author: O’QUINN, Justice.

text:
    TRADERS & GENERAL INS. CO. v. SCOGIN.
    No. 3713.
    Court of Civil Appeals of Texas. Beaumont.
    Dec. 24, 1940.
    Rehearing Denied Jan. 8, 1941.

      K. W. Denman, of Lufkin, Lightfoot, Robertson & Gano, of Fort Worth, for appellant.
    R. C. Musslewhite and Curtis W. Fenley, both of Lufkin, for appellee.
   O’QUINN, Justice.

This suit was filed by appellee in the district court of Angelina County, Texas, against appellant to set aside an award of the Industrial Accident Board of the State of Texas, and to recover compensation. Appellant answered by general demurrer, general denial, and by a special answer duly verified.

The case was tried to a jury upon special issues on their answers to which judgment was rendered in favor of appellee setting aside the award of the Board, and granting appellee compensation as for total and permanent disability for 401 weeks at the rate of $8.32 per week, the compensation to be paid in a lump sum with proper and legal discount. Motion for a new trial was overruled, and we have the case on appeal.

Appellant’s first proposition complains of what it insists as an improper submission of “partial incapacity.” Special issue No. 4 inquired whether appellee sustained total incapacity .by reason of the injury he had suffered, which the jury answered “Yes.” Special issue No. 8 was: “Do you' find from a preponderance of the evidence that W. L. Scogin has not sustained and will not sustain only partial incapacity as a result of the injury, if any, sustained by him on May 5, 1939? Answer ‘Yes’ or ‘no.’” The jury answered “Yes.” Appellant objected to this issue because “the question of partial incapacity herein which is a defensive issue is limited herein in its language to a finding as to whether or not the plaintiff sustained only a partial incapacity and which is the plaintiff’s issue and not this defendant’s issue and nowhere in this court’s main charge is this defendant’s issue thereon submitted and * * * in that connection said defendant requests the court to properly amend said special issue and to add other special issues to cover the question of this defendant’s issue thereon.”

Special issue No. 8 affirmatively and unconditionally submitted to the jury the issue of “partial incapacity.” The jury’s answer “Yes” to this issue was that appellee had not sustained only partial incapacity by reason of his injury, and that he would not sustain only partial incapacity by reason of his said injury. This was a complete answer that appellee had not sustained partial incapacity as a result of his injury. The answer to special issue 8 was not conditioned on the answer the jury had made to any other issue. Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 317, 5th paragraph. The use of the word “only” in the issue did not make the submission conditional. United Employers Casualty Co. v. Knight, Tex.Civ.App., 139 S.W.2d 613, 615. Furthermore, if it could be said (which on the face of the record it cannot) that the court had wholly failed to charge on the issue of “partial incapacity,” then before appellant could complain of the omission, it would have to prepare a proper issue covering this question and present it to the court with request for submission, which it did not do. Texas & N. O. Ry. Co. v. Crow, 132 Tex. 465, 123 S.W.2d 649. The proposition is overruled.

The second, third, fourth, fifth and sixth propositions are presented grouped. They relate to asserted error (2nd) in the court not affirmatively and unconditionally submitting to the jury special issues as to “primary defensive issue of partial incapacity”; (3rd) in conditionally submitting “defendant’s secondary defensive issue of when partial incapacity began or will begin”; (4th) in conditionally submitting defendant’s secondary issue of whether “the partial incapacity of plaintiff, if any, is or will be permanent”; (5th) in conditionally submitting the defendant’s issue of temporary partial incapacity; (6th) in conditionally submitting defendant’s secondary defensive issue of “for what period of time the partial incapacity shall continue from its beginning date to its termination.” It is to be observed that these propositions present entirely different matters, and so, we think, are improperly grouped. It is true they, in a manner, relate to the question of “partial incapacity” yet they present wholly distinct phases of the question, and answers to one could, and might be contrary to answers to others — in fact conflicting. Assignments pointing out separate and distinct matters may not be grouped for consideration in briefing. However, we have considered the propositions and find no error presented. It is .admitted that appellee, while in the course of his employment, received an injury, and that appellant carried compensation covering him. The whole cavil is as to the extent of his injury. In answer to special issue No. 4, the jury found that appellee sustained total incapacity as a natural result of his injury; and in answer to special issue No. 6, that his total incapacity was permanent; and in answer to special issue No. 7, tha1 his total incapacity “was not and will not be only partial.” These findings answered issues as to appellee’s right to recover. In answer to special issue No. 8 (which has already been discussed) the jury found that appellee. “has not sustained and will not sustain only partial incapacity” as a result, etc., of his injury. This proposition was an affirmative and unconditional submission of appellant’s defense of “partial incapacity.” The jury found against appellant’s contention on this issue. The propositions above (2, 3, 4, 5, and 6) were but different ways of inquiring as to this identical matter. While a defendant is entitled to have his defenses affirmatively and unconditionally submitted, he does not have the right to its submission in different forms. One submission in accordance with the' law is sufficient. The propositions are without merit and are overruled.

The seventh proposition complains that the court erred in not affirmatively and unconditionally submitting appellant’s defensive issue of temporary total incapacity. The court submitted to the jury Special Issue No. 7, to wit: “Do you find from a preponderance of the evidence that such total incapacity, if any, of W. L. Scogin was not and will not be only temporary? Answer yes orno.” The jury found against appellant’s contention of temporary total incapacity. This was an affirmative and unconditional submission of the issue. Wright v. Traders & Gen. Ins. Co., 132 Tex. 172, 123 S.W.2d 314, 317, par. 5. The complaint is without merit.

There is no complaint as to the finding of appellee’s average weekly wage rate. ■

No error appearing, the judgment is affirmed.


source: Caselaw Access Project

author: GRAVES, Justice.

license: Public Domain

text:
    BERNER et ux. v. BERNER et al.
    No. 11099.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.
    Rehearing Denied Jan. 30, 1941.
    C. C. Glenn, of Sealy, W. D. Bryan, of Bellville, and Lawler, Wood & Childress and Virgil Childress, all of Houston (Virgil Childress, of Houston, of counsel), for plaintiffs in error.
    Vinson, Elkins, Weems & Francis, of Houston, for defendant in error G. R. Berner, Jr.
    C. D. Duncan and J. Lee Dittert, both of Bellville, for defendant in error Katherine Downs Berner.
   GRAVES, Justice.

This appeal, through writ of error, by Mr. and Mrs. G. R. Berner, Sr., against Mr. and Mrs. G. R. Berner, Jr., is from a final judgment of the district court of Austin County, of date February 16, 1940, in cause No. 7243 upon its docket, divesting the custody of the eight year old grandson of the former and son of the latter out of its grandparents, and vesting it in its parents, in these terms: “It Is Ordered, Adjudged, and Decreed by the Court that the custody of David Downs Berner, the minor child of Lieutenant G. R. Berner, Jr., and Katherine Downs Ber-ner, be, and the same is hereby, denied to and divested out of G. R. Berner, Sr., and wife, Louise Berner, and placed, and ordered placed, in the custody of Lieutenant G. R. Berner, Jr., and Katherine Downs Berner, as hereinbefore in this decree stipulated, and the said G. R. Berner, Sr., and wife, Louise Berner, are hereby commanded to givé and deliver unto the custody of Lieutenant G. R. Berner, Jr., and Katherine Downs Berner, (said child) as herein stipulated, made certain and provided for in this decree.”

By a prior judgment in the same cause and between the same parties, which had been originally filed by G. R. Berner, Jr., against his then wife, Katherine Downs Berner, for a divorce, property settlement, and custody of the same child, as between those two, in which c^use at that time Mr. and Mrs. G. R. Berner, Sr., had become parties by intervention, seeking for themselves alone the custody of such child, the court had on July 27 of 1939 divorced the junior Berners, settled their property interests, and divided the custody of such minor as between them; no appeal as to those determinations was taken by any party thereto, hence they became final, but with reference to the custody of the child, as between the junior and senior Berners, it further decreed as follows:

“It Is Further Ordered, Adjudged and Decreed by the Court that this Court retains jurisdiction of that portion of this suit relating to custody and support of the minor, David Downs Berner, and to, either upon further hearing the intervention of G. R. Berner, Sr., et ux., which is not this day determined, or upon hearing other motions or pleadings of plaintiff or defendant, or upon the Court’s own motion, alter or change the provisions hereof relating to such custody and support as to the Court may seem necessary from time to time, and to the best interests of said minor. The status and custody of the minor shall be undisturbed, pending further determination of the custody of the child.”

On the present appeal, at the outset in this court, the defendant-in-error, Katherine Downs Berner, the former Mrs. G. R. Berner, Jr., her divorced husband, G. R. Berner, Jr., having meanwhile married another wife, moved this court to dismiss this writ-of-error so presented here by the senior Berners, on the alleged ground that they, the plaintiffs-in-error, have no substantial interest in the subject matter thereof — that is, the trial court’s order dealing with the custody of the minor — nor any right to seek a revision of that order, and are estopped to contend that they have any such interest; in that the stated judgment of July 27 of 1939' establishing the minor’s custody in the defendants-in-error herein, under R.S., Article 4639a, was final and cannot be questioned by anybody, in the absence of unchanged conditions; and, further, because they voluntarily dismissed their intervention plea in such former cause on February 9 of 1940, and also agreed to the former awarding of such custody to the defendants-in-error, after bringing such child into and submitting it to the jurisdiction of the court in that cause.

That motion, having been taken for decision with the cause itself, is refused, under the conclusion that the plaintiffs-in-error do have a substantial interest in the subject matter of this appeal, the trial court having expressly found that it had jurisdiction over the plaintiffs-in-error, and, on that predicate, having decreed that they be deprived of the custody of the child, with added command that they deliver him to the defendants-in-error.

It is true that, on February 9 of 1940, the judge of that court, acting as an individual when he was beyond the territorial confines of the district court of Austin County, abortively signed an order, purporting to be the act of that district court, permitting the Berners to abandon their intervention; but as the judgment now under review correctly determines, that order, entered in such circumstances, was a mere nullity or a func-tus officio act, this present determination herein of its invalidity being correct: “And it appearing unto the Court that the order entered on the 9th day of February, 1940, allowing the intervenors, G. R. Berner, Sr., and wife, Louise Berner, as intervenors, to withdraw their intervention, was made by the Court at a time when the Court was beyond the territorial confines of Austin County, Texas, and without notice to or knowledge of the same in the said Katherine Downs Berner and her attorneys of record, and without her, or her attorneys’ of record consent, and that said order evidenced only a determination of said intervenors to forego the further prosecution of their suit by intervention for the custody of such child, but did not deprive Katherine Downs Berner of her right to affirmative relief as against such intervenors for the custody of such child, and did not deprive this Court of jurisdiction over the person of David Downs Berner and its authority to vest custody of the said David Downs Berner, a minor, as against G. R. Berner, Sr., and wife, Louise Berner, the said intervenors.”

Moreover, even were the defendant-in-error’s assertion that plaintiffs-in-error have no justiciable interest supporting their prosecution of this writ of error correct, in the other circumstances appearing, among them that such grandparents had so submitted themselves and the child (of which they then had possession) in court to its active jurisdiction touching such custody, it is this court’s opinion that the child itself had a most material interest in its grandparents’ being still held subject to the court’s power over its future welfare; because, under all the authorities, including the invoked statute, Vernon’s Ann. Civ. St. Art. 4639a, its interest was the paramount one.

Upon consideration of the appeal on its merits, however, it seems obvious that plaintiffs-in-error have pointed out no sustainable ground upon which the trial court’s judgment may properly be interfered with. They are here not only without any statement of facts, but upon a record which shows that, although they were duly cited to appear and answer the pleadings of the defendant-in-error, Katherine Downs Berner, herein, by which she affirmatively sought for herself the custody of such child against the plaintiffs-in-error, and upon which the trial court rendered the appealed-from judgment, after having heard evidence thereon to its satisfaction, they made no contest, nor presented any evidence at all, as appears from this recitation in the court’s decree, to-wit:

“And although G. R. Berner, Sr., and wife, Louise Berner, and their attorneys of record, _C. C. Glenn and W. D. Bryan, have been served with a copy of the motion herein filed by Katherine Downs Ber-ner asking for judgment, and have been given due notice of the hearing of this cause and the hearing of the matter of custody of David Downs Berner as between G. R. Berner, Jr., and Katherine Downs Berner, and G. R. Berner, Sr., and Louise Berner, and they, and each of them, and their attorneys of record, after stxch notice declined to appear herein in the adjudication of the right to custody of the minor child, David Downs Berner.”

Their position, as appears from their brief and their reply to the opposing motion to dismiss the writ-of-error herein, seems to be that the trial court’s order, quoted supra, in its prior judgment of July 27 of 1939, to quote their own language, “expressly left undecided the rights of exclusive custody asserted by inter-venors (plaintiffs-in-error here) and thus, in legal effect, dismissed without prejudice their petition of intervention”; further, in their exact language, “on February 9, 1940, when no counter-claim, cross-action, or other claim for affirmative relief was pending against them, intervenors (plaintiffs-in-error here) had filed their motion to dismiss their petition of intervention, and pursuant thereto a judgment of dismissal thereof had been duly entered on the same day.”

Upon these positions as a basis they deduce that, upon their own failure to appear at this hearing below on February 16 of 1940, the trial court should have dismissed their petition of intervention, and was without any power to render a judgment against them on the merits of the custody controversy by decreeing, as it did, that they should be divested of all custody in favor of the defendants-in-error.

This court agrees fully with the defendants-in-error that, in the circumstances stated, it is only necessary to invoke the provisions of Vernon’s Ann.Civ. St. art. 4639a, together with the constructions thereof given by the Supreme Court in such cases as Townsend v. Townsend, Tex.Civ.App., 115 S.W.2d 769, and Lakey v. McCarroll, 134 Tex. 191, 134 S.W.2d 1016, 1021, to disclose the vice in their position; in other words, both by the express, terms of this statute and the interpretations thereof by the Supreme Court, the trial court in this instance retained full power and jurisdiction in the matter of the custody of this minor as against all the parties before it at that time, including its grandparents, the plaintiffs in error, notwithstanding their abortive efforts, after so subjecting the child to such complete jurisdiction of that court over it, to dismiss themselves out of that proceeding'; and' that, in consequence, on February 16 of 1940, when it came to render the judgment here under review, it had full power over all the parties at bar, as well as over the child itself, to so finally determine the custody issue.

Wherefore, since all the recitals upon the various features of the decree, as given supra, are unimpeached by anything of record herein, they must be accepted as reflecting the facts underlying each of them; further, the court below having thus had jurisdiction of the parties and of the entire subject matter of-the custody of the minor, he being under 16 years of age, and the challenged judgment being one the court had the power to render under the pleadings, in the absence of a statement of facts, it will be conclusively presumed that the evidence heard fully sustained the court’s action.

These conclusions require an affirmance of the judgment; it will be so ordered.

Affirmed.


text:
    SERVICE FINANCE CORPORATION et al. v. SINGLETON.
    No. 11110.
    Court of Civil Appeals of Texas. Galveston.
    Jan. 9, 1941.
    S. G. Sample, of Edna, for appellants.
    J. W. Ragsdale, of Victoria, and Cullen B. Vance, of Edna, for appellee.
   GRAVES, Justice.

This appeal is from an order of the 24th District Court of Jackson County — made in cause No. 2595 on its docket, styled Jasper Singleton v. Service Finance Corporation, et al. — overruling the pleas of privilege of the defendants in that cause, Service Finance Corporation, a private corporation, and Bert Wilcut, who are the appellants here, to be sued in such cause No. 2595 in the county of their alleged residence, to-wit, Bexar County, Texas.

In such cause, as so filed by the appellee against both appellants in Jackson County, the appellee sought joint and several recoveries ' against them for both actual and exemplary damages for the alleged wrongful conversion by each of them of his automobile on November 28, 1939, in the town of Edna in Jadcson County, Texas, where it was parked unoccupied on the streets thereof, further averring that the corporate appellant had thereafter sold the car and appropriated the proceeds thereof to its own benefit.

Appellants’ pleas of privilege were in statutory form, as was also the controverting affidavit of the appellee, which therein reiterated all the material averments made in his petition; whereupon, the learned trial Judge heard full evidence from both sides upon the issue so joined between them, the appellee having laid the venue of the cause in Jackson County, upon these three grounds:

“1. That defendants committed a crime, offense, and trespass against plaintiff in Jackson County, Texas, within the provisions of Subdivision 9 of Article 1995 of the Revised Civil Statutes of the State of Texas.
“2. That the defendant Service Finance Corporation is a foreign corporation, and the cause of action against it accrued in Jackson County within Subdivision 27 of such Article 1995.
“3. Venue being properly laid as to one defendant herein in Jackson County, Texas, venue as to the other defendant is properly laid in Jackson County, Texas.”

The court filed these findings of fact and law in support of the challenged order:

“Findings of Fact.
“(1) I find that the plaintiff resides in Jackson County, Texas; that the defendant, Service Finance Corporation, is a foreign corporation, duly incorporated, and authorized to do business in Texas, and that service has been had on its accredited agent, designated for the purpose of having process served upon said defendant, Service Finance Corporation. I find that Bert Wilcut resides in Bexar County, Texas, and that service has been had in this cause so far as the plea of privilege is concerned.
“(2) I find that the plaintiff was the owner of a 1938 Chrysler Automobile and was in possession of the same in Jackson County, Texas, at the time alleged in the plaintiff’s petition that such automobile was taken from his possession by the defendants. I find that said car was taken by defendants from the possession of the plaintiff, Singleton, without his knowledge or consent and without any legal process issued by the courts of the country authorizing such taking of said car into their possession. I find that said car was taken from the plaintiff by the defendants in Jackson-County, Texas, on the 28th day of November, 1939. I find that the defendant, Bert Wilcut, was in the employ and was an agent of his co-defendant, Service Finance Corporation, and that at the time said car was actually taken from the possession of the plaintiff said agent and defendant, Bert Wilcut, actually took possession thereof, acting for his co-defendant, said Service Finance Corporation. I find that the value of said car was $700.00 at the .time it was taken from the possession of the plaintiff. I find that the plaintiff bought said car from W. A. Utzman on the 16th day of May, 1939, and paid the entire purchase money therefor and owed nothing on said car at the time he purchased it. I find that W. A. Utzman and W. J. Brewer were dealers in automobiles in Edna, Jackson County, Texas, and they bought the Chrysler car in question from A. M. Stevens in Victoria, Texas, and that there was a balance due on said car owing by W. A. Utzman to defen-ant, Service Finance Corporation, at the time same was taken from the possession of plaintiff of $387.60, payable in monthly installments of $30.00. I find that the defendant, Service Finance Corporation, held the deferred payment notes executed by Utzman on said car and that it attempted to create a mortgage-lien on said car at the time it took over the deferred monthly payment notes due thereon, and recorded a chattel mortgage securing the payment of said indebtedness on said car owing by said Utzman, and caused the same to be recorded in Jackson Count}'-, Texas. I further find that said car was daily exposed for sale by the owners thereof, to-wit: Utzman and Brewer, and continued on daily display for sale .up to and including the time the plaintiff purchased said car from said automobile dealers, Utzman and Brewer, and that the sale was actually accomplished by W. A. Utzman. I further find that after taking said car into its possession, said Service Finance Corporation appropriated the same to its own use and benefit and thereafter sold the same for $350.00. I further find that the plaintiff had no knowledge of the existence and the recording of said chattel mortgage against said car at or prior to the time he purchased the same from Utzman.
“Conclusions of Law.
“From the above facts, I conclude that the plaintiff was a bona fide purchaser of said car at the time he bought the same. I further conclude that the recording of said chattel mortgage by the defendant, Service Finance Corporation, did not create a lien in its favor as against the plaintiff, and that each and all of the provisions contained in said mortgage were unenforcible in so far as the plaintiff is concerned, and that the plaintiff has made out a case against the defendants, which entitles him to have the issues involved in said litigation tried and determined in Jackson County, Texas, under the provisions of Subdivisions 9 and 27, Article 1995, Revised Civil Statutes of 1925 of the State of Texas, and it is so ordered and decreed by the Court.
“Howard P. Green,
“Judge Presiding.”

Appellants, through a number of propositions, ably inveigh against the trial court’s quoted findings of both sorts, contending in substance — in so far as material —that the appellee failed to properly show a wrongful conversion by themselves of the automobile involved; that they had taken possession of it under the recorded chattel mortgage held by the Finance Corporation against Utzman for unpaid purchase-money then due from him to it thereon, which mortgage expressly bound Utzman not to .attempt to sell or dispose of it; that such appellants in consequence had a valid lien .against the car, of which the appellee had at least constructive notice, hence he was not a bona fide purchaser thereof, as found "by the trial court.

There were other protests against rulings upon the receipt and exclusion of evidence, which are not deemed to have involved prejudicial error in the circumstances.

This court is unable to see eye-to-eye with appellants in any of these presentments ; upon the contrary, it is concluded that the quoted findings are sufficiently ■supported in both fact and law, hence they .are adopted as those of this court; as to those of fact, while the evidence was not undisputed in some respects, it would have supported a much stronger finding of a wrongful conversion of the appellee’s car ■than the trial court made, in that, upon that feature it was wholly undisputed — partly ■coming from the appellant Wilcut himself —that this car was ruthlessly dragged by .himself and another from in front of the 'house on the street in Edna, where the ap-pellee’s wife had parked it while visiting there, without advising either appellee or his wife of his purpose to do so, when at ■the time both appellants knew that Utzman ■had disposed of the car and that it was then in the name of and in the hands of the .appellee, whose wife had left it so parked for the time being, having taken the key ■thereof with her into the neighboring house; in this connection, it likewise also .appears that the appellee had then been in possession of the car, without counterclaim from either of appellants, or knowledge of the existence either of themselves or their mortgage, using it as his own, for more than six months after having so purchased the same from Utzman for $700, as found by the trial court; that he had then received a written transfer therefor from Utzman and Brewer, and never knew anything whatever about appellants’ claim until after Mr. Wilcut had so “re-possessed it”, as he put it.

Appellants are inept in these propositions in another respect: they argue, against the showing in the record the other way in both particulars, (1) that “appellee, in his controverting affidavit and also in his original petition, claimed venue in Jackson County under Exception 9 only”; and (2) that “he did not allege, either in his petition or in his controverting affidavit, that the re-possessing of the automobile by appellants was done with the intention on the part of either of the appellants to injure either the property or person of appellee.”

A re-examination of the transcript discloses these inadvertencies, the petition and the controverting affidavit, as indicated supra, showing specifically not alone that the venue was grounded upon the three exceptions stated, but that what this court terms the ruthless taking of this automobile in the circumstances was done with the intention upon the part of both appellants not only to so change the geography of the car itself, but also, to quote from Paragraph VIII of the petition, “was intentionally, wilfully, knowingly and maliciously done with' an utter disregard for the injuries which would result, and which did result, to this plaintiff, and that by reason thereof plaintiff' is entitled to recover exemplary damages in the sum of Twelve Hundred Fifty ($1250.00) Dollars.”

So that, the facts as so found by the court below and so adopted and added to here which thus must be regarded as having been established, bring 'this cause, in this court’s opinion, directly within the provisions of Vernon’s Ann.Civ.St. art. 5497a; that is, under these findings, it must be held that this appellee was a bona fide purchaser of this car, without knowledge or notice of the existence of appellants’ mortgage, arid that when he purchased it the car was being exposed for sale; hence, by the express authority of that statute, such mortgage was, as to him, wholly void. Appellants’ subsidiary contention in this connection, that the appellee in these circumstances was charged with constructive notice of the existence of appellants’ filed mortgage, seems to this court to be in the very teeth of the unconditional declaration of the cited statute that, “any such chattel mortgage shall be void as to bona fide purchasers when such motor vehicles are daily exposed for sale”; especially so, since the appellee was shown to have been wholly ignorant of any facts from which a presumption of constructive notice could have arisen, and since, as already indicated, he was shown to have never had any actual knowledge of appellants’ mortgage, nor to have known of or sustained any relations of any sort with either of them in relation to this car, or anything else; wherefore, no implied or constructive notice is attributable to him; 8 Words and Phrases, Perm. Ed., p. 828, Constructive Notice, and cited authorities; 2 Bouv. Law Diet. Rawle’s Third Revision, p. 2368, Constructive Notice, bottom column 2.

It follows that the judgment should be affirmed; it will be so ordered.

Affirmed.


author: RICE, Chief Justice.

text:
    ANDERSON v. ROY et al.
    No. 2314.
    Court of Civil Appeals of Texas. Waco.
    Jan. 16, 1941.
    Lynn B. Griffith and A. D. Emerson, both of Waxahachie, for appellant.
    J. L. Gammon, G. Goodwin Sweatt, and Will Hancock, all of Waxahachie, for ap- ■ pellees.
   RICE, Chief Justice.

This is an appeal from an order of the district court of Ellis county, after an ex parte hearing, refusing to grant a temporary writ of injunction restraining the sheriff of Ellis county from selling, under order of sale issued out of said court, real property situate in said county.

This suit was brought by Eunice E. Anderson, N. C. M., by her next friend, A. H-Anderson, her husband, as plaintiff, against the sheriff in his official capacity and Rosa Alderman and Henry Alderman as defendants, as a direct attack on a judgment of said court theretofore rendered in a suit for debt and foreclosure brought by the Al-dermans against the Andersons, wherein the Aldermans recovered a judgment for debt against A. H. Anderson and for foreclosure of their liens as against both the Andersons on real property alleged to be the homestead of the Andersons. From the last-mentioned judgment the Andersons appealed to this court; said appeal was dismissed and said judgment became final.

Thereafter, an order of sale was issued directing the sheriff to sell the real property in question in satisfaction of the indebtedness owing the Aldermans by A. H. Anderson. Sheriff Roy executed the writ and advertised the property for sale on March 5, 1940.

On March 4, 1940, plaintiffs filed this cause, alleging that the judgment under which said order of sale was issued was-void or voidable because, among other reasons, Mrs. Anderson became insane prior to the rendition of the judgment and no-guardian ad item was appointed to represent her; that the said real property levied on was the homestead of plaintiffs; praying for a temporary writ restraining the sheriff from selling said property on March 5, 1940; that on final hearing the injunction, be made permanent and that the judgment be set aside as to Mrs. Anderson, and for general relief. This petition was not verified.

On March 5, 1940, on presentation, ex parte, of said petition the court entered an order denying- plaintiffs the restraining order prayed for, to which 'the plaintiffs excepted and gave notice of appeal to this court; and, in perfecting said appeal, filed the affidavit of A. H. Anderson on March 23, 1940, of his inability to pay costs of court or give security therefor.

It appears from an affidavit filed in this court that without notice of said ex parte proceeding, the sheriff executed said order' of sale on March 5, 1940, by selling the real property in question to Rosa Alderman and Henry Alderman, the highest bidders, and by executing and delivering on said date to the purchasers a deed of conveyance to said property, which deed was recorded in the deed records of Ellis county. Appellees’ brief sets forth the same facts as contained in the affidavit referred to above. The verity of the facts stated above is not challenged by appellants.

It appears thus established without dispute that the act sought to be restrained, namely, the execution by the sheriff of Ellis county of the order of sale, has been fully performed. It would therefore be futile to grant appellant the injunctive relief prayed for; and the question as to the correctness of the decision of the trial court has become moot. Brown v. Fleming, Tex.Com.App., 212 S.W. 483; Anderson v. City of San Antonio, Tex.Civ.App., 26 S.W.2d 353; Whitesides v. Wood, Tex.Civ.App., 210 S.W. 333.

The appeal is therefore dismissed.


author: McCLENDON, Chief Justice.

text:
    MARINE PRODUCTION CO. et al. v. SHELL OIL CO. et al.
    No. 9130.
    Court of Civil Appeals of Texas. Austin.
    Jan. 15, 1941.
    Rehearing Denied Eeb. 5, 1941.
    No briefs filed for appellant.

      Greenwood, Moody & Robertson, of Austin, for appellee on motion to dismiss.
   McCLENDON, Chief Justice.

This is a Rule 37 case. The suit was by the Shell (Shell Oil Company, Incorporated) against the Commission (Railroad Commission of Texas and its members in their official capacities) and the Marine (Marine Production Company) to set aside an order of the Commission granting to the Marine a permit to drill two additional wells upon a small tract of land in the East Texas Oil Field. Upon suggestion of Mr. W. Edward Lee, as amicus curiae, and plea of the Commission, the suit was dismissed on the ground that it had been prematurely brought, in that there were then pending in the Commission motions for rehearing of the order filed by the Shell and another' (the Tidewater). Later, upon motion of the Shell, this judgment was amended so as expressly to provide that the dismissal was without prejudice to the Shell to bring another suit. Both the Commission and the Marine gave notice of appeal, and the latter filed an appeal bond in which the Commission as well as the Shell is made payee. The transcript was applied for by Messrs. Lee & Porter, “Attorneys for appellant,” and the case is styled on the back of the transcript, “Marine Production Company, Appellant v. Shell Oil Company, Incorporated et al., Appellees.” We make this latter statement as indicating that thé Commission has probably abandoned its appeal.

The Shell has filed a motion to dismiss the appeal on the ground that there was “no order or judgment that adversely affects the interests of the Marine Produc-' tion Company in the slightest degree,” and that “there is no actual bona fide controversy in this proceeding that is sufficient to confer appellate jurisdiction upon this court.” The motion asserts that another. suit was “immediately filed against the Railroad Commission and the Marine Production Company which is now pending in the District Court of Travis County.” Both the Marine and the Commission have filed waivers of notice of this motion to dismiss the appeal, but neither has filed any reply or objection to the motion. The record shows the following: The order granting the permit was passed April 4, 1940. Motions for rehearing were filed by the Shell April 10th, and by the Tidewater, date not shown. This suit was filed April 30th. The motions for rehearing were overruled by the Commission June 19th. October 8th the Shell filed an amended petition. October 14th the amicus curiae suggestion was filed. This suggestion asserts that the amended petition “constitutes an attempt on the part of said plaintiff to continue a cause in this court when in truth and in fact all prior proceedings had herein were and are void for want of jurisdiction and there was no jurisdiction of this court to continue by such amendment.” Wherefore it is asserted that the suit should be “abated and dismissed for want of jurisdiction,” or, in the alternative, passed for service upon defendants. On the same day the Commission filed its “plea in abatement,” in which it set up the pend-ency of the rehearing motions in the Corn-mission at the time the suit was filed, and prayed that the suit be “abated and dismissed.” No allusion was made to the amended petition in this plea. On the same day the court sustained the suggestion and plea in abatement and thereupon the suit was dismissed. October 22nd the Shell moved to amend the judgment so as to provide that the dismissal be without prejudice to its bringing another suit. November 2nd this motion was granted and the judgment amended accordingly.

Abatement seems to be the proper procedure where an action is prematurely brought. 1 Tex.Jur. p. 131, § 9. It is held suspended on the docket and may be revived if and when the cause for the abatement has ceased to exist. Dismissal finally disposes of the suit and a new suit would have to be filed. If the suit were merely abated, dismissal was not the proper order or judgment. North Texas Coach Co. v. Morten, Tex.Civ.App., 92 S.W.2d 263. Moreover, the cause for abatement had passed when the amended petition was filed, and unless the court was without jurisdiction to entertain the amendment by reason of the pendency of the proceeding before the Commission, clearly the proper order would have been to tax the costs up to the time of the amended petition against plaintiff, and permit the suit to proceed under the amended pleading. Evidently the court took the view that it did not have jurisdiction, and manifestly the Shell acquiesced in this view, at least to the extent that it did not care to take the risk of attempting to proceed under its amended pleading. Its action in moving to correct the judgment so as expressly to provide that the dismissal was without prejudice to its rights to bring another suit was tantamount to a voluntary nonsuit upon its part, which it clearly had the right to take, as there was no affirmative action sought by either defendant. R.C.S. Art. 2182.

Nor do we think the amendment to the judgment of dismissal added anything to the original judgment. That judgment was predicated upon a want of jurisdiction to entertain the suit on the ground that jurisdiction was still in the Commission by reason of the pendency of the motions for rehearing. Clearly, dismissal upon that ground was without prejudice to bring another suit after the ground had ceased to exist upon the Commission’s final order overruling the rehearing motions.

Whether laches or estoppel may be available as defenses to the subsequent suit by reason of the delay in bringing it and what may have transpired between June 19th and filing the subsequent suit are matters which may be litigated in that suit. They are not germane to the instant case, in fact there is nothing in the record from which they could be determined. We, of course, express no opinion upon them.

The motion is granted and the appeal is dismissed. All costs of appeal are assessed against the Marine.

Motion granted.

Appeal dismissed.


author: PRICE, Chief Justice.

text:
    MILLER et al. v. EL PASO COUNTY et al.
    No. 4078.
    Court of Civil Appeals of Texas. El Paso.
    Dec. 19, 1940.
    Rehearing Denied Jan. 9, 1941.

      Gerald C. Mann, Atty. Gen., R. W. Fair-child and Glenn R. Lewis, Asst. Attys. Gen., and Fred C. Knollehberg, of El Paso, for appellant.
    Ernest Guinn, Co. Atty., Frank B. Clayton, City Atty., Thornton Hardie, Eugene Smith, Louis A. Scott, and Potash & Cameron, all of El Paso, for appellees.
   PRICE, Chief Justice.

This is an appeal from a judgment of the District Court of El Paso County by the plaintiffs and the intervener, State of-Texas, in an action wherein the County of El Paso and the individuals composing the Commissioners’ Court and other functionaries of the county were parties defendant. The injunction sought by plaintiffs and the intervener was denied by the court. Intervener and plaintiffs perfected this appeal.

The statement of the nature and result of the suit made by the appealing inter-vener is admirable in clarity and brevity, and we literally adopt same.

This suit involves the constitutionality of Senate Bill No. 18, Ch. 370, p. 1541, First Called Session of the 44th Legislature, Vernon’s Ann.Civ.St. art. 2352b, an act attempting to authorize the levy of a five-cent tax for use in advertising and promotional purposes in “counties * * * having a population of not less than 125,-000 inhabitants and not more than 175,000 inhabitants, and containing k city having a population of not less than 90,000 inhabitants, as shown by the last preceding Federal Census.”

J. R. Miller and other taxpayers filed the suit, the State intervening on their side, seeking an injunction against the continued levy and collection of the tax and to prevent the further expenditure of the sums for the purposes which the statute attempted to authorize. ' It was also sought to enjoin the Tax Collector from demanding and requiring payment of the advertisement tax as a condition to the acceptance of State ad valorem taxes and other county ad valorem taxes. Various provisions of the Constitution were alleged to be violated. After a trial, the court declined to hold the Act unconstitutional and entered judgment ’ for defendants, the plaintiffs and intervener excepting and giving notice of appeal. Findings of fact and conclusions of law were filed. The State excepted to the conclusions.

The case involving the constitutionality of Senate Bill 18, First Called Session, 44th Legislature, Vernon’s Ann.Civ.St. art. 2352b, we deem it appropriate to copy same in full, except the caption and emergency clause. With these exceptions, the Act is as follows:

“Section 1. In all ’counties in this State having a population of not less than 125,-000 inhabitants and not more than 175,000 inhabitants, and containing a city having a population of not less than 90,000 inhabitants, as shown by the last preceding Federal Census,- a direct tax of not over Five (5) Cents on the valuation of One Hundred ($100.00) Dollars may be authorized and levied by the Commissioners’ Court of such county, for the purpose of advertising and promoting the growth and development of said county and its county seat; provided that before the Commissioners’ Court of any such counties shall be authorized to levy any tax for such purpose, the qualified tax paying voters of the county shall by a majority vote authorize the Commissioners’ Court to thereafter levy annually a tax not to exceed Five (5) Cents on the One Hundred ($100.00) Dollars assessed valuation.
“Sec. 2. The amount of money collected from such levy of taxes by the Commissioners’ Court of any such county shall be paid to the Board of County Development in twelve (12) monthly installments as collected. All moneys received by the Board of County Development from such tax shall be expended only for the purposes authorized by this Act; and such Board shall annually render an itemized account to the County Auditor of all receipts and disbursements.
“Sec. 3. There is hereby created in such counties as may vote in favor of this ’-ax a Board of County Development, which shall devote its time and efforts to the growth, advertisement and development of any such county. The Board of County Development shall consist of five (5) members; two (2) to be appointed by- the Commissioners’ Court of such counties, representative of the agricultural interest of such counties, who shall reside outside the county seat of any such county; and three (3) of whom shall be appointed by the Board of Directors of the Chamber of Commerce of the county seat of such county, one of such three members to be a member, in good standing, of organized labor. Said members shall serve for a period of two (2) years from their appointment,’ without compensation, and until their successors are appointed and accept such appointment. Vacancies on such Board shall be filled in the same manner as the original appointments, and by the same agencies.
“All members of such Board of County Development shall be qualified tax paying voters of the county in which they are appointed to serve.”

The assignments and propositions of each appellant, although in slightly dif-' ferent phraseology, are practically the same, and hence will be here treated as though identical throughout.

The State of Texas presents the following as propositions and assignments of error:

“Said S.B. 18 violates Art. 3, Sec. 56, of the State Constitution, in that same is a local or special law applicable to El Paso County only, attempts to regulate the affairs of said county, to create offices therein and to prescribe their powers and duties, and the trial court erred in holding to the contrary.”

Second proposition: “In attempting to confer upon the Board of Directors of the Chamber of Commerce of El Paso, a civic and private organization, the power and authority to appoint three of the five members of the Board of County Development — the body charged with the responsibility of expending the funds raised by taxation under the Act — said S.B. 18 confers upon the persons composing the Board of Directors of the Chamber of Commerce exclusive privileges and violates Article 1, Section 3, of the State Constitution, and the trial court erred in holding otherwise.”

Third proposition: “Said S.B. 18 violates Article 1, Section 18, of the State Constitution, in that the exaction of taxes to be expended by a Board, the majority of whom are not responsible directly or indirectly to the people taxed, is a taking of property beyond and outside of the due course of the law of the land.”

Fourth proposition: “In providing for the appointment of three members of the Board of County Development by the Board of Directors'of the El Paso Chamber of Commerce, said S.B. 18 attempts to make a delegation and surrender of governmental authority, contrary to Article 2 of the State Constitution, and the trial court erred in holding to the contrary.”

Fifth proposition: “In providing that one member of the Board of County Development shall be a member, in good standing, of organized labor, said S.B. 18 violates Article 2, and Article 3, Section 1, of the State Constitution, and the trial court erred in holding to the contrary.”

By three separate Acts the Legislature has sought to confer the power on certain classes of counties to levy a tax for advertising purposes. The first Act was passed by the 41st Legislature, Fifth Called Session, p. 182, Ch. 42, Sec. 1. It now appears as Article 2352a, Vernon's Civil Statutes, and provides, in substance, counties having a population of at least 202,-000 and less than 210,000 inhabitants, as shown by the census of 1920, were authorized to levy a direct tax for advertising purposes. The Act we have here in question was passed in 1935, 44th Legislature, First Called Session, p. 1541, Ch. 370, in Vernon’s Civil Statutes, Article 2352b. The 46th Legislature, Special, p. 966, passed an Act authorizing counties .having a population of not less than 40,-000 inhabitants and not more than 50,-000, and containing a city having a population of not less than 30,000 inhabitants nor more than 40,000 inhabitants, as shown by the last preceding Federal Census, to levy a direct tax for advertising purposes. Article 2352c, Vernon’s Ann. Civil Statutes.

None of these Acts appears to have been called in question before the institution of this case.

In the case of Davis v. City of Taylor, 123 Tex. 39, 67 S.W.2d 1033, the question of the validity of an advertising tax levied by the City of Taylor came before the Supreme Court. The City of Taylor, being a Home Rule City, by amendments to its Charter, authorized the levy of a tax on the property within the city for advertising purposes. In the charter amendment a Board of City Development was provided for substantially along the same lines as the Board for county development provided for in the Act here under consideration. It was held that the City had the power to levy such a tax, and that on so doing Article 8, Section 3, of the Constitution, Vernon’s Ann.St., was not violated, which provides “taxes shall be levied and collected by general laws and for public purposes only.”

Most stressed here is the contention that the law is a local or special law within the meaning of Article 3, Section 56, of the Constitution. The clauses of Article 3, Section 56, invoked are as follows:

“The Legislature shall not, except as otherwise provided in this Constitution, pass any local or special law, authorizing: * * *
“Regulating the • affairs of counties, cities, towns, wards or school districts; * * *
“Creating offices, or prescribing the powers and duties of officers, in counties, cities, towns, election or school districts;”

If this Act is a local or special law, it must fall, as in no other place in the Constitution is authority given to pass a local or special law dealing with the subject matter dealt with by the Act. By its terms the Act is general, in that it operates generally throughout the State as to counties then or thereafter coming within its provisions. We can attach no weight to the contention made by appellants, other than the State, that the words “last preceding Federal Census,” bind the prospective operation of the law in the future as to counties having the population as shown by the 1930 census. Article 23, Section 8, Vernon’s Texas Civil Statutes. In fact, if this construction were adopted, the law would have no prospective extended operation.

In the case of Clark v. Finley, 93 Tex. 171, 54 S.W. 343, 345, principles for determining the character' of a law as to being general, as distinguished from local or special, are set forth. The test there approved is as follows: “A statute which relates to persons or things as a class is a general law, while a statute which relates to particular persons or things of a class is special, and comes within the constitutional prohibition.”

This standard of distinction was set forth by the Supreme Court of Pennsylvania in the case of Wheeler v. Philadelphia, 77 Pa. 338. It was quoted with approval by Judge Gaines in the case of Clark v. Finley, supra.

As we understand the rule, as approved and applied by the Supreme Court of Texas, a law, to be a general law, must apply to a class as such, and not to only a part of such class. In other words, a real class must be involved and not part of a class. By “real class,” we mean a class designated on some reasonable basis having regard to the purpose of the law as distinguished from a class designated on a purely arbitrary basis ; that is, one without logical relationship, to the purposes of the statute.

It is vigorously urged here that El Paso County was at the time of the passage of the Act the only county in the State in which the Act operated. The trial court so found, based on matters of public and general knowledge of which it was proper to take judicial notice.

By the census of 1930 El Paso-County had a population of about 131,000 and the City of El Paso a population of about 102,000. No other county at that time within the State came within the conditions prescribed by the law. However, these facts alone, in our opinion, are insufficient to condemn the law as a local or special law. City of Ft. Worth v. Bobbitt, 118 Tex. 14, 36 S.W.2d 470, 41 S.W.2d 228; O’Brien v. Amerman, 112 Tex. 254, 247 S.W. 270.

By. the terms of the law, if other counties came within the conditions prescribed, such counties might exercise the power conferred by the Act. The conditions were not, theoretically at least, impossible of fulfillment. It is beyond human judgment to foretell the growth of population or decrease thereof, or shifts of population occurring in a great State which, relative to area and natural wealth, is sparsely populated.

Appellants urge further that while population is frequently the basis for classification of counties for many purposes, it is not a proper basis here, but is arbitrary and wayward. That for some purposes of classification it is the proper basis cannot be gainsaid. The case of Clark v. Finley, supra, is an illustration of where same was held to be an appropriate basis. It related to the classification of counties as to fees to be charged by officers for their services. Dry v. Davidson, Tex.Civ.App., 115 S.W.2d 689, writ refused, is an example of a classification of cities as to population.

In support of this contention, and generally in support of its first proposition, the following authorities are cited by appellants: 25 R.C.L. 815, 816; 12 American Jurisprudence, p. 146; Smith v. State, 120 Tex.Cr.R. 431, 49 S.W.2d 739; Randolph v. State, 117 Tex.Cr.R. 80, 36 S.W.2d 484; Clark v. Finley, 93 Tex. 171, 54 S.W. 343; Ft. Worth v. Bobbitt, 118 Tex. 14, 36 S.W.2d 470, 41 S.W.2d 228; Bexar County v. Tynan, 128 Tex. 223, 97 S.W.2d 467.

Before considering the authorities, it is appropriate to discuss the basis of classification adopted in the assailed law and in a measure the factual situation existing at the time of the passage of the legislation. We take it that the situation confronting the Legislature at the time of the passage of 'the Act is of prime importance in determining whether an act is a special or local law or a general law. In a sense population is used as a basis of the classification. In our opinion, however, something more than mere classification based on numbers alone is here evidenced. In order to come under the .law, a county must at all times have more inhabitants in the city than outside the city. This preponderance of population must be concentrated in one city. Referring to the facts involved as to the City and County of El Paso, .and using the Texas Almanac, we find that in 1930 El Paso County had a total population of 131,597, as disclosed by the census of that year; that 102,421 resided in the City of El Paso, 9,181 resided on farms, and 19,995 were nonfarm-ing rural inhabitants. We think it is likewise fair to assume from the above that taxable values within the City of El Paso greatly exceeded those without. Further, the City of El Paso was the only incorporated city or town within the limits of El Paso County; that, aside from the town of Fabens, all banking facilities of the county were situated in the City of El Paso.

Intrinsically and inherently, we think, the law makes a classification of inhabitants as to being rural or urban; and further, that more than half the urban inhabitants must be in one city in the county. This same classification appears in the law passed in 1939 as to the levying of advertising taxes by a county having a population of not less than 40,000 and not more than 50,000, and in which is located a city of not less than 30,000 nor more than 40,-000 inhabitants.

In short, most of the taxable value of the county was in the City of El Paso; most of the inhabitants of the county resided in the City of El Paso. It is obvious that there was a marked identity of interests between the rural residents and the urban population. Judicious advertising of either part would benefit the other; in truth, we think it might be said that it was practically impossible for either part of the county to advertise without advertising the other. The city was the only city in the county, its interest in no way conflicted with the interests of the other portion of the county, or any part thereof. The burden of the contemplated taxation would be borne in a large measure by the inhabitants of the city. This advertising, as contemplated, would be beneficial to the entire county. Reason and justice would seem not to forbid that all of the inhabitants help in bearing the burden.

But why the provision that the minimum of population be 125,000? We think where there is a large population it is reasonable to presume that taxable values bear some relationship thereto. It might be in the county, with a smaller population, without an undue burden, sufficient funds could not be obtained to effectively advertise; it might have been thought-that a city of less than 175,000 inhabitants could not well bear the burden of the expense of such advertising alone. In our opinion it might be logically said, by the exercise of a power to tax all the property in the county, sufficient funds to effectively realize the pux-pose of the Act might be obtained; whereas funds from taxation of the property within the city limits alone might be insufficient for such purpose. Classification is primarily a question confided by the Constitution to the legislative branch of the State Government. It is not for the courts to say this power has been exercised unwisely. If it clearly appears that the action taken is arbitrary and without basis in fact and reason, then, and then only, may the courts say that the Act violates the restrictive provision in the Constitution in question. Clark v. Finley, supra; O’Brien v. Amerman, supra; Gerard v. Smith, Tex.Civ.App., 52 S.W.2d 347; Wood v. Marfa Independent School Dist., Tex.Civ.App., 123 S.W.2d 429.

Perhaps from the very nature of the two municipal corporations a city is endowed with a wider scope of activity than a county in the interests or the promotion of the interests of its inhabitants. If this be true, to our minds, it affords an additional basis for the classification made in the Act in question here. It is fair, we think, to infer that most of the some 19,000 or more rural inhabitants not living on farms have business or employment in the City of El Paso.

Under the conditions laid down in the Act, the interests of the people residing in the city and outside same are peculiarly identical and suggest co-operation,— co-operation between the two municipal corporations, one exercising governmental functions co-extensive with the entire area, and the other in only a part. The Legislature has seen fit to facilitate this cooperation by endowing the county with the power to levy the tax so as to distribute the burden among' all benefiting therefrom. The end sought to be achieved is certainly lawful. In a broad and general sense benefits may accrue therefrom to the entire population of the State.

What we have before said we think in no way conflicts with the reasoning of the cases cited by appellants as to the Act in question being local or special. In Randolph v. State, 117 Tex.Cr.R. 80, 36 S.W.2d 484, it was held that a qualification for a jury service depending on the relative size of counties rendered the law invalid. No argument is needed to support the soundness and justice of this decision. Eligibility of a juror clearly should not be made to depend on the place or the size of the place where he lives. Randolph v. State, supra, and City of Fort Worth v. Bobbitt, supra, each, we think, falls in the same class. The Acts of the Legislature in question there were held unconstitutional primarily because the manifest intent of each was to inflexibly confine the operation thereof to one locality.

Bexar County v. Tynan, supra, struck down the act in question as local or special legislation because the basis of classification bore no reasonable relation to a legitimate object. In effect, the Act reduced the compensation to be paid to the officers of Bexar County below the maximum allowed officers in counties of 37,500 population. Bexar County at the time had a population of 292,533. The effect of this Act manifested beyond question the arbitrariness and waywardness of the classification attempted.

We hold the Act in question here is a general law for the reason there is a reasonable relation between the standard of classification adopted and the object of the Act.

All assignments questioning the validity of the Act as a local or special law within the prohibition of the Constitution are therefore overruled.

It is charged that in conferring power of appointment. on the Directors of the Chamber of Commerce, Article 1, Section 3, of the Constitution is violated. Article 1, Section 3, is as follows: “All free men, when they form a social compact, have equa-l rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges; but in consideration of public services.”

The case of State v. Washburn, 167 Mo. 680, 67 S.W. 592, 90 Am.St.Rep. 430, by the Supreme Court of Missouri, is the only precedent cited in support of the position taken. In that case the Article of the Missouri Constitution dealt with in this respect is as follows: “The General Assembly shall not pass any local or special law * * * Granting to any corporation, association or individual any special or exclusive right, privilege or immunity.” Mo. St.Ann. Const. art. 4, § 53.

The Act before the Missouri Court confined the selection of a minority member of the election commission of three, to one nominated by a committee of the party opposed to the party to which the other two members of the commission belonged. The case holds this was class legislation, — class legislation for the reason that it discriminated 'between political parties. We do not believe the law we have in question here is subject to that vice. We are aware that the Missouri case has bearing on another question herein, and in consideration thereof merits thoughtful and careful consideration.

Article 1, Section 19, of the Constitution is invoked as invalidating the Act in question. It is as follows: “No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchized, except by the due course of the law of the land.”

The protection of the individual rights afforded by this provision is very broad. The Act authorizes the levy, collection of a tax for public purposes, names an agency for the expending of the fund. This agency derives its authority from the legislative Act. Here we can perceive no denial of due process of law guaranteed by the constitutional provision last above quoted.

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

Appellant asserts that the confiding of the appointment of three of the members of the Board of County Development to the Directors of the Chamber of Commerce is violative of the quoted provision of the Constitution. The case of State v. Washburn, supra, is cited in support. In that case the article of the Constitution of the State of Missouri before the court was as follows: “The powers of government shall be divided into three distinct departments — the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, -or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.” Mo. St.Ann. Const, art. 3.

In the essential and vital particulars the two constitutional provisions are almost identical. The Missouri court held that an act providing that a member of an election commission board should be appointed from those suggested by a committee of a political party was tantamount to conferring the power of appointment on the committee of such political party; that in this respect the act violated the constitutional provision above quoted. In the course of the opinion it is said [167 Mo. 680, 67 S.W. 595, 90 Am.St.Rep. 430]: “When, therefore, the general assembly undertook to confer the power to appoint the third election commissioner of Kansas City on a body of men not officially connected with the state government, it undertook, in effect, to create an office to exercise the governmental function of filling by appointment another public office, and not only to create such office, but to name by description the men who were to fill it; in effect, creating the office and appointing the incumbents, making the law and executing it.”

The decision in this case was by a divided court. It must be conceded that there is a division of authority on the proposition. The practice in this State seems to have been somewhat at variance with the doctrine laid down in the Missouri case.

The Texas Relief Commission was provided for by Chapter 37, First Called Session, 43d Legislature, 1933, p. 118, Vernon’s Ann.Civ.St. art. 842b. By the terms thereof the commission of nine provided for were selected and to be selected as follows: Chairman of the Industrial Accident Board, President of the Judicial Council; three to be appointed by the Lieutenant Governor, three by the Speaker of the House of Representatives, and one by the Governor. A member of that Commission had been appointed by the Speaker of the House. A short time after the appointment the Speaker decreed the removal of such appointee and made another appointment, such subsequent appointee taking the oath and undertaking to qualify. Quo warranto proceedings were instituted by the State against the last appointee. The trial court sustained the quo warranto proceedings, and, in effect, ordered the first appointee reinstated. The case reached the Supreme Court on certified questions. Dorenfield v. State, 123 Tex. 467, 73 S.W.2d 83. The judgment of the trial court was in effect approved. It is true, the question of the validity of the appointment of the prior appointee, Holliday, was not discussed — only the validity of his attempted removal was involved. However, it was clearly and unequivocally stated that Holliday, by his appointment by the Speaker of the House, became a State officer. It is true that the Speaker of the House is an officer of the State; in respect to the functioning of the legislative branch of the government, an executive officer. However, .he is in all respects an officer of the legislative branch of the government, and his power and function is as such. In this case, it is true, the appointing power was exercised by one elected -by the people, or rather by their representatives. However, he was not elected with the contemplation that he should exercise other than legislative functions. As stated, the court did not discuss, but assumed the legality of Holliday’s appointment. But the legality, of his appointment was by the judgment vindicated. We do not deem Dorenfield v. State, supra, as conclusive here, but think that it has considerable bearing.

The facts of the case of Davis v. City of Taylor, supra, in respect to the aspect of the instant case which is now under consideration bear close analogy. There, a city was involved. A Board of Development was provided for, consisting of fifteen members. . The City Charter provided that the first Board should consist of the Directors of the Chamber of Commerce, and thereafter the appointment should be from a list named by the Board of Development. Clearly all this would conflict with the constitutional provision as expounded in State v. Washburn, supra. In the City of Taylor case the opinion of the Supreme Court was largely devoted to a discussion of whether the charter provision violated Article 8, Section 3, of the Constitution, that: “Taxes shall be levied and collected by general laws and for public purposes only.” It was held that the charter provision was legal and valid and did not violate that section of the Constitution. We have had the advantage of a certified copy of the assignments of error made by appellants in the application for the writ of error. Some of the assignments, we think, are broad enough to raise the question of the constitutionality of the Act under Article 2 of the Constitution. Writ of error was granted on the ground of the importance of the question. In the course of the opinion this was said [123 Tex. 39, 67 S.W.2d 1035]: “We resolve the other questions raised by plaintiffs in error against them. We do not deem an extended discussion necessary, but, in addition to what we have said, we make reference to the opinion of the Honorable Court of Civil Appeals. Bland v. City of Taylor, 37 S.W.2d 291.” (The case before the Supreme Court bore that title in the Court of Appeals.) Referring to the case in the Court of Civil Appeals, we find this statement from the opinion [37 S.W.2d 294]: “No contention is made that the manner prescribed for their selection was unconstitutional or illegal. On the contrary, both the charter and the ordinance expressly prescribed the mode of selection. Article 1175, R.S., enumerating in particular certain powers that may be exercised by a home-rule city, provides in the first section thereof that one of such powers of the city should be 'the creation of offices, the manner, and-mode of selecting officers aiid prescribing their qualifications, duties, compensation and tenure of office.’ We find nothing in the ordinance adopted which contravenes this or any other statute in so far as the selection of the membership of said board is concerned.”

We are not of the opinion that the case of Davis v. City of Taylor, supra, absolutely forecloses the question here against appellants. However, we think it is strongly persuasive. The powers of the Legislature should be as broad and adequate as those of a city operating under the Home Rule Amendment. Under that amendment a city can exercise such legislative power as is not forbidden by the Constitution or the general laws. The only limit on the Legislature to enact laws is the Constitution of the United States and of the State.

The division of governmental powers into three departments is common to most, if not all, of the State Constitutions. Provision against the exercise by one division of power entrusted to another is likewise characteristic.

In several cases in jurisdictions other than ours the legality of the delegation of the power of nomination and appointment to nonofficial bodies has been recognized. 46 Corpus Juris, pp. 950, 951; McCurdy v. Jessop, 126 Md. 318, 95 A. 37; In re Bulger, 45 Cal. 553; Overshiner v. State, 156 Ind. 187, 59 N.E. 468, 51 L.R.A. 748, 83 Am.St.Rep. 187; State v. Sowards, 64 Okl.Cr. 430, 82 P.2d 324; Bradley v. Board of Zoning Adjustment, 255 Mass. 160, 150 N.E. 892.

In principle we can see little difference in confiding the power of appointment to an office other than the executive department and confiding it to an unofficial body.

The assignment is overruled.

Under the terms of the law one of the three members of the Board to be selected by the Directors of the Chamber of Commerce must be a member in good standing of organized labor. Appellants urge that this provision violates Article 2 and Article 1, Section 3, of the Constitution. In effect, the law makes it mandatory that one member of the Board be a member of a labor union. In a sense, this is a discrimination in favor of organized labor. There is no prohibition against the entire Board being members of organized labor. If the Legislature may make the qualification of one member of the Board depend on his belonging to a labor union, it might, by the same reasoning, provide that no member 'should be a member of organized labor.

Mechem asserts this proposition: “But under our republican form of government, the legislature can not make the holdihg of any particular political opinion a test of the right to hold office.” See Mechem, Public Offices and Officers, 1st Ed., § 96, and cases cited Note 4.

In a general sort of way the'proposition announced by Professor Mechem, somewhat extended, is recognized in the following authorities: 9 Tex.Jur. pp. 551, 552; Nixon v. Herndon, 273 U.S. 536, 47 S.Ct. 446, 71 L.Ed. 759.

We do not think the Legislature may make eligibility to office dependent on religious, social, industrial or economic views. However, it is unnecessary to decide as to this particular provision unless its invalidity would strike down the entire law. The question of eligibility to membership in a Board of County Development is only before us in that aspect. Strike from the law every word creating this provision and there remains a clearly expressed and intelligible act in every respect. This .is one of the tests used in determining whether, a portion of the law being invalid, the entire law must fall. If with the elision a clearly expressed legislative act remains, this is an evidence, not conclusive of course, that the balance of the law should stand. 9 Tex.Jur. 474.

The prime purpose of the Act was to enable counties of the class- specified to levy, collect and expend a tax for advertising purposes. The provision in question is not so associated with the balance of the law that if it be invalid the valid portion must fall with it. We do not hold that the provision in question is unconstitutional. It is unnecessary to decide the question.

The assignment is overruled.

We are not unmindful of the gravity and importance of the questions involved in this case. Our minds are not free from doubt as to the correctness of the disposition of some of same. The Act is entitled to the presumption of constitutionality. If this presumption were clearly overthrown, our duty would be clear. However, our duty is likewise clear to uphold the law unless such presumption of constitutionality be overthrown.

In our opinion, the Act in question was not beyond the power of the Legislature to enact. ■

We desire to express our appreciation to counsel for their candor, sincerity and frankness in the discussion of the important issues involved in this case. On their part an earnest desire for the application of the law to the facts involved has been evidenced throughout.

The judgment of the trial court is affirmed.

HIGGINS, J., not sitting.


author: MONTEITH, Chief Justice.

text:
    BUTLER et al. v. SOUTHWEST DAIRY PRODUCTS CO. et al.
    No. 11084.
    Court of Civil Appeals of Texas. Galveston
    Jan. 9, 1941.
    Rehearing Denied Jan. 30, 1941.

      F. F. Beadle and Ewing Werlein, both of Houston, for appellants.
    Albert J. DeLange, F. A. Stamper, R. P. Beman, Jr., and Emory T. Carl, all of Houston, for appellees.
   MONTEITH, Chief Justice.

This is an appeal from a judgment of the district court of Harris County sustaining a general demurrer and certain special demurrers and exceptions urged by the appellee, Southwest Dairy Products Company'et al., against the action of J. W. Butler et al., appellants.

The action involves the interpretation of a paragraph included in the building restrictions of Eastwood Addition to the City of Houston which provides a method for the extension of said restrictions beyond their primary effective term.

At the time, of the platting of Eastwood Addition in the year 1913, all of the lots therein were subject, by a general instrument filed for record by the subdivider, to residential building restrictions which, among other provisions, prohibited the improvement or use of any lot therein for other than residential purposes. The instrument provided that said restrictipns should remain effective .for a .period of 25 years after the.date of its execution, that is, until January 31, 1938. It included the following provision for the extension of such restrictions for further periods : “4. Said period of 25 years during which the above restrictions shall be in force may be extended as to any or all of said restrictions for an additional period not exceeding 25 years, provided the owners of a majority of the lots in Eastwood who áre actual bona fide-residents thereof shall, prior to January 1, 1935, execute ánd acknowledge an agreement making an extension of said period of 25 years and file the same of record in the office of Harris County, Texas, where conveyances of real estate may be required by law to be filed, and said latter agreement may provide for a time not exceeding 25 years thereafter by which an. agreement signed by said majority may be filed extending for another period not exceeding 25 years after the filing thereof and so may each agreement filed thus provide and he binding upon the owners of all the lots in Eastwood in accordance with the terms thereof.”

The above provision for the extension of said restrictions was embodied in the deed under which the appellees acquired title to the particular lot upon which said restrictions as to residential use are alleged to have been violated by appellees.

This action was originally brought in April, 1936, before the expiration of the primary period of said restrictions. Appellants alleged that they were the owners of lots in and residents of said Eastwood Addition. They complain of the violation of said restrictions by appellees in the construction of a building upon Lot No. 1 in Block No. 38 of said Addition, and the operation therein of a retail ice cream, cold drink and confectionery business.

After the expiration of the primary term of said restrictions, appellants, by amended pleadings, alleged that various persons, whose names were set forth in the pleadings and who were the owners of lots in said Addition, had, within the tim'e provided in the above quoted paragraph thereof, executed and caused to be recorded an instrument extending said restrictions for a further period of 25 years. By their pleadings appellants admitted that, while the persons who had signed the alleged extension agreement constituted more than a majority of the resident lot owners in Eastwood Addition and that they were the owners of more than a majority of the lots in the Addition which were owned by bona fide residents thereof, they did not constitute and include, when taken together, the owners of as much as one-half of the owners of lots therein. They sought an injunction restraining the alleged continued violations of said restrictions.

Appellees, by general and special demurrers and exceptions, raised the question as to whether the extension agreement relied upon by appellants was signed by a sufficient number of persons or by the owners of a sufficient number of lots in said Addition to be effective as an extension of said original restrictions.

The trial court, in sustaining said demurrers and exceptions, held, in effect, that appellants’ petition showed on its face that said restrictions had expired and that said pleading did not show an effective extension thereof. Appellants base their appeal on the action of the trial court in sustaining said demurrers and exceptions and in dismissing their cause of action after they had declined to amend.

The only question presented in this appeal is whether paragraph No. 4 of said restrictions, taken as a whole, is so plain and unambiguous as to be susceptible to only one construction, namely, that any effective extension of said restrictions must have been signed by the owners of a majority of all of the lots in said addition, counting as qualified signers thereof only persons who were bona fide residents of the addition, or whether said paragraph is also susceptible to the construction that an effective extension of said restrictions could have been made under the terms thereof by an agreement signed by the owners of a majority of those lots which were owned by residents of Eastwood Addition, in which event appellants should have been permitted to introduce extrinsic evidence to aid in its interpretation.

It is an important rule of construction in this state that when an instrument in writing is plain and unambiguous parol evidence is not admissible to show the intention of the parties thereto, for the reason that the intention of the parties must be determined by the court as a matter of law from the terms of the instrument. Further, the question as to whether there is an ambiguity in the instrument which would authorize the introduction of parol testimony is a question of law for determination by the court and not by the jury. Graham’s Estate et al. v. Stewart et al., Tex.Civ.App., 15 S.W.2d 72. However, it has been uniformly held that if an instrument is not clearly unambiguous, the rule should not be permitted to defeat an intention and understanding which can be clearly proved by parol.

It is aptly stated by the court in the case of Curry v. Texas Company, Tex.Civ.App., 8 S.W.2d 206, 212, that: “Putting one of two possible constructions on a term in a contract, without permitting the parties to show which was actually in their minds, is taking the chance of enforcing a contract entirely different from that on which their minds met. No harm can be done in discovering and enforcing the real agreement, if such can be done, without doing violence to some principle of transcending importance. The parol evidence rule, like other rules of practice, is designed to effectuate justice, but it is not inflexible, and so many instances have arisen where its strict application would be arbitrary and oppressive that the reports contain a great body of exceptional law.”

The law is well established in this state that where a writing is ambiguous, extrinsic evidence will be received to explain its meaning. Richardson v. Wilson, Tex.Com.App., 213 S.W. 613; Adams v. Maris, Tex.Com.App., 213 S.W. 622; Bryant Co. v. Hamlin Independent School District, 118 Tex. 255, 14 S.W.2d 53.

It is the established rule in this state that, in interpreting the terms of a written instrument, the courts will not only look through the entire instrument but will transpose words or sentences if thereby they can effectuate the intent of the parties thereto without defeating the purpose of the instrument. Darragh v. Barmore, Tex.Com.App., 242 S.W. 714; Commercial Securities Co. v. Rea, Tex.Civ.App., 78 S.W.2d 707; 18 Corpus Juris, p. 260, § 214.

It is also the rule that the intention of-the parties to a written instrument must be gathered from the entire instrument and not from some isolated clause or paragraph thereof, and that therefore the entire instrument must be construed as a whole in order to arrive at their intention. Bumpass et al. v. Bond, 131 Tex. 266, 114 S.W.2d 1172.

In the instant case, while the isolated clause of paragraph 4 of said restrictions which reads: “Provided the owners of a majority of the lots in Eastwood who are actual bona fide residents thereof shall * ⅜ * execute and acknowledge * * when taken alone, might be interpreted as a requirement that, to be effective, an extension agreement must have been executed by persons, all actual bona fide residents of Eastwood Addition, who were, at the same time, owners of a majority of the lots in the addition. However, when taken in connection with the concluding part of said paragraph, in which, in providing for further extension of such restrictions, this language is used: “Said latter agreement may provide for a time not exceeding 25 years thereafter by which an agreement signed by said majority (emphasis ours) may be filed”, said phrase may, very easily, be construed as meaning that a majority of the resident lot owners of Eastwood Addition could, under the terms of said paragraph, extend said building restrictions, since the only previous use of the word “majority” in the entire paragraph is the use thereof in the disputed phrase, above quoted. The next use of the word in the expression “said majority” obviously refers to a majority of owners and not to a majority of lots, in that it provides for “an agreement signed by said majority.”

Under the above facts we think that there is room for reasonable doubt as to the intention of the parties who drafted said restrictions in providing a method for their extension and that appellants should be permitted to show said intention by parol evidence.

Appellants assign error in the action of the trial court in sustaining appellees’ special exception No. 14, for the alleged reason that the court, by his action held, as a matter of law, that the extension provisions of said building restrictions were void as a violation of the rule against perpetuities and as against public policy. This contention must be sustained. )

It is stated in 18 Corpus Juris, 386, that: “A restriction may be vál'id, although unlimited in point of time.” And in 18 Corpus Juris, 401, it is said that: “A building restriction, unless perpetual terminates with the expiration of the time limited for its duration.”

In the case of Strong v. Shatto, 45 Cal.App. 29, 187 P. 159, it was held that a condition in a deed restricting the use of the land and providing for forfeiture and a re-verter to the grantor and his heirs in case of a breach was not void as creating a contingent estate which might vest beyond the limitation of the rule against perpetuities either under the common law or the California Civil Code.

It was held in the case of Abernathy v. Adoue et al., Tex.Civ.App., 49 S.W.2d 476, that there was no merit to a contention made therein that the failure to insert a time limit in restrictions made them void as against public policy.

In the instant case, all right and title to the lots in said addition vested in the purchasers thereof, and the restrictions in question, as covenants running with the land, necessarily passed by conveyance of the title to the property and vested in the purchasers of the property as the title thereto vested.

For the reasons indicated, the judgment of the trial court sustaining demurrers and exceptions to appellants’ trial petition and dismissing the suit is reversed and the cause is remanded for further proceedings in accordance with above conclusions.

Reversed and remanded.