del.Ch. 232, 124 A. 577; People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754. This Act has been considered in the following cases: Johnston & Burnham, Inc., v. State, Tex.Civ.App., 95 S.W.2d 144; Wright v. State, Tex.Civ.App., 71 S.W.2d 352; In re White Star Refining Co., 5 Cir., 74 F.2d 269; Ex parte Klugsberg, 126 Tex. 225, 87 S.W.2d 465.

The Court' of Civil Appeals erred in holding that the bonds issued by the Star Refining & Producing Company were superior to the taxes claimed by the State.

It is contended by some of the inter-venors, if not by all of them, that Section 7, in creating a lien to secure the motor fuel tax and providing that such lien should be prior and superior to all other liens, speaks prospectively and not retrospectively, and has no application to contractual liens accruing prior to the passage of the Act; the priority of the State’s lien over other liens being limited to those liens, contractual or statutory, accruing subsequent to the passage of such Act.

The burden of levying taxes rests on the Legislature, and that body has plenary power of prescribing the mode of taxation to raise revenue; and the specification of certain objects and subjects of taxation in the Constitution does not prevent it from passing laws requiring other subjects or objects to be taxed, unless expressly prohibited by the Constitution. Section 17 of Article 8, Constitution, Vernon’s Ann.St.

It has been demonstrated that only a small per cent, of the. amount of funds necessary to maintain the State government is raised under the ad valorem tax plan. The Legislature has been compelled to resort to other methods of raising revenue to meet the demands of our expanding State government. Hence Articles 7065a — 1 et seq., 7047, Vernon’s Ann.Civ. St., and others, of the Revised Civil Statutes were enacted. It is well known that Article 7065a — 1 et seq. is the State’s greatest revenue producer. Section 41a of Article 7047 imposes an occupation or excise tax on every person in Texas manufacturing or importing cement, and who thereafter distributes, sells or uses the same in intrastate commerce. Likewise, the law imposes an occupation or excise tax on several other occupations, and gives the State a preference lien on the property used in connection with such occupations. See Section 45 of Article 7047, Section 8 of Article 7047c — 1, Section 5(b) of Article 7047b, Article 7047f, Article 7047g, and Article 7057a, Vernon’s Ann.Civ.St.

It may well be admitted that the rule fixed in this Act may appear to he harsh, and will cause hardships to those who in good faith have acquired liens on property prior to the time when taxes may be due the State under this law. The Legislature has seen fit, in the exercise of its power and discretion, to so declare that to be the public policy of this State. The history of this Act and the language used therein leaves no doubt as to the clear intention of the Legislature to declare all liens, regardless of the time when such liens originated, upon the property used by the distributor, described in said Act, to be inferior to the claim and lien of the State fixed by this law.

It appears that the Legislature has adopted this mode of taxation in order to obtain revenue to support the State government. It is the duty of the courts to uphold such legislation, unless it clearly appears to violate some provision of our Constitution. The decisions above cited tend to uphold such legislation. This Court holds that the Act in question is a valid exercise of the power delegated by the Constitution to the Legislature to levy taxes. If same is unjust and needs amending, that power rests exclusively with the Legislature.

The State further contends that the trial court and the Court of Civil Appeals erred in holding that on April 30, 1935, the Star Refining & Producing Company was insolvent. In the case of Price v. United States, 269 U.S. 492, 46 S.Ct. 180, 70 L.Ed. 373, the facts involved were similar to the facts in this case. In that case the petition prayed for the appointment of a receiver to take possession of the assets involved therein, and that the assets be sold and the proceeds distributed to those entitled thereto. The defendant filed its answer and adopted the bill of complaint filed by plaintiff and consented to the appointment of a receiver. The Supreme Court of the United States held that where all parties had joined in a prayer for the appointment of a receiver to take charge of the assets of a business, the question of insolvency was presented for determination. See, also, People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754; Spokane County v. United States, 279 U.S. 80, 49 S.Ct. 321, 73 L.Ed. 621.

The evidence and pleadings in this case raise the question of the insolvency of the Star Refining & Producing Company. The trial court found that such company was insolvent, and the Court of Civil Appeals affirmed that holding. This Court under this record is not justified in setting aside such finding of the trial court and Court of Civil Appeals. This contention is overruled.

It is also contended that the lower courts erred in holding that the United States was entitled to a preferential payment of its claim for taxes by virtue of Section 3466, Revised Statutes U.S., Section 191, Title 31, U.S.C.A. Said Section 3466 provides: “Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.”

The United States asserted that its claim for taxes was secured by a preference lien, and was superior to all other liens, and particularly that asserted by the State. The United States did not appeal from the judgment of the lower courts. Counsel for the United States do not question the correctness of the judgment decreeing to certain-lien holders rights superior to that of the United States. As we understand their contention, it is based on the proposition that, if this Court should hold the claim of the State is superior to those of the lien holders, then, in that event, it is claimed that the claim of the United States should be declared superior to the claim of the State.

The United States must rely for the enforcement of its claim for taxes on Section 3466 and Section 3186, Rev.St.U.S., 31 U.S.C.A. § 191 and 26 U.S.C.A. §§ 1560, 1561, and 1562. Since these are acts of Congress, the decisions of the Supreme Court of the United States construing them are decisive with this Court. Section 3466 has been construed by the Supreme Court of the United States many times. We will cite only some of the cases: United States v. Oklahoma, 261 U.S. 253, 43 S.Ct. 295, 67 L.Ed. 638; Spokane County v. United States, 279 U.S. 80, 49 S.Ct. 321, 73 L.Ed. 621; People of State of New York v. Maclay, 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 815; United States v. Knott, 298 U.S. 544, 56 S.Ct. 902, 80 L.Ed. 1321, 104 A.L.R. 741.

Valid and enforceable liens created by statute, and not. solely dependent upon a levy of any character for their inception, and in existence prior to bankruptcy, are not affected by the laws relating to bankruptcy. Section 64, Bankr.Act, 11 U.S.C.A. § 104, has no reference to valid lien debts, and claims entitled to priority of payment by this section would not take precedence over claims .secured by valid liens. In re Cardwell, D.C., 52 F.2d 158; City of Richmond v. Bird, 249 U.S. 174, 39 S.Ct. 186, 63 L.Ed. 543; Lott v. Salsbury, 4 Cir., 237 F. 191; In re Yoke Vitrified Brick Co., D.C., 180 F. 235; Globe Bank & Trust Co. v. Martin, 236 U.S. 288, 35 S.Ct. 377, 59 L.Ed. 583; Collier, p. 1438.

It is now settled that the priority afforded the United States under Section 3466 applies when the person owing such tax is insolvent, or when a receiver is appointed to take charge of the assets. In construing this section, in the case of United States v. Oklahoma, 261 U.S. 253, 43 S.Ct. 295, 297, 67 L.Ed. 638, it is said: “The claim of the United States to the asserted priority rests exclusively upon the statute. No lien is created by it. It does not overreach or supersede any bona fide transfer of property in the ordinary course of business. It establishes priority which is limited to the particular state of things specified. The meaning of the word ‘insolvent,’ used in the act, and of the insolvency therein referred to, is limited by the language to cases where ‘a debtor not having sufficient property to pay all his debts shall make a voluntary assignment,’ etc. Mere inability of the debtor to pay all his debts in ordinary course of business is not insolvency within the meaning of the act, but it must be manifested in one of the modes pointed, out in the latter part of the statute which defines or explains the meaning of insolvency referred to in the earlier part.”

In the case of United States v. Knott, supra, it is said [298 U.S. 544, 56 S.Ct. 904, 80 L.Ed. 1321, 104 A.L.R. 741]:

“Revised statutes, § 3466 [31 U.S.C.A. § 191], provides that ‘whenever any person indebted to the United States is insolvent’ ‘the debts due to the United States shall be first satisfied.’
* * * * * *
“The question for our decision is the legal effect upon the asserted federal right of the statute so construed. As was said in Thelusson v. Smith, 2 Wheat. 396, 426, 4 L.Ed. 271: ‘The United States are to be first satisfied; but then it must be out of the debtor’s estate. If, therefore, before the right of preference has accrued to the United States, the debtor has made a bona fide conveyance of his estate to a third person, or has mortgaged the same to secure a debt, or if his property has been seized under a fi. fa., the property is devested out of the debtor, and cannot be made liable to the United States.’ See, also, Beaston v. Farmers’ Bank of Delaware, 12 Pet. 102, 135, 136, 9 L.Ed. 1017.
⅜ ⅝ ⅜? ⅝ ⅜ ⅜
“It is true that the priority statute is not applicable unless insolvency has been manifested by some proceeding equivalent to an assignment of all of the debtor’s property, United States v. Oklahoma, 261 U.S. 253, 262, 43 S.Ct. 295, 67 L.Ed. 638; United States v. Hooe, 3 Cranch 73, 91, 2 L.Ed. 370.”

Section 1560, 26 U.S.C.A., reads: “If any person liable to pay any tax neglects or refuses to pay the same after demand, the amount (including any interest, penalty, additional amount, or addition to such tax, together with any costs that may accrue in addition thereto) shall be a lien in favor of the United States upon all property and rights to property, whether real or personal, belonging to such person.”

Section 1561 provides for the period of lien as follows: “Unless another date is specifically fixed by law, the lien shall arise at the time the assessment list was received by the collector and shall continue until the liability for such amount is satisfied or becomes unenforceable by reason of lapse of time.”

Section 1562 further provides: “Such lien shall not be valid as against any mortgagee, purchaser, or judgment creditor until notice thereof has been filed by the collector. * * * ” Provision is made for filing notice in accordance with the laws of the State or in the office of the Clerk of the United States District Court in the district in which the property subject to the lien is situated.

In the case of Savings & Loan Society v. Multnomah County, 169 U.S. 421, at page 428, 18 S.Ct. 392, at page 395, 42 L.Ed. 803, the Supreme Court of the United States, said: “This court has always held that a mortgage of real estate, made in good faith by a debtor to secure a private debt, is a conveyance of such an interest in the land as will defeat the priority given to the United States by act of congress in the distribution of the debtor’s estate. United States v. Hooc, 3 Cranch 73 [2 L.Ed. 370]; Thelusson v. Smith, 2 Wheat. 396, 426 [4 L.Ed. 271]; Conard v. Atlantic Ins. Co., 1 Pet. 386, 441 [7 L.Ed. 189].”

Thus it is seen that the State and Federal laws involved here are radically different. It will be observed that the assessment and collection of taxes arising under Article 7065a — 1 et seq., Vernon’s Ann.Civ.St., are different from the assessment and collection of taxes under the general statutes regulating the assessment and collection of taxes. See Title 122, Revised Civil Statutes, Vernon’s Ann.Civ.St. art. 7041 et seq., Article 7065a — 7, Vernon’s Ann.Civ.St., gives the State a preferred lien against specific property used by the distributor. The language used clearly shows that it was intended to give the State a specific and prior lien over all other liens outstanding against such property, for the payment of taxes due the State. Such tax shall accrue and be paid upon the first sale in Texas. The Act then describes what constitutes the “first sale”; and the tax due thereon shall be due and payable at the office of the Comptroller on the 20th day of each month. In Section 3466, 31 U.S.C.A. § 191, regarding the lien afforded the United States, it is declared that: “Whenever any person indebted to the United States is insolvent * * * the debts due the United States shall be first satisfied.” This section" creates no lien. In Section 1562, 26 U.S.C.A., it is clearly stated that such lien provided for in Section 1560 shall not be valid as against any mortgagee, purchaser, or judgment creditor, until notice thereof has been filed by the collector.

Under the decisions of the Federal courts, bona fide transfers of property and valid liens held by mortgagees, in existence at the •time the tax is due the United States, shall be superior to the claim of the United States ; and such liens take precedence over the claim of the United States under the Federal statutes just cited. Counsel for the United States concede this. The State has declared its claim to be prior to all other claims. The United States recognizes certain rights as being prior to its claim. At most, the claim of the United States is second. But it is contended that the claim of the United States should be ranked prior to the claim of the State. Such reasoning would make the claim of the State third in rank and would-place the claims of the United States and the lienholders prior to the claim of the State. In order to give the United States precedence over the State in this case, this Court would be compelled to hold, in construing Article 7065a — 7, that the claims held by the State thereunder should be inferior to those of lienholders and the claim of the United States. Such a holding would absolutely nullify that Section and destroy the clear intention of the Legislature expressed therein.

It is undisputed that the liens decreed by the trial court to be preference liens were fixed before the claims of the United States and of' the State arose. We consider the holders of such liens as coming under the class of mortgagees as defined in Section 1562. So far as we know, the precise question involved here has never been decided by the Supreme Court of the United States. We therefore hold that the claims involved here are ranked as follows: that of the State first; those of the mortgagees, in accordance with the priorities decreed between them by the trial court, second; that of the United States third; and those of the other creditors, not awarded liens described in the judgment of the trial court, fourth.

The right to enforce the lien of the State against a homestead is not involved here, and we therefore express no opinion on that question.

The State also contends that the trial court and Court of Civil Appeals erred in holding that the State had no lien to secure the payment of the taxes due the State on the nine tanks belonging to the Star Refining & Producing Company, on which James Harrison held a lien, and which had been transferred to the said James Harrison prior to the receivership proceedings.

The trial court found that “about ninety days before the filing of a receivership suit, or about the 30th day of April, 1935,” and after default in such chattel mortgage note, the Star Refining & Producing Company agreed to deliver to James Harrison such tank cars, in full satisfaction of the debt sued upon.

The trial court found that the title to the nine tank cars was vested in James Harrison ninety days prior to the time the suit was filed on the 30th day of April, 1935. Under the provisions of Section 7 a preference lien is given the State for taxes due, over the claims of other' lienholders. This preference is given specifically by the terms of said section, and such preference extends to the property owned or used by a company as a distributor, as defined in Section 7. The United States has no claim on the nine tank cars, and • counsel for the United States, as we understand it, do not contend that the United States has a lien on same. The State of Texas has a preference lien on the nine tank cars, for the taxes due by the Star Refining & Producing Company up to the time that the Star Refining & Producing Company parted title to such nine tank cars and same passed to James Harrison. The trial court and the Court of Civil Appeals erred in holding that the nine tank cars were exempt from taxes due the State.

We have considered the other assignments presented, and they are overruled.

Both the judgment of the trial court and that of the Court of Civil Appeals will be reversed, and this cause will be remanded to the trial court for further proceedings in conformity with this opinion.


text:
    STATE v. LOWMAN et al.
    No. 7427.
    Supreme Court of Texas.
    Dec. 6, 1939.
    Wm. McCraw, Former Atty. Gen., Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., Asst. Atty. Gen., for plaintiff in error.
    H. G. Andrews and Charles E. Coombes, both of Stamford, for defendant in error Bridwell & Fikes.
    F. D. Wright, of Cisco, for defendant in error Lowman.
   SHARP, Justice.

This case originated in the District Court of Eastland County. It involves the construction of Article 7065a — 7, Vernon’s Ann.Civ.St. The trial court held that those who held liens against the property involved had preference liens over those of the United States and the State of Texas for the taxes due on said property. The Court of Civil Appeals affirmed the judgment of the trial court. 115 S.W.2d 794.

This case involves the same questions presented in the case of State of Texas v. B. J. Wynne et al., the opinion of the Court of Civil Appeals being reported in 113 S.W.2d 325. The two cases were heard together.

We have this day handed down our opinion in the case of State of Texas v. B. J. Wynne et al., reported in 133 S.W.2d 951, and the judgments of the trial court and Court of Civil Appeals in this case are reversed for the reasons given in the foregoing opinion, and this cause is remanded to the trial court for further proceedings in conformity with said opinion.


text:
    STATE et al. v. NIX et al.
    No. 7574.
    Supreme Court of Texas.
    Dec. 6, 1939.
    Gerald C. Mann, Atty. Gen., and Pat M. Neff, Jr., and Geo. W. Barcus, Asst. Attys. Gen., for appellants.
    Wm. Madden Hill, of Dallas, Steve M. King, U. S. Atty., of Beaumont, and J. L. Backstrom and B. W. Berg, Sp. Attys., both of Dallas, for appellees.
   SHARP, Justice.

This case is before us on certified questions from the Court of Civil Appeals for the Second District. The statement and certified questions read as follows;

“The appeal pending before this court in the above styled cause grows out of a judgment rendered by the District Court of Gregg County, in favor of Howard Dailey, as intervening plaintiff, against W. L. Nix, in which Dailey was awarded a recovery for a portion of the amount sued for, the establishment of the validity and priority of his chattel mortgage lien on certain personal property, and the right to have his judgment paid out of certain funds held in the registry of the court. The funds from which payment was ordered were placed ‘in the registry of the court by a previously appointed receiver of the property of the defendant, Nix.
“W. L. Nix was, for a time, engaged in the refinery business, under a trade name of Texas Refinery. He manufactured and distributed motor fuel and thereby became liable for the payment of certain taxes thereon to the United States and to the State of Texas. He failed to pay certain of those taxes, and when suit was instituted against him by the original owner of certain notes owing and to foreclose certain chattel mortgage liens previously executed by him to secure their payment, a receiver was appointed, who, under orders of the court, leased the refinery plant for a time and later sold its physical assets. The proceeds coming into the receiver’s hands were deposited in the registry of the court.
“We believe that the following statement from-the entire record will suffice to place before the Court the points involved :
“M. R. Ingram sued W. L. Nix, doing business in the trade name of Texas Refinery, and Heartfield Refinery Company, Inc., in a district court of Gregg County, Texas, for recovery on a note in the principal sum of $1,103.49, with interest at 8% per annum from its date along with the usual and customary ten per cent attorney fees, seeking a foreclosure of a chattel mortgage lien on six 250-barrel run down tanks, and one 1000-barrel storage tank, alleged to be a part of the equipment used in connection with a refinery. The note and mortgage were alleged to have been executed by Heartfield Refining Company, Inc., to plaintiff, on May 11th, 1933, and that the chattel mortgage lien was forthwith filed for record.
“Further allegations are to the effect that subsequent to the execution and delivery of the note and mortgage, Heartfield Refinery Company, Inc., for a valuable consideration, sold and delivered to defend-. ant, W. L. Nix, the mortgaged property, and that Nix assumed to pay plaintiff said indebtedness evidenced by the note.
“Plaintiff’s pleading's further show that the indebtedness is past due and unpaid, that demand has been made therefor and that Nix is insolvent. Other allegations state facts which, if true, would authorize the appointment of a receiver for the business operated by Nix.
“Prayer was for the debt and foreclosure of the chattel mortgage lien and for a receiver; that a sale of the property by the receiver be ordered and that the proceeds of such sale be applied to the liquidation of plaintiff’s debt and for general relief.
“After notice, the court heard the application and entered an order appointing a receiver of the, business operated by W. L. Nix, in which order, among other things, it is recited: ‘ * * * And the plaintiff appearing by counsel and the defendant having appeared, and plaintiff having announced ready on his application, the court having read the verified oath of complaint and hearing the statement and admissions in open court, is of the opinion and finds that the same presents the proper case authorizing the appointment of a receiver, ex parte, and for granting the relief shown in this order.’ J. G. Strong was appointed receiver, his bond set and his duties defined.
“The Federal Government, the State of Texas and R. P. Ash intervened as creditors of W. L. Nix. Ash’s claims consisted of two notes secured by chattel mortgages. The first note was for $1,750.00, dated April 27th, 1933, with 8% interest per an-num from date and ten per cent attorney fees, secured by a chattel mortgage lien on what was known as the Heartfield Refining Company plant (excepting the part previously mortgaged to plaintiff). Ash’s second note was in the sum of $4,651.86, dated September 19th, 1933, with 8% interest per annum from date and attorney fees, secured by a chattel mortgage on one 1500-barrel capacity Pipe and Still, Water Cooling Tower, Laboratory Building and Equipment, Pipe and Equipment in Water Well, 2000-barrel capacity bubble tower, Bath house and equipment, Office furniture, typewriter and filing cabinets. It was alleged these notes were both due and unpaid. Prayer in that intervention was for debt and foreclosure of the lien on the property described.
“The State of Texas intervened under its claim for $28,870.16, then due the State by W. L. Nix for taxes, penalty and interest, on motor fuel manufactured and distributed, upon which the tax had not been paid under Article 7065a, Vernon’s Civil Statutes [article 7065a — 1] et seq., and for a foreclosure of its alleged first and preferred lien on all the property of W. L. Nix, including that described in plaintiff’s and Ash’s alleged chattel mortgages.
“The United States, acting by and through W. A. Thomas, Collector of Internal Revenue for the Second District of Texas, intervened, made proof of and asked for judgment for its debt of $20,907.61, for taxes and penalties due on motor fuels manufactured and sold by Nix, for which no payment had been made. This inter-vener claimed and asked for a foreclosure of its first and preferred lien on all property of Nix, under and by virtue of Section 3466 of Revised Statutes of the United States, Section 191, Title 31, U.S.C.A.
“Thereafter, on January 21st, 1938, Howard Dailey was permitted by the court to intervene, as the sole ’ plaintiff under allegations that he had acquired all the rights in the subject matter theretofore held by the original plaintiff, M. R. Ingram, and intervener R. P. Ash. An amended petition was at that time filed by intervener Dailey, alleging the indebtedness and liens acquired by him, largely in the same language previously set out by Ingram and Ash. Further allegations were made that the receiver, theretofore appointed by the ■ court, had, under orders of the court, sold the assets of W. L. Nix, doing business in the name of Texas Refinery, and had turned into the registry of the court (less costs and expenses incurred) the total sum of $7,466.92.
“Prayer was for allowance of his indebtedness, that he be given judgment for the amount and that his claim and liens be decreed as prior and superior to all others of the parties, whether plaintiff, defendants or interveners, and that an order be entered directing payment from the funds in the registry of the court, for costs and general relief.
“Interveners, United States and the State of Texas, renewed their pleas of intervention in much the same way as in their original pleadings, and further answered and denied that the substituted plaintiff, Dailey, was entitled to the relief sought. Each intervener- insisted upon its respective rights and priorities theretofore pleaded.
“Upon trial to the court, evidence was heard, about which there is little or no controversy under the issues involved here. Judgment was entered favorable to the intervening plaintiff, Dailey, as well also more favorable to the intervener, United States, than to the State of Texas.
“The court found in his judgment that Dailey was the owner of the Ingram note originally sued on and of the two notes owned by Ash at the time of his intervention ; that these debts were secured by liens on those parts of the assets of Nix, described in the respective mortgages; that said liens were first and superior as against those asserted by interveners, United States and the State of Texas. There was a further finding that the asserted lien of the United States was prior and superior to that of the State of Texas.
“The court further found that the property upon which Dailey held his first and superior lien constituted eighty per cent of all the assets of Nix coming into the hands of the receiver and sold by him; that out of the sum of $7,466.92 then in the registry of the court, so deposited by the receiver, certain parts thereof were the proceeds of operation and leasing of the refinery plant, and that $1,618.50 thereof represented' the total sum for which the receiver, sold said physical assets, and that said sale was the best that could be obtained by the receiver and had been approved b^ the court. That by reason of the fact that Dailey had a first and superior lien against eighty per cent of said assets, he was entitled to receive from the proceeds of said sale $1,294.80 therefrom, and that the United States having a second lien on said property, it should receive the remainder of said total fund; that said remainder being insufficient to satisfy the United States tax and lien, there was nothing left with which to pay the tax debt and lien of the State. There was a further finding that by agreement of all parties the receiver was entitled to be paid from said fund $75.00 for services rendered, before either plaintiff, Dailey, or the United States should be paid any sum. The decree ordered paid from the fund in the registry of the court, (1) all costs incurred in the suit not previously paid by the receiver, including $75.00 to the receiver ; (2) the claim of intervener, Dailey, in the sum of $1,294.80; and (3) the balance to the United States to be applied upon its judgment and claim for taxes. The decree further recites, ‘Inasmuch as the claim of the United States as allowed, is greater than the amount of money in the hands of the court, there will be nothing left to be applied on the claim of the State of Texas allowed herein.’ ”

In a supplement to the certificate, the Court of Civil Appeals added the following statement:

“There is evidence in the record to support the following finding in the judgment rendered by the trial court:
“ ‘The court finds that the Receiver, J. G. Strong, realized all that could have been realized from the assets of W. L. Nix operating as the Texas Refinery, and that such assets are less than the amount of the liabilities of W. L. Nix operating as the Texas Refinery, and that on November 20, 1933, the date of the institution of this proceeding.?, and since that date up to the date of this judgment that W. L. Nix, operating as the Texas Refinery and this receivership proceedings was and has been at all times insolvent.’ ”

Continuing with the original statement:

“The intervener, State of Texas, excepted to the rulings of the court. The United States excepted to that part of the judgment giving intervener, Dailey, a preference lien to that of the Federal Government, and both the United States and the State of Texas gave notice of appeal to the Texarkana Court of Civil Appeals. The State of Texas alone perfected the appeal.
“Both the United States and the State of Texas made proof of their respective claims against Nix for taxes, interest and penalties due and unpaid. Those of the United States, accruing during the months of May, June, July, August, September, October and November, 1933, aggregated $19,914.81. The State of Texas made proof of taxes, interest and penalties to date of trial, due for the months of October and November, 1933, in the aggregate sum of $30,797.69.
“In entering the judgment, the trial court considered the chattel mortgage liens held by intervening plaintiff, Dailey, to be first and prior to those asserted by each the United States and the State of Texas, and that the lien of United States was first and superior to the rights of the State of Texas.
“The United States claimed a first preferred and superior lien under and by virtue of the U.S.Rev.St. Section 3466, Sect. 191, Title 31, U.S.C.A., which reads:
“ ‘Whenever any person indebted to the United States is insolvent, or whenever the estate of any deceased debtor, in the hands of the executors or administrators, is insufficient to pay all the debts due from the deceased, the debts due to the United States shall be first satisfied; and the priority established shall extend as well to cases in which a debtor, not having sufficient property to pay all his debts, makes a voluntary assignment thereof, or in which the estate and effects of an absconding, concealed, or absent debtor are attached by process of law, as to cases in which an act of bankruptcy is committed.’
“In support of its contention that its claim matured into a first and superior lien under the Federal Statute above referred to, the United States relies upon the following authorities: Price v. United States, 269 U.S. 492, 46 S.Ct. 180, 70 L.Ed. 373; Hatch v. Morosco Holding Co., Inc., 2 Cir., 61 F.2d 944; Gerson, Beesley & Hampton, Inc. v. Shubert Theater Corp., D.C., 7 F.Supp. 399; State of N. Y. v. Maclay et al., 288 U.S. 290, 53 S.Ct. 323, 77 L.Ed. 754; State of Texas v. Wynne, Tex.Civ.App., 113 S.W.2d 325; Churchill v. Straus Investing Corp., D.C., 25 F.Supp. 316.
“The State of Texas claims a first, prior and preferred lien on all the property of the distributor, under Article 7065a, Sect. 7 [article 7065a — 7] Vernon’s Texas Civil Statutes. The portion of Section 7 relied upon reads, in part, as follows: ‘All taxes, fines, penalties and interest due by any distributor to the State shall be a preferred lien, first and prior to any and all other existing liens, contract or statutory, legal or equitable, and regardless of the time such liens originated, upon all the property of any distributor, devoted to or used in his business as a distributor * * *.’
“The State of Texas further relies upon the holdings of our courts, in support of its contention that it has a first, prior and preferred lien, in numerous cases cited, among which it especially emphasizes: State for use of Delta County Levee Improv. Dist. v. Bank of Mineral Wells, Tex.Civ.App., 251 S.W. 1107; Preston v. Anderson Co. Imp. Dist., Tex.Civ.App., 261 S.W. 1077, writ refused; Kirk v. City of Gorman, Tex.Civ.App., 283 S.W. 188; Wood v. Scott, Tex.Civ.App., 48 S.W.2d 1024, writ refused; Childress County v. State, 127 Tex. 343, 92 S.W.2d 1011.
“It is contended by the intervening plaintiff below, appellee here, that Article 7065a, Sect. 7, Vernon’s Texas Civ.St., relied upon by the State, in so far as it attempts to confer a first, prior and preferred lien on all personal property of the distributor used in connection with his business, to previously created contract liens, such as held by him, is void as being in violation of the provisions of our State Constitution, Article I, Section 16 [Vernon’s Ann.St.] and of the United States Constitution, Article I, Section 10 [U.S.C.A.]. Each of which prohibits the passage of ex post facto laws or those which impair the obligation of contracts.
“We had before us recently the case of the State of Texas v. Wynne, reported in 113 S.W.2d 325, which involved, among other things, the questions arising in this appeal. A writ of error was granted by that Honorable Court in that case, and has not yet been reached for consideration.
“We have expressed our views in this case, as shown by the accompanying tentative opinion, but in view of the status of the Wynne case, supra, we deem it advisable to certify the issues involved here to that IJonorable Court. The questions involved and which we desire to have answered are:
“1. Do the provisions of Section 7 of Article 7065a, V.T.C.S., which give to the State of Texas ‘a preferred lien, first and prior to any and all other existing liens’ upon all the property of the distributor, devoted to or used in connection with the business as a distributor, to secure the payment to the State, for all taxes, penalties and interest due the State, under the Motor Fuel Act, violate the provisions of Article I, Section 16, of the State Constitution and Article I, Section 10, of the U. S. Constitution?
“2. Under the conditions and facts shown in this case, did the trial court commit an error in holding that the claim of the United States for taxes, penalties and interest should be paid out of the funds in the registry of the court before the similar claims of the State of Texas were paid?”

For the reasons given in an opinion handed down by this Court on this date in the case of State of Texas v. B. J. Wynne et al., 133 S.W.2d 951, we answer Question No. 1 “No,” and Question Np. 2 “Yes.”


author: HARVEY, Commissioner.

text:
    TEXAS & N. O. R. CO. v. DINGFELDER & BALISH, Inc.
    No. 2281-7420.
    Commission of Appeals of Texas, Section A.
    Dec. 6, 1939.
    John C. North, of Corpus Christi, for plaintiff in error.
    Ward & Brown, of Corpus Christi, for defendant in error.
   HARVEY, Commissioner.

In May, 1935, the defendant in error, Dingfelder & Balish, a corporation, delivered to the Texas & New Orleans Railroad Company, at Floresville and Poth, Texas, twenty-nine carloads of onions for transportation to New York. The onions were carried by the railroad company to Galveston where same were turned over by the railroad company to the Southern Pacific Company (who operates Southern Pacific Steamship Lines) for further transportation to destination — the City of New York. The onions were in good condition when shipped and when same were turned over by the railroad company to the Southern Pacific Company at Galveston; but upon their arrival at New York they were in a damaged condition, which resulted from the negligence of the Southern Pacific Company. The case was tried before a jury on special issues, resulting in a judgment in favor of the defendant in error for $8332.50 damages against the railroad company and the Southern Pacific Company, jointly and severally. The railroad company alone prosecuted an appeal to the Court of Civil Appeals at San Antonio, and the judgment of the trial court was affirmed. 114 S.W.2d 666. The railroad company has been granted the writ of error.

The railroad company contends that because the damage to the onions resulted from the negligence of the Southern Pacific Company, and the defendant in error has chosen to sue that company, the trial court erred in rendering judgment against the railroad company for any amount. The contention is overruled. This was an interstate shipment, and the railroad company was the initial carrier. By virtue of the Act of Congress known as the Cummins Amendment, 49 U.S.C.A. § 20, par. (11), the railroad company, being the initial carrier, is liable to the defendant in error for the damage to the onions, regardless of the fact that such damage resulted solely from the negligence of the connecting carrier, the Southern Pacific Company. Galveston, H. & S. A. R. Co. v. Wallace, 223 U.S. 481, 32 S.Ct. 205, 56 L.Ed. 516; Atlantic Coast Line R. Co. v. Riverside Mills, 219 U.S. 186, 31 S.Ct. 164, 55 L.Ed. 167, 31 L.R.A.,N.S., 7. Furthermore, the statutory liability of the railroad company to the defendant in error is not affected either by the fact that the Southern Pacific Company was sued in this same suit on its common law liability or by the fact that the defendant in error recovered judgment against the latter. Burd v. San Antonio Southern R. Co., Tex.Com.App., 261 S.W. 1021.

The other ground of complaint presented in the application goes to the action of the trial court in rendering judgment against the railroad company for an amount of damages greater than the amount found by the jury. The situation to which this complaint relates, as same is disclosed by the record before us, is this :—

As said, the case was tried before a jury on special issues. Preliminary to and in connection with the special issues which the trial court submitted to the jury, the court charged the jury, among other preliminary charges not presently material, in the following words: “The measure of damages in this case is the difference between the market value of the onions on May 27, 1935, in New York, New York, in the condition in which they should have arrived at destination and the market value then and there in the condition in which, by reason of the negligence.of the carrier, they did arrive.”
The question as to the amount of damages was submitted to the jury in these words: “What amount of money, if any, do you find will compensate plaintiff for the damage involved in this controversy, caused by the negligence of the defendant Texas & New Orleans Railroad Company, and its connecting- carriers, or either of them?”
The jury answered: '“$7500.00.”

After the verdict was returned by the jury, the trial court rendered judgment for the plaintiff for $8,332.50. The railroad company complains of the amount of the judgment to the extent that same exceeds the sum of $7,500.00 — the amount of damages found by the jury. The amount of such excess is for interest on said sum of $7,500, at the rate of six per cent per annum from the date of accrual of the plaintiff’s cause of action to the date of judgment. The question thus raised is ruled by the decision of this court in Ewing v. Wm. L. Foley, Inc., 115 Tex. 222, 280 S.W. 499, 44 A.L.R. 627. In this case, as in that case, the prayer in the plaintiff’s petition is for damages “with interest.” In all other material respects the situation in this case is essentially the same as in that case. In this case, the question of amount of damages which was submitted to the jury, as qualified by the measure of damages given in the court’s charge, excluded interest from consideration by the jury. In other words, the only fact question pertaining to the amount of damages recoverable by the defendant in error, and upon which the recovery of interest depended, was submitted to the jury for determination. Since no fact question arose from the evidence in respect to interest on the amount found by the jury being recoverable, there was no occasion for the submission of the matter of interest to the jury. For the same reason, the charge on the measure of damage was not open to objection on the ground that interest was omitted therefrom. The determination of the amount of this item of damage was a law question for the court, and therefore said amount was properly included in the judgment. Any decision in conflict with the views here expressed is overruled.

The judgment of the trial court and that of the Court of Civil Appeals affirming same are affirmed.

Opinion adopted by the Supreme Court.


author: KRUEGER, Judge.

text:
    TIPS v. STATE.
    No. 20664.
    Court of Criminal Appeals of Texas.
    Oct. 25, 1939.
    Rehearing Denied Dec. 20, 1939.
    William H. Scott, of Houston, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The conviction is for an assault. The punishment assessed is confinement in the county jail for a period of sixty days.

The record is before us without a statement of facts or bills of exceptions. The information is in due form and procedural matters appear to be in due order.

The judgment is affirmed.

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: CHRISTIAN, Judge. BEAUCHAMP, Judge.

text:
    WALDROP v. STATE.
    No. 20559.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.
    J. V. Patterson, of Decatur, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is child desertion; the punishment, confinement in the penitentiary for one year.

Mrs. E. E. Waldrop, wife of the appellant, testified, in substance as follows: She and her husband had been married eleven years and had two small children, one being eight years of age and the other, ten. Her husband had had an affair with Eunie Epperson, which impelled Mrs. Wal-drop to sue him for divorce. Appellant took up his.residence with Eunie Epperson and her small son in one room. Thereafter he contributed nothing to the support of his children.

Appellant’s brother testified that appellant lived with Eunie Epperson and her son in one room. He said: “He (appellant) bought the groceries and she did the cooking for him.” It appears that appellant and his brother were in business together in Bridgeport. The brother testified further: “Yes, I talked this over with him several times and tried to get him to let this other woman alone and take care of his wife and children. He and Miss Epperson and her little boy lived together in one room of the house. Me and my family lived in the rest of the house.”

Testifying in his own behalf, appellant denied that he was living with Eunie Ep-person. It was his version that he boarded with her. Further, he testified that he tried to get his wife to surrender the children to him, and offered to take care of them if she would. Further, he testified that he had contributed to the support of his children to the extent of his financial ability.

We think the evidence is sufficient to support the conviction. The jury were warranted in reaching the conclusion that appellant gave his money to Eunie Epper-son and her son instead of contributing to the support of his small children.

The three bills of exception in the record complaining of testimony to the effect that appellant was living with Eunie Epperson and supporting her fail to present error. If appellant was spending his money on others when the legal and moral duty rested upon him to support his children it was proper for the state to show such fact in support of the averment in the indictment that he acted wilfully in refusing to provide for their support and maintenance. In short, the testimony was relevant. We quote from Branch’s Ann. P.C., Sec. 97, as follows: “Relevancy is defined to be that which conduces to the proof of a pertinent hypothesis — a pertinent hypothesis being. one which, if sustained, would logically influence the issue. Hence it is relevant to put in evidence any circumstance which tends to make the proposition at issue either more or less probable.”

The judgment is affirmed.

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.

On Motion for Rehearing.

BEAUCHAMP, Judge.

The motion for rehearing in this case presents no question differently to • that in the original appeal; nor does the appellant cite us to any authority in aid of his motion. We have, however, reviewed, the three bills of exception as originally and after giving further consideration to the record, we find no error pointed out by a proper bill.

The motion for rehearing is overruled.


author: KRUEGER, Judge. CHRISTIAN, Judge.

text:
    OTTS v. STATE.
    No. 20558.
    Court of Criminal Appeals of Texas.
    Nov. 8, 1939.
    Rehearing Denied Dec. 20, 1939.
    Flóyd Jones, of Breckenridge, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   KRUEGER, Judge.

The offense is theft of cattle; the punishment assessed is confinement in the state penitentiary for a term of two years.

This is the second appeal in this case. The opinion rendered on the first appeal is reported in 135 Tex.Cr.R. 28, 116 S.W.2d 1084, 116 A.L.R. 1454. Appellant insists that the evidence is insufficient to justify and sustain his conviction. This record shows that on the morning of May 13, 1937, S. P. Robertson and his son, Truman, discovered a fresh beef hide hidden under a bridge which crossed Hubbard Creek in Stephens County. Upon examining it, they found a mark and brand on it which they recognized as that of Alfred Donne.ll. Mr. Donnell went to the place, found the hide with his mark and brand thereon and took charge of the same. Joe Ellis testified that about 3 or 4 A. M. on May 13, Amos Otts awakened him and offered to sell him some fresh beef. Ellis purchased a hindquarter from Amos for $4. On the following morning his wife cut a piece off the hindquarter and Ellis stored the remainder at McEl-roy’s Ice House in Breckenridge. Before noon on the same day, appellant and his brother stored some fresh beef, including a hindquarter, at McElroy’s. The sheriff, a deputy, the chief of police and Mr. Donnell testified that the hide which was found fitted the beef in storage, this being determined by the fact that the party or parties who committed the offense had left chunks of meat on the hide, which fitted into the cavities on the beef which had been put in storage. During the trial, the state offered a part of appellant’s purported confession in which he stated that he and his brother took the beef to Breckenridge and stored it. That he and his brother did not sell any beef on May 13 and had sold none for a year or more pri- or thereto. Appellant then offered the remainder of the confession to the effect, that he and his brother had met an unknown man, a stranger, on the road on the evening of the day of the alleged theft, who offered to sell them some fresh meat. That they bought one hindquarter from Him for $4 which they stored at McElroy’s Ice House. This was the only testimony offered by him raising an affirmative defense. The state also introduced testimony that appellant and his brother appeared at the Alexander Ice House on May 13 and offered to store 275 pounds of fresh beef; that when he went back to make out the ticket the parties left. It will be observed from an analysis of the evidence that the state showed that appellant’s brother sold one hindquarter of beef to Mr. Ellis about 4 A. M. and that appellant and Amos offered to store 275 pounds of fresh beef at Alexander’s Ice House the next morning. If this testimony were true, appellant’s statement that they bought only one hindquarter from a stranger would leave unexplained the possession of a great deal of meat which they proposed to store. The beef, or at least a part of the beef which they did store at McEl-roy’s Ice House, was identified as part of the meat from the stolen animal. A careful examination of the evidence has convinced us that it is sufficient to support the jury’s conclusion of the appellant’s guilt.

Appellant’s plea for a suspension of sentence was properly submitted to the jury, but they declined to recommend it.

Appellant addressed a number of objections to the court’s charge. His main objection seems to be directed to the court’s definition ^ of the term “principal” and the fact that the court gave any such instruction at all, it being his contention that such an issue was not raised by the evidence. We are unable to agree with him. The court defined the term “principal” in the language of the statute, and the evidence in our opinion raised the issue. The evidence shows that on the evening of the day of the alleged theft, the appellant and his brother were in a pickup car coming from Breckenridge to Crystal Falls. The hide of the stolen animal seems to have been found under a bridge over Hubbard Creek between Breckenridge and Crystal Falls, the very road upon which appellant and his brother trav-elled about the time the allegedly stolen animal was butchered. The testimony further shows that the next morning before daylight appellant’s brother sold one hindquarter of fresh beef, which was shown to have come from the stolen animal. Appellant by his own statement is shown to be in possession at the same time of some of the meat from the animal, which he and his brother later stored. What is the reasonable conclusion to be drawn from the unexplained possession of this recently stolen property? To our minds it tends to show that the possessor thereof committed the offense or participated therein. Under the facts and circumstances as disclosed by this record, we think the issue of principals was raised and that an instruction thereon was proper. Appellant has cited us to a number of authorities which he contends support his position. We have examined all of. them and agree that they announce a correct legal principle, but do not think they have application to the facts in this case. A most careful examination of all of appellant’s contentions leads us to the conclusion that no reversible error is presented.

The judgment of the trial court is affirmed.

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.

On Appellant’s Motion for Rehearing.

CHRISTIAN, Judge.

After a careful examination of the record in the light of appellant’s motion for rehearing we are constrained to adhere to the conclusion expressed in the original opinion.

The motion for rehearing is overruled.

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: BEAUCHAMP, Judge.

text:
    WHITE v. STATE.
    No. 20625.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    R. B. Gambill, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The offense is operating an automobile upon a public highway while intoxicated; penalty assessed at a fine of $50 and confinement in the county jail for five days.

Appellant entered a plea of guilty to the offense charged in the indictment. The record is before this court without statement of facts or bills of exception.

No error having been presented authorizing a reversal of the conviction, the judgment is affirmed.


text:
    DOYLE v. STATE.
    No. 20619.
    Court of Criminal Appeals of Texas.
    Nov. 29, 1939.
    W. J. Baldwin, of Beaumont, and R. H. Jernigan, of Port Arthur, for appellant.
    Lloyd W. Davidson, State’s Atty., of' Austin, for the State.
   KRUEGER, Judge.

The offense is burglary; the punishment assessed is confinement in the state penitentiary for a term of 7 years.

The state’s testimony, briefly stated, shows that on the night of January 19, 1939, some person or persons, by the use of force, entered the building of the Jasper Wholesale Grocery Company located in the town of Jasper and took therefrom a quantity of cigarettes, cigars, snuff and chewing gum of the approximate value of $850. R. J. Fairly testified that he, Willie Doyle, Dan Doss and the appellant went to Jasper on the night in question, broke into the building in question after midnight, and took therefrom some tobacco, cigars, cigarettes, snuff and chewing gum. They placed it in a Dodge automobile and took it to Orange where Fairly got out and telephoned Levy Johnson at Port Arthur to come to Cruger’s Fishing Camp near Deweyville. When all the parties had arrived.at the designated place, the loot, or a part of it, was loaded into Johnson’s car and Fairly and Johnson carried it to Port Arthur where a part of it was sold to Plettman, and the remainder was carried to Johnson’s garage for safekeeping. A short time later Fairly and Johnson were arrested. The officers took Johnson with them to a point near where Doss, Willie Doyle and the appellant had parked their car in the woods. They found Dan Doss and Willie Doyle sitting near the car, which contained some of the loot, burglary tools, dynamite caps and nitroglycerine. Dan and Willie were immediately arrested. About thirty minutes later, they saw appellant coming out of the woods. They called on him to stop, but he fled into the woods and made good his escape. He was arrested a few days later. Johnson’s testimony was substantially the same as Fairly’s. The merchandise was identified by a stamp “Jasper Wholesale Company,” on the containers. Appellant did not testify or offer any affirmative defense. At the conclusion of the testimony he moved for an instructed verdict on the ground that Fairly and Johnson were accomplices and their testimony as to his connection with the burglary was not sufficiently corroborated. The motion was denied to which appellant timely excepted. We see no error in the court’s ruling in this respect. While the corroborating evidence is meagre, yet appellant was seen in the immediate vicinity where the loot was secreted. When he saw the officers, he immediately fled. In his flight he dropped a seat cover in every respect similar to the cover on the rear seat of the car which contained the stolen merchandise. An inspection of the car disclosed that the front seat cover had been removed. In the absence of any explanation of how and when he came to be there, why he fled, and why he possessed the seat cover from the car containing the stolen goods, we think the circumstances are sufficient to support the jury’s conclusion of his guilt, and that the corroborating proof is sufficient. In none of the cases cited by appellant are the facts corroborating the accomplices as strong as those reflected by this record.

Appellant addressed a number of objections to the court’s charge. His main objection is addressed to the court’s instruction on the law of accomplice testimony, because it merely stated the law relative to accomplices and the necessity of corroboration of their testimony, but did not attempt to apply the law to the particular facts of the case. His objection also stated that the court failed to instruct the jury that they must first believe the testimony of these accomplices to be true; that the manner in which the same was phrased assumed and practically instructed the jury that their testimony was true. An examination of the charge reveals that the objections thereto were well taken. While the Court did instruct the jury that Fairly and Johnson were accomplices, he failed to go further and apply the law to the facts. This was error under the circumstances. The charge should have made a clear application of the law to the facts in the case. See Polk v. State, 60 Tex.Cr.R. 150, 131 S.W. 580 and authorities cited. See also Branch’s Ann.P.C., p. 364 and the authorities cited, which state the rule that a charge on accomplice testimony is error if it fails to require the jury to find the testimony of the accomplices is true. See Sec. 709 Branch’s Ann.P.C. for a proper charge in this respect.

For the error discussed, the judgment is reversed and the cause remanded.

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.