author: LOONEY, Justice.

text:
    McCOMBS et al. v. DALLAS COUNTY et al.
    No. 12981.
    Court of Civil Appeals of Texas. Dallas.
    Feb. 6, 1940.
    Rehearing Denied Feb. 24, 1940.

      McCombs & Andress, of Dallas, Gerald' C. Mann, Atty, Gen., and W. F. Moore and Glenn R. Lewis, Asst. Attys. Gen., for appellants.
    Andrew Patton, Dist. Atty., and E. G-Moseley, David M. Weinstein, Harold Mc-Cracken, and Paul Peurifoy, Asst. Dist. Attys., all of Dallas, for appellees.
    C. T. Gettys and H. Grady Woodruff, both of Decatur, for Wise County, amicus, curiae.
    T. B. Coffield, of Bowie, and H. N. Dear-more, of Montague, for Montague County,, amicus curiae.
    Cecil Murphy and W. D. Garnett, both of Gainesville, for Cooke County, amicus-curiae.
   LOONEY, Justice.

This suit challenges the constitutional' validity of Senate Bill No. 224, enacted at the regular session of the 46th Legislature,. Vernon’s Ann.Civ.St. art. ?294a. The Act purports to grant and donate to the several counties of the State (with exceptions), for a period of five years, beginning with the fiscal year 1940, one-half the ad valorem taxes levied and collected by the State for general revenue purposes, in the respective counties.

The suit was brought by Chas. S: Mc-Combs and Wm. Andress, Jr., resident taxpaying citizens of Dallas County, against the County, the County Judge, County Commissioners, Auditor, Treasurer, County Clerk, and the Tax Assessor and Collector, seeking a permanent injunction against the. enforcement of the Act by the defendants named. The State of Texas, through its Attorney General, was permitted to intervene, alleging substantially the same cause of action, seeking the same relief as that sought by plaintiffs. Plaintiffs and inter-vener contended below, and contend here, that the Act is unconstitutional and void in that, it violates the following provisions of the Constitution, to wit: Sec. 9 of Art. 8; Sec. 1 of Art. 2; Sec. 1 of Art. 3; Sec.. 18 of Art. 5; Sec. 6 of Art. 8, and Sec. 35; of Art. 3, Vernon's Ánn.St.

These questions will be discussed in the order named. But, before beginning the discussion, wish to commend counsel for the parties, as well as amici curiae, for their able and comprehensive briefs and arguments, without which, our labors would have been much more arduous and difficult.

(1) Does the Act violate Sec. 9 of Art. 8 of the Constitution, in that, it diverts one-half the general revenue fund of the State, from the purposes for which the same was created, and bestows sanie upon counties, to be expended by, or under the direction of the commissioners’ courts of the respective counties, for the various purposes named?

Section 9 of Art. 8 of the Constitution limits the amount that may be raised by taxation for general state purposes; also limits the amount that may be raised by the counties for general and specific purposes. The pertinent portion of the section reads: “The' State tax on property, exclusive of the tax necessary to pay the public debt, and of the taxes provided for the benefit of the public free 'schools, shall never exceed thirty-five cents on the one hundred dollars valuation; and' no county, city or town shall' levy inore than twenty-five cents for city 'or county purposes * *

Section 3 of the Act under consideration authorizes the commissioners’ courts of the respective counties to expend the state funds granted, in the following language: “The taxes donated and granted by this Act and collected in each respective county shall be used by the County Commissioners’ Court of said county for any purpose permitted by and not inconsistent with the Constitution of Texas, including the following purposes: (a) lowering the ad valorem tax rate for county purposes; (b) constructing flood control works and improvements in said county; (c) for improvements to prevent soil erosion and for soil conservation purposes; (d) for irrigation and drainage projects; (e) reforestation and road building; (f) conservation and utilization of water; , (g) for projects sponsored by a county in cooperation with the Federal Works Progress Administration or its successors; (h) for the purchase of rights-of-way for public roads; (i) for general relief and charitable purposes; (j) for paying the interest and sinking fund on any outstanding bonded indebtedness of the county; (k) for assisting in the development of navigation; (1) and for any other purpose or purposes not specifically prohibited by the Constitution.”

While it is true, no express prohibition can be- found in the Constitution against the diversion of the state funds in question, and its expenditure for the purposes named, yet we think the conclusion inescapable that such is impliedly prohibited. If not impliedly prohibited, why should separate funds have been created by the Constitution, and limitations prescribed on the rates of taxation in support of each? It is said in 12 C.J. 699, Sec. 41, that: “It is not always necessary, in order to render a statute invalid, that it should contravene some express provision of the Constitution; if the act is inhibited by the general scope and purpose of the instrument, it is as much invalid as though prohibited by the express letter of some of its provisions. Therefore the implied power and restraints to be found in a constitution are a very important part of it.”

■ The case of Carroll v. Williams, 109 Tex. 155, 202 S.W. 504, involved the transfer by the commissioners’ court of money from the county’s general fund to its road and-bridge fund. The Supreme Court held that this could not be done, saying, in substance, that: Article 8, Sec. 9 of the 'Constitution was designed to limit not only the taxes which could be levied by a county for the several purposes mentioned, but the'amounts which it was authorized to expend for such purposes from money raised by taxation. It inhibits such expenditure in excess of the fund which it could lawfully raise for the purpose through the device of transferring thereto money from other funds and raised by taxation for other purposes. Saying that, it appears to' be the intention of Art. 8, Sec. 9, of the Constitution, that funds raised by taxation for the specific purposes therein enumerated should be expended for such purposes, and are not authorized to be transferred to other funds under the powers conferred by Art. 1440, Rev. Stats. The fact that the road and bridge fund as increased by transfer thereto of funds raised by taxation for general county purposes did not exceed the amount which might have been lawfully raised by taxation fo.r road and bridge purposes under the maximum taxes authorized, but not levied, did not render such transfer lawful. The amount which a county could lawfully expend annually from a given fund created by the Constitution out of1 taxes which it authorized might be increased by an unexpended balance of such fund brought over from the previous year, but not by transfer from another''fund creatT ed by the Constitution for other purposes. The same principle was applied by the Supreme Court in Mitchell County v. City National Bank, 91 Tex. 361, 43 S.W. 880, in refusing to uphold, bonds issued by the county, ostensibly for road and bridge purposes, but intended to be used in liquidating other indebtedness outstanding against the county. The court held that, because of the evident evasion, the bonds were invalid in the hands even of an innocent purchaser.

It will be observed that the same constitutional provision, Sec. 9, Art. 8, authorizing and limiting the levy of not exceeding thirty-five cents on the one hundred dollars valuation for general state purposes, also authorizes and limits the amount of taxes that may be raised for different county purposes. As stated in 11 Tex.Jur. p. 610, Sec. 78: “The immediate purpose of the’ provision is to limit the amount of taxes that may be raised for these several purposes, respectively; but it is also designed to inhibit excessive expenditures for any such purpose, and to' require that any and all moneys raised by taxation for any purpose shall be applied to that particular purpose and to no other.”

The grant of' money to the counties not. being authorized by any special provision of the Constitution, for reasons just stated, we think the Act is unconstitutional.

_ (2) Appellants’ second, third and fourth grounds of attack on the Act are that, it violates Sec. 1, Art.'2, Sec. 1, Art. 3, and Sec. 18, Art. 5, of the Constitution, in that, if confers upon the commissioners’ courts of the several counties legislative power, and vests in said courts jurisdiction over matters other than county business.

Section 1, Art. 2 of the Constitution, distributes the powers of government, and Sec. 1 of Art. 3 vests in the Legislature the legislative power of the State.

Although by specific terms the Act grants to the counties for five years, one-half the state’s general revenue collected for various state purposes, yet it is devoid of any regulatory or administrative provision in regard' to the ways and means of accomplishing the purposes for which the money is appropriated; thus, in effect, confers upon, each commissioners’ court,' carte blanche,, legislative authority to adopt its own ways and means of furthering and consummating the various, enterprises and purposes named in the Act; and the ways and means adopted by the several commissioners’ courts mayj and doubtless would be as variant as the counties involved are numerous. Aside from the granting provision (Sec. 1) and the designated purposes for which the money may be expended (Sec. 3), the Act is a mere skeleton and incomplete.

The rule is announced in 11 Am.Jur. 924, Sec. 215, that: “One of .the most important tests as to whether particular laws amount to an invalid delegation of legislative power is found in the completeness of the statute as it appears when it leaves the hands of the legislature. The generally recognized principle is that a law must be so complete in all its terms and provisions when it leaves the legislative branch of the government that nothing is left to the judgment of the electors or other appointee or delegate" of the legislature. The rights, dutiesj privileges, or obligations granted or imposed must be definitely fixed or determined,.or..the rules by which they are to be fixed and determined must be clearly and definitely established, when the act is passed by the legislature and approved by the governor. The law must be perfect, final, and decisive in all of its parts, and the discretion which is given must relate only to execution.”

The case of Peabody v. Russel, 302 Ill. 111, 134 N.E. 150, 152, 20 A.L.R. 972, from the Supreme Court of Illinois, is very much in point. The Legislature appropriated to the Department of Finance half million dollars “to be apportioned between the executive, judicial and military departments of the State government and allotted as emergencies arise by the director of finance with the approval in writing of the Governor”. The Supreme Court declared the appropriation unconstitutional and, among other things, said: “Manifestly such an appropriation has neither certainty as to the department by which the appropriation is to be used nor as to the purpose for which it is to be expended. * * * ‘The General Assembly must determine to what objects and purposes money of the state shall be appropriated, and cannot bestow that power upon any person or board for the exercise of discretion of the donee as to the objects for which the money shall be expended’. * * It is clear from the item of the Appropriation Act objected to that the appropriation itself is not a complete act of legislation, but seeks to delegate to an administrative officer the specification of ob-. jects and purposes and the determination of distinct items therefor. The Constitution expressly requires these acts to be performed by the General Assembly itself. * * * In our judgment, if this appropriation for the benefit of either one, two, or three departments of the state government, without specifying the definite purpose or object of the appropriation, can be sustained, then such appropriations for every branch of the state government just as indefinite must be sustained, and we see no legal reason why, if $500,000 could be thus appropriated, even larger sums might not be appropriated to various state departments in the same indefinite and uncertain manner.”

Whether or not an act contains a delegation of legislative power, must be tested by its own terms. In the following cases, the question was considered and discussed: Green v. City of Amarillo, Tex.Civ.App., 244 S.W. 241, affirmed by the Supreme Court, Tex.Com.App., 267 S.W. 702; Stephenson v. Wood, Tex.Civ.App., 35 S.W. 2d 794; Brown v. Humble Oil & Refining Co., 126 Tex. 296, 83 S.W.2d 935, 99 A. L.R. 1107; State ex rel. Perkins v. Hardwick, 144 Kan. 3, 57 P.2d 1231, by the Supreme Court of Kansas; State ex rel. Maxwell Hunter, Inc. v. O’Quinn, 114 Fla. 222, 154 So. 166, by the Supreme Court of Florida.

The Constitution, Sec. 18, Art. 5, provides that: “* * * The county commissioners so chosen, with the county judge, as presiding officer, shall compose the County Commissioners Court, which shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of the State, or as may be hereafter prescribed”.

In the early case of Sun Vapor Electric Light Co. v. Keenan, 88 Tex. 197, 30 S. W. 868, after referring to the provision of the Constitution just quoted, Chief Justice Gaines used the following pertinent language; he said: “The powers which the legislature may require them [commissioners’ court] to exercise are confined by this section to county business, and we think it clear that the administration of the effects of a dissolved corporation and the payment of its debts are not such business.” To the same effect, see Ranken v. McCallum, 25 Tex.Civ.App. 83, 60 S.W. 975, writ refused.

So, we conclude that the Act confers upon the commissioners’ courts of the several counties, legislative authority with reference to the accomplishment of the various purposes for which the money was appropriated, also confers upon said courts jurisdiction over matters, other than strictly county business, and for these reasons, we hold the Act unconstitutional and void:

(3) Appellants also contend that, in attempting to draw money from the State Treasury, without a specific appropriation and for a longer term .than two years, the Act violates Sec. 6 of Art. 8 of the Constitution.

Section 1 of the Act, among other things, provides that, “The taxes hereby donated and granted shall be levied and assessed and collected as now provided by law, except that the Assessor and Collector of Taxes in each respective county shall forward his reports to the Comptroller of Public Accounts as provided by law and shall pay over to the Treasurer of the county one-half (½) of all moneys collected by him at the end of each month and during the period covered by this donation, except such amounts as are allowed by law for assessing and collecting the same, and shall forward a duplicate copy of the receipt given him by the County Treasurer for said money to the Comptroller.”

We do not think that the attempted arrest of the money and its diversion from the State Treasury to those of the counties, as provided in the Act, can be given the effect of changing the nature of the fund, or of exempting the Act from the provisions of Sec. 6 of Art. 8 of the Constitution. As heretofore shown, one-half the State ad valorem taxes, levied and collected for general purposes, is appropriated to the counties for a period of five years, to be expended, by or under the direction of the respective commissioners' courts, for any purpose, state or county, not inconsistent with, or expressly prohibited by the Constitution. But the Act fails to specify any particular purpose or purposes for which the money must be spent, leaving the selection of the subjects and the amount to be allotted to each, to the uncontrolled discretion of the respective com-' missioners’ courts. And furthermore, the amounts appropriated, necessarily, are indefinite, and incapable of being rendered certain, in that, the rate of taxation (an-essential element in determining the amount of tax money to be collected) has not yet been ascertained and fixed, under rules prescribed by Arts. 7041-7044, for either of the five years involved.

The term “specific appropriation” used in this connection has been construed by the courts of this and other states. One of the latest cases is that of National Biscuit Co. v. State, 129 S.W.2d 494, 497, decided by the Austin Court of Civil Appeals. By a concurrent resolution, the Legislature authorized suit by the Biscuit Company, to recover from the State the amount of certain franchise taxes theretofore paid under unconstitutional statutes. The Legislature also attempted to make an appropriation to pay any judgment obtained against the State. In holding the appropriation invalid under Sec. 6, Art. 8 of the Constitution, the Court said: “The attempted appropriation would also appear to contravene Sec. 6 of Art. 8 of the Constitution, Vernon's Ann.St., providing that ‘No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law;’ etc. While this provision was designed to safeguard moneys properly placed in the State Treasury from being unlawfully withdrawn therefrom; it also discloses a purpose of the framers of the Constitution to require that appropriations made by the Legislature be made specific, and that they be made by law. A mere attempted appropriation which names no sum, prescribes no limit as to amount, by resolution and not by law, manifestly does not meet the requirement.” A writ of error was granted in the case and in holding the appropriation feature of the resolution unconstitutional and void, the Supreme Court, among other things, said: “The State contends that this attempted appropriation violates both of the above-mentioned constitutional provisions. As just stated, one of the provisions of Section 6 of Article 8 of our Constitution requires all appropriations of money out of the State Treasury to be specific. It is settled that no particular form of words is required to render an appropriation specific within the meaning of the constitutional provision under discussion. It is sufficient if the Legislature authorizes the expenditure by law, and specifies the purpose for which the appropriation is made. An appropriation can be made for all funds coming from certain sources and deposited in a special fund for a designated purpose. In such instances, it is not necessary for the appropriating Act to name a certain sum or even a certain maximum sum. 38 Tex.Jur. pp. 844-:-845, Sec. 27, and authorities there cited. In spite of the above rules of law, we think that this attempted appropriation falls short of meeting the constitutional requirement that it be specific. It is absolutely conditional or contingent as to whether it will ever become effective, depending on when and if a final judgment shall be awarded. It is indefinite as to amount, or even as to a maximum amount, leaving that matter, not to the Legislature, but to another branch of the Government, the courts to determine. We do not believe that such an appropriation of money out of the State Treasury meets the constitutional requirements that it shall be specific.” National Biscuit Co. v. State, 13S S.W.2d 687, 693, not yet reported in State -reports.

The Florida Supreme Court, in State ex rel. Bonsteel v. Allen, 83 Fla. 214, 91 So. 104, 106, 26 A.L.R. 735, defining the phrase said: “It is a setting apart of money formally or officially for a special use or purpose * * *, and, where that is-done by the Legislature in clear and unequivocal terms, it is an appropriation.” The California Supreme Court, in Stratton v. Green, 45 Cal. 149, said that the phrase means, “an Act by which a named sum of money has been set apart in the treasury and devoted to the payment of a particular claim or demand.” The Constitution of the State of Nebraska contains a provision very similar to the provision of our Constitution. The Supreme Court of that State, in a case reported, State ex rel. Cline v. Wallichs, 15 Neb. 609, 20 N.W. 110, said that: “A specific appropriation is one expressly providing funds for a particular purpose. There can be no implied appropriation of money under our constitution, nor any claim audited, unless the items of the account are set out. State [ex rel. Squires] v. Wallichs, 14 Neb. 439, 16 N.W. 481. There is also a provision that ‘no money shall be diverted from any appropriation made for any purpose.’ The legislature possesses no power to make an implied appropriation, and, there being no express appropriation of the temporary school fund for the purposes named, the auditor had no authority to draw a warrant.” In the case of Davis v. Steward, 198 ICy. 248, 248 S.W. 531, 532, the Court of Appeals of Kentucky said that: “An appropriation by the Legislature is the setting apart of a particular sum of money for a specific purpose”. In Jennings v. Kinsey, 308 Mo. 265, 271 S.W. 786, 788, the Supreme Court of Missouri used the following language: “To appropriate means to allot or assign, to set apart, or to apply to a particular use or a purpose. 1 Words and Phrases [First Series], p. 471; 1 Words and Phrases, Second Series, 257; .4 C.J. pp. 1459, 1460. See Pryor v. Kansas City, 153 Mo. 135 * * *, 54 S.W. 499, 502, where this court quoted from Webster’s Dictionary the definition of ‘appropriate’ as follows: ‘To set apart, or assign to a particular person or use in exclusion of others; to use or employ for a particular purpose, or in a particular case; to appropriate, to devote to, as to apply money to the payment of a debt.’ ” Also see Hollinger v. King, 282 Pa. 157, 127 A. 462, from the Supreme Court of Pennsylvania, and Peabody v. Russel, supra.

It is contended, however, that our Supreme Court, in several instances, has held that similar appropriations by the Legislature were not controlled by the provision of the Constitution under consideration; notably, in the case of Aransas Pass v. Keeling, 112 Tex. 339, 247 S.W. 818, 820, the Supreme Court held that, a grant for sea wall purposes, under Art. 11, Sec. 8, of the Constitution, was not limited or controlled by Sec. 6 of Art. 8, Judge Greenwood saying: “We have concluded that section 8 of article 11 of our Constitution expressly authorized the Legislature to grant such aid to the counties and cities on the Gulf coast in the construction of sea walls and breakwaters, as was extended to Aransas Pass. * * ⅜ Keeping in mind these related provisions of the Constitution, it seems clear to us that 'it was the design of section 8 of article 11, when it was adopted, to empower the Legislature to give the state’s aid, by grant of the public domain or state taxes, or in any other appropriate manner, to the construction by coast cities and counties, through bond issues, of protective sea walls and breakwaters; and that, in the exercise of this power, the Legislature .was not limited by the terms of section 6 of article 8, forbidding the appropriation o.f public money for a longer period than two years.” Also, in the case of Brazos River etc. Dist. v. McCraw, 126 Tex. 506, 91 S.W.2d 665, 674, the Supreme Court made a similar holding with reference to a grant made by the State under the calamity clause of Art. 3, Sec. 51, of the Constitution. After referring to the opinion of Judge Greenwood in the Aran-sas Pass case, Chief Justice Cureton used the following language: “The allocation involved in the instant case is by virtue of section 51, article 3, of the Constitution, which, authorizes ‘aid in cases of public calamity.’ It is obvious that the power of the Legislature in so far as here involved is just as broad under section 51, article 3, as under section 8, article 11, the constitutional provision before this court in the Aransas Pass Case; and if section 6, article 8, of the Constitution was not a limitation in the one case, it cannot be held to be so in the other.” We think it obvious that, in each of the cases mentioned, the Supreme Court would have held Sec. 6 of Art. 8 applicable and controlling, but for the existence of other special provisions, . for in each, the Supreme Court based its holding on the idea that, the Act then under consideration was authorized by a special provision of the- Constitution, therefore was not limited by Sec. 6 of Art. 8.

As the Act under consideration cannot, in our opinion, be justified under either Sec. 8 of Art. 11 as a sea wall appropriation, or under Sec. 51 of Art. 3, as a public calamity appropriation, or under any other special provision of the Constitution, it follows, necessarily, that it is controlled and limited by the provisions of Sec. 6 of Art. 8; and, as the appropriation is riot specific, and made for a longer term than two years, we think the Act must be condemned as unconstitutional and void.

(4) Appellants also contend that the Act violates Sec. 35 of Art. 3 of the Constitution, in that, it contains more than one subject. We do not regard the reported cases on the subject of any particular value as authorities, except as general principles and guiding rules are announced. The fundamental reason for such a provision, as- stated in Cooley’s Constitutional Limitations (6th Ed.) p. 170, arose from: “The practice of bringing together into one bill subjects diverse in their nature and having no necessary connection, with a view to combine in their favor the advocates of all, and thus secure the passage of several measures, no one of which could succeed upon its own merits, was one both corruptive of the legislator and dangerous to the State.” And in R.C.L. vol. 25, pp. 843, 844, sea 90, it is said that: “The word ‘subject’ is used to indicate the chief thing to 'which legislation relates, * * *. The ‘subject’ of an act is the matter or thing forming the groundwork of the act, which may include many parts or things, so long as they are all germane to it and are such that if traced back they will lead the mind to the subject as the generic head.”

The different purposes for which the tax money appropriated to the counties may be spent, named or comprehended within the general terms of Sec. 3 of the Act, are numerous and variant, each, in our opinion, being a separate legislative subject, within the meaning of the Constitution. An act that simply appropriates money, without stating the purpose for which the appropriation was made, in our opinion would be incomplete, and an ineffectual piece of legislation. The purpose, the enterprise to be furthered or accomplished, constitutes and is the real subject of legislation; the amount of money allocated being simply an incident. The Act, in our opinion, contains as many separate and distinct legislative subjects, as the purposes are numerous for which ■the Legislature authorized the expenditure of the money.

Appellees insist, however, and argue (see their brief, p. 156) that the subject of the Act is, the “remission” of taxes and that, the purposes for which the money may be expended are not properly a part of the subject matter of the Act. The fault with this contention is that, the Act does not pretend to remit taxes; nor, in fact, could taxes be remitted under its terms, but rather, would be collected, and after being collected, diverted from the State Treasury and paid into the Treasuries of the respective counties. Remission is forgiveness, pardon; refraining from exacting, or enforcing, as the remission of a penalty. The provisions of the Act forbid the idea that its subject matter is the remission of taxes. The Act purports, and is, an attempt to appropriate moneys belonging to the general fund of the State, to the respective counties, to be expended for named and unnamed purposes; each, in our opinion, constitutes a separate legislative subject, hence it follows that, in our opinion, the Act offends Sec. 35 of Art. 3 of the Constitution, and for that reason also, is void.

The burden of appellees’ contention is that, Senate Bill 224 does not offend the Constitution in either respect as contended by appellants. In preceding pages, we have discussed these questions and reached conclusions contrary to the contention of appellees. They also contend that, the purposes named and unnamed in the Act, for which the Legislature granted money to the counties, are governmental in nature, and affected with a public interest, therefore, the Legislature was well within its constitutional authority in enacting the same. We think it may be conceded that, in a general sense, the purposes for which the Act grants money to the counties, mentioned in Sec. 3, are governmental in nature, and affected with a public interest, as contended; but, even so, that fact would not justify the Legislature in disregarding constitutional rules of legislative procedure and implied prohibitions against its authority to act in the manner attempted. The objections urged to the Act are not leveled, so much at the want of power in the Legislature to authorize the expenditure of public moneys for governmental purposes, as at its disregard of the prescribed course or mode of legislative procedure, and the violation of restrictions against accomplishing the purposes indicated by the means adopted.

We have reached the conclusion that the Act offends the Constitution in the several respects heretofore mentioned. In view of the disposition made of the case, we do not deem it necessary to discuss or decide either of the other questions presented. It follows therefore, that, in our opinion, the Act is void, and it is so declared. The judgment of the trial court is reversed and judgment is here rendered for appellants, perpetually enjoining appellees from acting under, or attempting to enforce the Act in question.

As the Supreme Court has jurisdiction of the case, and an application for writ of error may be promptly presented, ap-pellees’ motion to certify questions of law involved in this case is overruled.

Reversed and rendered.

On Motion for Rehearing.

In their motion for rehearing, appellees request additional conclusions of fact and law, calling our attention to Art. 1873, R.C. S., providing that, within thirty days after a decision, the Court of Civil Appeals shall make and file a conclusion of fact and law upon each material point assigned as error.

We have heretofore filed our conclusions of law (the opinion) on all material questions of law brought up for review, 'but did not file conclusions of fact, and must decline to do so, for the reason that, in our opinion, this is not a fact- but altogether a law case.

In Hurt v. Cooper, Tex.Civ.App., 113 S.W.2d 929, 942, quoting from and citing pertinent authorities, we said: “ ‘Whether a seeming Act of a legislature is or is not a law is a judicial question to be determined by the court and not a question of fact to be tried by a jury, even though a determination of the question may involve a finding of fact.’ 59 C.J. 621, § 181. ‘The right and duty of the judiciary to take jurisdiction and decide cases when constitutional questions are presented, are both imperative and inescapable * * *.’ 12 C.J. 699 § 40. Also see Blessing v. Galveston, 42 Tex. 641, 660; Walnut v. Wade, 103 U.S. 683, 26 L.Ed. 526; South Ottawa v. Perkins, 94 U.S. 260, 24 L.Ed. 154.”

In 6 R.C.L. sec. 112, pp. 112, 113, the same doctrine is announced, in the following language: “Judicial Determination of Facts. — The constitutionality .of a. law is not to be determined on a question of fact to be ascertained by the court. If under, any possible state of facts an act would be constitutional, the courts are bound to presume that such facts exist; and therefore the courts will not make a separate investigation of the facts, or attempt to decide whether the legislature has reached a correct conclusion with respect to them. Accordingly the validity of an enactment cannot be made to depend on the facts found on the trial of the first case involving the validity of such statute. If the rule were otherwise, the trial of the main issue would necessarily be delayed until the preliminary fact on which the validity of the contested legislative act depended should be first tried and determined on testimony; and, since this testimony might be different in different cases, there would be involved an absurdity of declaring the law constitutional one day and unconstitutional the next. * * ” We therefore deny the request of appellees for additional conclusions.

As stated in our original opinion, we think that, in a general sense, the purposes for which the Act under consideration grants money to the counties (mentioned in Sec. 3) are governmental in nature and affected with a public interest. We are also of opinion that, the Legislature is not forbidden to use counties as agencies for the discharge of state obligations, provided, of course, the legislation otherwise is free from constitutional objections. For these reasons, we did not deem it necessary to comment upon the numerous authorities cited by appellees in support of these propositions.

However, a few cases cited by appellees, not heretofore commented upon, doubtless are sufficiently in point to warrant comment and differentiation. The acts of the Legislature involved in Bexar County v. Linden, 110 Tex. 339, 220 S.W. 761, and in Road Dist. No. 4, etc. v. Allred, 123 Tex. 77, 68 S.W.2d 164, dealt with statutory, as distinguished from constitutional, funds. As the funds were created by statute, the Legislature could direct their expenditure for any governmental purpose, without reference to the particular limitations and restrictions applicable to the Act under consideration." The Act involved in Highway Commission v. Vaughn, Tex.Civ. App., 288 S.W. 875, being authorized by Art. 3-, Sec. 56, Subd. 6, oí the Constitution, for the erection of an interstate bridge, was an exception to the general rule, and belongs in same category with Aransas Pass v. Keeling, and Brazos River etc. Dist. v. McCraw, commented upon in the original opinion. We do. not think the case of Lower Colorado etc. v. Mc-Craw, 125 Tex. 268, 83 S.W.2d 629, is even remotely in point, as the Act under consideration there, provided for the payment of the bonds of the reclamation district solely from its own revenues, — hence not analogous to the provisions of Senate Bill 224, Vernon’s Ann.Civ.St. art. 7294a, that attempts to divert a constitutional fund, created for, and necessarily limited to, certain state purposes.

After due consideration, we overrule ap-pellees’ motion for rehearing.

lips Petroleum ' Company.” Mo.St.Ann. § 4048, p. 2849.


source: Caselaw Access Project

author: GERMAN, Commissioner.

license: Public Domain

text:
    STATE et al. v. BOYD, District Judge, et al.
    No. 7626.
    Supreme Court of Texas.
    Feb. 28, 1940.
    Gerald C. Mann, and Ocie Speer, A. S. Rollins, Geo.. W. Barcus, Lloyd Armstrong, and W. J. Fanning, Assts. to Atty. Gen., for relators.
    Joe F. Goodwin, of Austin, for Banking Department.
    Kenneth Krahl, J. L. Webb, and A. J. DeLange, all of Houston, for respondent Building & Loan Ass’n.
    A. B. Gerland, of Houston, for inter-veners.
    C. H. Chernosky, of Houston, for respondents.
   GERMAN, Commissioner.

This action involves a conflict of jurisdiction between two district courts. There is practically no dispute over the law, but the parties differ as to the meaning of the facts. It becomes necessary to set out a rather extended statement of what has transpired in the respective courts, and this will, as we believe, lead to a .solution of the difficulties.

On the 8th day of April, 1939, the Banking Commissioner of the State of Texas, by virtue of Article 881a-32 of the Building and Loan Association Laws of the State, gave notice to Kenneth Kráhl, as Vice-President and Director of the Lone Star Building and Loan Association, to Victor Daily, as Secretary-Treasurer and Director of said association, to Dr. L. W. Chilton, Sr., as President and Director of said association, to W. J. Howard, as Director, to Frank M. Gossett, as Director, to J. I. Weatherly, as Director, and to Paul P. Parker, as General Manager of said association, to appear at a hearing to be held in the City of Austin on April 24, 1939, to show cause why they should not be removed from their respective positions with said association. The notice set forth various reasons and grounds why the Banking Commissioner considered that just cause existed for their removal. The provision of the statute under which the Banking Commissioner was proceeding is as follows: “The Banking Commissioner of Texas may remove any officer or director of any such building and loan association for just cause specified by him and after ten (10) days notice in writing to such ■ person. Any officer or director so notified of the intention of the Commissioner and feeling himself aggrieved by such removal shall have a right to apply to the District Court of his residence, for a writ of injunction to restrain such removal, as in ordinary injunction cases.”,

Harris County Case.

On April 20, 1939, the Lone Star Building and Loan Association, together with the parties above named, and with V. R. Kobersky, Louise Reidel and A. J. Reidel, alleging that they were stockholders in said association, as plaintiffs, filed suit in the District Court of Harris County against Z. Gossett, Banking Commissioner of the State of Texas; said suit being No. 256,964 on the docket of said district court. The purpose of the suit is reflected by the prayer of plaintiffs as follows : “Wherefore, premises considered, plaintiffs pray that the defendant be cited to appear and answer herein and that this court issue a temporary restraining order enjoining said defendant from taking any action looking to the removal of the officers and directors of the association without court procedure, and restraining and enjoining said defendant from removing the officers and directors of this association or in any manner interfering with their functions, until and after hearing in this court, and that upon final hearing of this cause said injunction be made permanent, and for such other and further relief, special and general, in law and in equity as they may be justly entitled to receive.”

Upon the same day, and without notice, Judge Ben F. Wilson, Judge of the 61st Judicial Court of Harris County, entered the following order:

“The within petition having been presented to and heard by the Judge of the 61st Judicial District Court of Harris County, Texas, in Chambers, this the 20th day of April, A. D. 1939, and it appearing to him from the facts stated therein that the applicants are entitled to a temporary restraining order; that the same is within the complainant's allegations and prayer; that delay will not be injurious to any party and that justice may be subserved:
“Therefore, it is accordingly ordered that the Clerk of this Court issue a temporary restraining order, operating until and pending the herein below order, restraining the defendant from taking any action, looking to the removal of the said Kenneth Krahl, Victor Daily, Dr. L. W. Chilton, W. J. Howard, Frank M. Gossett, and Paul P. Parker, as officers and directors of the Lone Star Building & Loan Association, and restraining and enjoining the said defendant from in any manner interfering with the rights of the aforesaid persons as officers and directors of the said Association from performing their duties as such officers and directors under the law and under the By-laws of the Association, upon the plaintiffs executing a bond with two or more good and sufficient sureties, or a surety bond, in the sum of $100.00, conditioned as required by law; the Clerk shall quote this fiat and embody such order or writ, which shall also require the defendant to appear in the court room of this court on the 9th day of May, A. D. 1939, at 9 o’clock A. M. to show cause why the injunction - should not be made ' permanent. Such writ shall be served by the Sheriff of Travis County, Texas. . •
“ * * * Now, therefore, you are hereby commanded to desist and refrain from taking any action, looking to the removal of the said Kenneth Krahl, Victor Daily, Dr. L. W. Chilton, W. J. Howard, Frank M. Gossett, and Paul P. Parker, as officers and directors of the Lone Star Building & Loan Association, and from in any manner interfering with the rights of the aforesaid persons as officers and directors of said Association from performing their duties as such officers and directors under the law and under the Bylaws of the Association, during the pend-ency of this suit.
“And you are hereby further commanded to be and appear before the 61st Judicial District Court of Harris County, Texas, in the Court room thereof, on the 9th day of May, A. D. 1939, at 9 o’clock A. M., then and there to show cause why this injunction should not be made permanent.”

On May 9, 1939, the following order was entered in said cause: “A temporary injunction having heretofore been issued by this Court against the defendant in this case, returnable for the 9th day of May, 1939, and it appearing to the Court that both plaintiffs and defendant by agreement having consented to hearing the case on .its merits on the 22nd day of May, 1939, it is ordered by this Court that the temporary injunction heretofore granted be extended and remain in full force and effect until the case has been heard upon its merits on the 22nd day of May, 1939.”

The Banking Commissioner filed his answer in said cause, but the date of filing is not shown. Apparently a hearing was held on May 22, 1939, the case having been theretofore transferred from the 61st Judicial District Court to the 55th Judicial District Court, which was presided over by Honorable Ewing Boyd. The record does not show any order or judgment of the court as to the nature of the hearing, but we may safely assume that the following statement from answer of respondents substantially reflects what took place: “The 55th District Court, after hearing the pleadings, demurrers, exceptions and arguments of counsel on the questions of law, stated that he was of the opinion that the bill of particulars, being that notice furnished by the relators herein on April 8, 1939, was insufficient, and did not properly apprise your respondents of the nature of the hearing to be held in Austin on April 24, 1939, and that the proposed procedure relating to the manner of the introduction of testimony would, in his opinion, deprive your respondents of their constitutional right to be confronted by the witnesses who would testify against them, and of their right to cross-examine them, and required of the relators herein a more particular bill and revision of the proposed manner in which the evidence would be received on the hearing, and this' was agreed to by the attorneys for both parties. The Honorable Ewing Boyd stated in open court he believed if such procedure were followed the respondents could have a fair hearing, but that he would keep the case on the docket and retain jurisdiction thereof and after the hearing would make his disposition of the case upon a report being made to him of the proceedings at Austin, and thereupon entered' on his docket: ‘Case passed, pending hearing at Austin.’ ”

On May 23, 1939, the Banking Commissioner sent an additional notice to the officers and directors of the Lone Star Building and Loan Association which was as follows:

“You are advised that in the matter of hearing by the Banking Commissioner to determine the propriety of the removal of the Directors and officers of the Lone Star Building and Loan Association, I as Banking Commissioner, have set Wednesday, the 31st day of May, at 10 o’clock A. M. as the time, at the office of the Banking Commissioner of Texas, in the City of Austin, Walton Building, as the place for hearing such matter upon the charges and specifications heretofore delivered to you, at which time and place you will be given full opportunity to be heard upon said charge or charges and will be allowed to present any and all pertinent evidence or testimony that you may desire to present.
“This further notice is in pursuance of the suggestion of the Honorable Ewing Boyd, District Judge of Harris County, before whom your recent injunction suit is pending, made at a hearing in Houston on yesterday, at which time the restraining order heretofore issued against the Banking Commissioner expired and the court declined further to extend the same, and the notice is further to the end that you be given full opportunity to present to the Commissioner, at the time and place above named, any fact or facts showing reason why you should not be removed as such director or officer of the Lone Star Building and Loan Association.”

On May 31, 1939, the hearing before the Commissioner of Banking was had. The order entered upon said hearing is lengthy and cannot be set out in full. We give a brief summary of same:

(a) It recites 'the appearance of all the parties, either in person or by attorneys, and an announcement of ready for trial. It does not show any protest by anyone.
(b) It recites giving of the original notice of April 8, 1939, for a hearing on April 24, 1939. In this connection it is recited that said hearing was not had because of the temporary restraining order issued by the District Court of Harris County. It is further recited that as said restraining order had expired, the Commissioner on May 23, 1939, gave another notice, in which the parties were notified that they would have full opportunity of being heard and giving testimony, as is disclosed by said notice above set out.
(c) The fact of the hearing of evidence and argument of counsel is recited, and the matter was taken under consideration until June 13, 1939, at which time the ruling of the Commissioner was announced.
(d) The judgment of the Commissioner is set forth in this language: “It is therefore the order and judgment of the Banking Commissioner of Texas, in virtue of the authority vested in him by law in such cases made and provided, that Kenneth Krahl, Vice-President and Director of Lone Star Building & Loan Association of Houston, Texas, Victor Daily, Secretary-Treasurer and Director of Lone Star Building & Loan Association of Houston, Texas, L. W. Chilton, Sr., President and Director of Lone Star Building & Loan Association, of Houston, Texas, W. J. Howard, Director of Lone Star Building & Loan Association, of Houston, Texas, Frank M. Gossett, Director of Lone Star Building & Loan Association, of Houston, Texas, and Paul P. Parker, General Manager of Lone Star Building & Loan Association, of Houston, Texas, each, every and all are hereby removed from their respective offices or positions as above indicated, in Lone Star Building & Loan Association! of Houston, Texas, and that they collectively and each of them respectively are henceforth in no wise and to no extent authorized to perform the functions of their offices or positions respectively, but henceforth they collectively and each of them respectively are without authority whatsoever with respect to administering or managing the affairs of Lone Star Building & Loan Association, of Houston, Texas.”

Travis County Case.

On June 9, 1939, the State of Texas by its Attorney General, acting upon the relation of Z.' Gossett, Banking Commissioner, filed suit in the District Court of Travis County against the Lone Star Building and Loan Association. This suit was No. 61,891 upon the docket of said court. The purpose of the suit was to forfeit the charter of said Association, the appointment of a receiver, and to wind up its affairs. The petition contains allegations of various grounds sufficient, if true, to entitle the State to the relief sought. It is alleged that said suit is brought upon the relation of the Banking Commissioner under and by virtue of the provisions of Section 7, Acts 1929, 41st Legislature, 2nd Called Session, Chapter 61, as amended by Acts 1939, p. 76, 46th Legislature, Senate Bill No. 13, Vernon’s Ann.Civ.St. art. 881a-7; and there is a further allegation that the suit is brought by the State of Texas through the Attorney General, not upon the relation of the Banking Commissioner, but in the nature of quo warranto, as authorized by Article 1380 of the Revised Statutes of 1925.

Upon the filing of this petition the Judge of the District Court of Travis County issued a restraining order directed to the Lone Star Building and Loan Association, restraining it from alienating, conveying, transferring or disposing of its properties, and from paying out any funds or moneys belonging to same. The court also set a date for hearing on the question of appointment of a receiver and temporary injunction. Said temporary restraining order appears to have been kept alive awaiting action of this court in this proceeding.

On June 19, 1939, the defendant Lone Star Building and Loan Association filed in said Travis County suit its plea of privilege to be sued in Harris County. On the same date said defendant, subject to its plea of privilege, filed plea in abatement and answer. The plea in abatement' was predicated upon an allegation that there was pending a suit in Harris County involving the same subject matter.

Further Action in Harris County Case.

On July 6, 1939, plaintiffs in said Cause No. 256,964 in Harris County filed their first amended original petition. This petition named Z. Gossett, in his individual capacity, as well as in his capacity as Banking Commissioner, and Gerald C. Mann, individually and in his capacity as Attorney General, defendants. Many of the allegations of this petition relate t& matters which occurred prior to May 31, 1939, the date upon which the hearing before the Commissioner was held. We think the relevant portions of the petition are these:

(a) That the action of the Banking Commissioner of June 13, 1939, in removing the officers and directors of the Lone Star Building and Loan Association was void; although the grounds for such contention are not fully set forth.
(b) Institution of suit No. 61,891 by the State of Texas in the District Court of Travis County, and issuance of the restraining order is alleged. It is further alleged that all such actions are wrongful, illegal and void. Apparently this claim is based on the further claim that all matters involved in the Travis County suit were previously involved in the Harris County case.
(c) Further allegations tending to show that the acts of defendants were detrimental to the rights of plaintiffs, and damages in the sum of $10,000 are alleged.
(d) Prayer was made for temporary restraining order directed to Z. Gossett, Banking Commissioner of the State of Texas, and Gerald C. Mann, Attorney General of the State of Texas, in terms as hereinafter set out.

Upon presentation of said petition the Honorable Ewing Boyd, Judge of the 55th Judicial District Court of Harris County, issued restraining order in terms as follows: “Now, therefore, you and each of you, your assistants, - agents, servants, employees and attorneys, are hereby commanded that you desist and refrain from interfering with the plaintiffs: Lone Star Building and Loan Association, Kenneth Krahl, Victor Daily, Dr. L. W. Chilton, W. J. Howard, Frank M. Gossett, and V. R. Kobersky, in the conduct of the business of said Lone Star Building and Loan Association; and, you and each of you, your assistants, agents, servants, employees, and attorneys, are hereby further commanded that you desist and refrain from taking any action in the cause pending in the District Court of Travis County, being Cause No. 61,891 on the docket of the 53rd Judicial District Court of said County, entitled: State of Texas versus Lone Star Building and Loan Association, other than to have restraining orders and injunctions therein dismissed or to have said cause dismissed; and, you and each of you, your assistants, agents, servants, employees, and attorneys, are hereby further commanded that you.desist and refrain from enforcing ■or attempting to enforce the restraining order in the aforesaid cause, and from extending same or having same extended, and from prosecuting the aforesaid suit or any other suit seeking the same relief, or any part thereof, as sought in the above described suit in Travis County, Texas; all to remain in force and effect until the 15th day of July, 1939, and until the completion ■ of hearing on the application for temporary injunction.”

Proceedings in the Supreme Court.

This is an original action brought in this •court by Gerald C. Mann individually, and as Attorney General of the State of Texas, ■ and Z. Gossett, as Banking Commissioner of the State of Texas, called relators, against Honorable Ewing Boyd, Judge of the 55th Judicial District Court of Harris County, Lone Star Building and Loan Association, Kefineth Krahl, Victor Daily, Dr. L. W. Chilton, W. J. Howard, Frank M. Gossett, V. R. Kobersky, David D. Schaf-fer and wife, Kittie Schaffer, C. R. Stewart, Mrs. C. H. Ford, a widow, and Mrs. Zula V. Crenshaw, a widow, referred to as respondents. The nature of the relief sought is as follows:

“These plaintiffs would show that the unlawful, unwarranted and void acts of the defendants, and especially the defendant, Honorable Ewing Boyd, herein complained . of, are contrary to law and to' every consideration of public policy, and their necessary effect is and will be to thwart the ordinary and due processes of governmental functioning, and are productive of delay and interminable confusion in the affairs of state; that these plaintiffs have no adequate legal remedy or remedies whatsoever; that Harris County and Travis County are situated in territorial jurisdictions of different Courts of Civil Appeals and the suffering of a judgment to be entered by any court of Harris County, necessitating or authorizing an appeal therefrom by either party, would -not be binding upon the district courts of Travis County, and, correspondingly, a decision by the District Court of Travis County authorizing or necessitating an appeal to the Court of Civil Appeals, would not be binding upon the District Courts of Harris County, thus bringing about confusion and uncertainty, and thus unlawfully interfering with the proper functioning of the District Court of Travis County for the 53rd Judicial District, and of the Attorney General and of the Banking Commissioner as state officials charged specifically and exclusively with the performance of duties in respect to the maintenance and prosecution of cause No. 61,891 in said 53rd Judicial District Court.

“Wherefore, these plaintiffs pray that the defendants be cited in such terms and at such time as to this court may seem proper to answer this petition, and that upon final hearing hereof they have judgment, that this court will issue its most gracious writ of mandamus, directed to the Honorable Ewing Boyd, Judge of the 55th Judicial District of Texas, for Harris County, commanding him to rescind his said existing restraining orders in connection with the prosecution of said cause No. 61,891, and further that this court will issue any and all other writs necessary or proper to petitioners’ complete relief, under the facts herein made known to the court.”

Opinion.

From the foregoing statement it appears to us apparent that the restraining order of Judge Ewing Boyd issued out of the District Court of Harris County, attempting to restrain proceedings in the Travis County District Court, is wholly void. The Travis County case is an action for dissolution of the corporate existence of the Lone Star Building and Loan Association, and to wind up its affairs. It is an action authorized by statute, and is being prosecuted by the officials of the State directly charged with the duty of enforcing the laws of the State as regards dissolution of corporations, and particularly a building and loan association. Aside from the fact of the removal of the officers and directors of the Lone Star Building and Loan Association, the petition alleges various grounds for dissolution and forfeiture of charter. Under the allegations of the State’s petition, public policy, as well as the plain mandates of the law, require prosecution of the suit by the State, under direction of the officials representing it. The subject matter of this suit goes far beyond the mere circumstances of who may or may not represent said association as corporate officers and directors. The subject matter of this suit, as well as the essentially necessary party plaintiff, to-wit, the State of Texas, is in no sense involved in the suit in Harris County.

On the other hand, the suit in Harris County as originally filed by the officers and directors of the Lone Star Building and Loan Association is a personal one, equitable in its nature, and is peculiarly limited and defined by the statute. The language of the statute is as follows: “Any officer or director so notified of the intention of the Commissioner and feeling himself aggrieved by such removal shall have a right to apply to the District Court of his residence, for a writ of injunction to restrain- such removal, as in ordinary injunction cases.”

A great deal is said in briefs about interference with the original restraining order issued in the Harris County case. The meaning and effect of that order must be determined from the prayer on which it ' was based. At the most it could only have meant that the Banking Commissioner was restrained from taking action looking to the removal of the officers and directors until their right to injunction “to restrain such removal” could be heard in the district court in Cause No. 256,964. But manifestly such restraining order by its terms, and by action of the parties and the court, has become functus officio. The order of May 9, 1939, extended it only to May 22, 1939. Unless expressly extended, it expired on that date. It is obvious that a hearing was had on that day. Respondents’ admissions, quoted above, and the answer of Judge Boyd show conclusively that the principal objection urged was that the Commissioner was attempting to deprive respondents of a right to produce witnesses and be heard upon the facts. The court expressly held with them on that contention, “and required of the relators herein a more particular bill and revision of the proposed manner in which the evidence would be received on the hearing; and this-was agreed to by attorneys for both parties.” It is further recited that “Judge Boyd stated in open court he believed that if such procedure were followed the respondents could have a fair hearing.” The court thereupon entered on his docket a notation as follows: “Case passed, pending-hearing at Austin.” This manifestly shows that the restraining order was set aside so as to allow the hearing before the Commissioner in Austin. This is emphasized by the notice which followed. It expressly recited the dissolution of the restraining order, and the giving of additional notice,, “in pursuance of the suggestion of the Honorable Ewing Boyd, District Judge of Harris County.” Said notice fully, complied with the ruling of Judge Boyd, as it provided as follows: “At which time and place you will be given full opportunity to be heard upon said charge or charges and will be allowed to present any and all pertinent evidence or testimony that you may desire to present.” The order entered by the Commissioner shows that the parties-did appear and answer and no protest was-filed.

We think it does appear that Judge Boyd, while dissolving the restraining order to the extent of allowing the hearing' before the Commissioner, undertook to reserve jurisdiction of the matter to the extent of determining whether or not, in event the Commissioner did remove the-officers and directors, such removal was valid. Whether or not the parties are entitled to an appeal from the action of the Commissioner, or whether or not, having permitted the hearing and the removal, the court may in that proceeding determine the question of validity of the removal, and award damages for such action, are questions which may be appropriately litigated in that case.

It seems to us, however, that these matters, in the last analysis, are not of vital importance here. The Travis County case was filed before the amended petition (in which the wrongful removal and prayer for damages were set up) was filed in the Harris County suit. Therefore the Travis County District Court obtained jurisdiction of the suit for forfeiture of charter before the Harris County court acquired jurisdiction of the cause of action set up in said amended pleading; — even if it could be said that the subject matter of the two cases then became similar; which certainly appears not to be true. Undoubtedly prior to the filing of the amended pleading the subject matter of the original suit in Harris County and the subject matter of the suit in Travis Coupty were wholly dissimilar.

But it is argued that the act of the Commissioner in removing the officers and directors amounts to a dissolution of the corporation and a forfeiture of its charter. This is obviously not true, otherwise it would have been wholly unnecessary to set up in the law provisions for forfeiture of charter in proceedings brought by the State, acting through its Attorney General, or upon relation of the Banking Commissioner. It would certainly be inconsistent for the Harris County court, in the proceedings brought by the officers and directors merely to restrain their removal, to determine that the State might not, in any other proceeding, forfeit the charter of the corporation, or appoint a receiver for its business and assets.

We think it appropriate to add, however, that in so far as the State may seek to forfeit the charter of the corporation on the ground that its officers and directors have been removed, the Travis County court should not consider that ground until after such time as the Harris County court may have determined the validity of such removal, or until it be determined that the validity of such removal may not be litigated in the courts. While the matter of the hearing before the Corn-missioner is mentioned in the State’s petition, filed June 9, 1939, the fact that the officers and directors have been removed is not set up as a ground for forfeiture of charter and dissolution of the corporation. Indeed it could not have been done because at that time the Commissioner had not rendered his decision.

There are other questions concerning diversity, or lack, of parties, and pertaining to the power of the District Court of Harris County to enjoin the Banking Commissioner and Attorney General in the matter of enforcing statutory duties, involving exercise of official discretion, but it is unnecessary to discuss those questions. As the District Court of Harris County had no jurisdiction over the subject matter of suit No. 61,891 pending in Travis County, the restraining order of December 6, 1939, is necessarily void.

Writ of mandamus will issue directed to Honorable Ewing Boyd, Judge of the 55th Judicial District Court of Harris County, Texas, commanding him to rescind and set aside said order of July 9, 1939, pertaining to said Cause No. 61,891 in the District Court of Travis County.

Opinion adopted by the Supreme Court.


author: HICKMAN, Commissioner.

text:
    TEXAS & N. O. R. CO. v. COMPTON.
    No. 7173.
    Supreme Court of Texas.
    Feb. 28, 1940.

      Baker, Botts, Andrews & Wharton, of Houston, and Armstrong, Cranford, Barker & Bedford and W. E. Cranford, all of Galveston, for plaintiff in error.
    Stewarts and Bryan Economidy, both of Galveston, Noble Carl; of Houston, and H. J. Rayl and C. E. Loeb, both of New Orleans, La., for defendant in error.
   HICKMAN, Commissioner.

This suit was brought by Mrs. Beatrice-Compton against Texas & New Orleans-Railroad Company for damages sustained by her on account of the death of her husband, Charles Compton. The trial court peremptorily instructed á verdict that she take nothing and rendered judgment ac•cordingly. The Court of Civil Appeals at Galveston, by a majority opinion, reversed the trial court’s judgment and remanded the cause. 96 S.W.2d 239.

The material facts are few. About one o’clock at night Grover Carrington left Texas City in his automobile for Galveston. Charles Compton and others accompanied him on the trip. The night was dark and foggy and the visibility was poor. A few miles from Texas City the automobile ran into a slowly moving freight train and Compton’s death resulted from the collision. The highway ran over a flat prairie country, and in the vicinity of the intersection there were no trees, houses or other obstructions to the view. The highway and railroad track crossed at right angles. The train consisted of 87 cars, and the automobile struck the sixtieth car from the engine. The train was moving eight or ten miles per hour and the automobile much faster.

One ground of negligence relied upon was the alleged failure of the employees of the railroad company to ring the bell and sound the whistle on the locomotive when approaching the crossing, as required by R. S. Art. 6371, Vernon’s Ann. Civ.St. art. 6371. The positive testimony of the railroad’s witnesses was that the whistle was blown and the bell rung in accordance with the requirements of the statute. The only testimony to the contrary was that given by Grover Carrington, the driver of the automobile, and Bertha Thomas, another occupant thereof, who testified, in substance and effect, that they would have heard the whistle and bell, had they been sounded, but they were not sounded. The train was moving not faster than ten miles per hour. At the time of the collision the locomotive was more than one-half mile distant from the intersection. It had crossed the intersection at least three minutes before that time. The automobile was traveling not less than thirty miles per hour, and it must have been more than one and one-half miles distant from the intersection at the time the locomotive passed over the same. Under these circumstances and surroundings, the testimony of these witnesses amounted to no more than a mere surmise or suspicion. It was at most but a scintilla of evidence that these warnings were not given, and the scintilla doctrine is not recognized by this court. Joske v. Irvine, 91 Tex. 574, 44 S.W. 1059.

Another ground relied upon was the failure of the railroad company to use extraordinary means to give warning, such as to equip its freight cars with lights and have same burning at night, to equip its crossing with signal bells or lights or to have a watchman stationed thereat. Negligence cannot be based upon such omissions, for the crossing was not extrahazardous and therefore no duty was cast upon the railroad company to observe these extraordinary precautions. It would be difficult to conceive of a railroad crossing at which the hazards would be more obvious than at this one.

Another ground of negligence relied upon was the claimed failure of the railroad company to equip the crossing with a warning sign as required by R.S. Art. 6370. That article reads as follows: “Such corporation shall erect at all points where its road shall cross any first or second class public road, at a sufficient elevation from such public road to admit of the free passage of vehicles of every kind, a sign with large and distinct letters placed thereon, to give notice of the proximity of the railroad and warn persons of the necessity of looking out for the cars; and any company neglecting or refusing to erect such signs shall be liable in damages for all injuries occurring to persons or property from such neglect or refusal.”

Practically all of the evidence in 'the record is to the effect that such a sign was at the crossing in question at the time of this accident, but there is sufficient evidence to the contrary to raise a fact issue. Since a peremptory instruction was given in favor of the railroad company, for the purpose of deciding the question under review, we must assume that the required sign was not there, and that the railroad company was therefore negligent as a matter of law. The inquiry is thus narrowed down to the question of whether an issue of fact was raised on the supporting issue of proximate cause. Under the authorities it must be held, as a matter of law, that the negligence of the railroad company in this regard was not the proximate cause of the death of Charles Compton. This precise question was before the Court of Civil Appeals at San Antonio in the case of Texas & New Orleans Railroad Company v. Stratton, 74 S.W.2d 741. In that case there was a jury finding that such negligence was the proximate cause of the injuries complained of, but notwithstanding the verdict judgment was rendered on appeal that the plaintiff take nothing. It was held that, as a matter of law, the absence of. the warning sign was not the proximate cause of the injuries. The court reasoned that if travelers on the highway could not see the moving cars ahead of him, they could not have seen the sign. The same holding was made by the same court in two other cases, growing out of the same accident. Texas & New Orleans Railroad Company v. Stratton, Tex. Civ.App., 74 S.W.2d 746; Texas & New Orleans Railroad Company v. Berry, Tex.Civ.App., 74 S.W.2d 750. Applications for writs of error were prosecuted in all three of these cases and all were refused. We have inspected these applications and find that the question here under review was squarely presented to this court for decision. By refusing the applications in those cases this court put its stamp of approval upon such holding. We perceive no ground of distinction between those cases and the instant case. So nearly are the facts the same that to hold that an issue of fact was raised in this case would be to overrule the decisions in those cases. The trial court, in directing a verdict herein, followed the law as announced in those opinions, and it must be held, therefore, that its judgment should not have been reversed by the Court of Civil Appeals.

The conclusion announced in the Stratton case was later announced in the case of Wichita Valley R. Co. v. Fite, Tex.Civ. App., 78 S.W.2d 714, although the judgment in that case was based on contributory negligence. Like conclusions upon strikingly similar facts have been announced by eminent courts of other jurisdictions in, among others, the following -cases: Morley v. Cleveland C. C. & St. L. R. Co., 100 Ind. App. 515, 194 N.E. 806; McGlaufkin v. Boston & M. R. R., 230 Mass. 431, 119 N.E. 955 L.R.A.1918E, 790; Crosby et al. v. Great Northern Ry. Co., 187 Minn. 263, 245 N.W. 31; Missouri Pacific R. Co. v. Price, 182 Ark. 801, 33 S.W.2d 366.

The judgment of the Court of Civil Appeals is reversed and that of the trial court is affirmed.

Opinion adopted by the Supreme Court.


author: BEAUCHAMP, Judge.

text:
    DAVIS v. STATE.
    No. 20857.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    C. M. Turlington and C. W. Feild, both of Marshall, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

Appellant was convicted on a charge of driving an automobile upon a public highway in Harrison County while intoxicated, and was assessed a penalty of ninety days in jail together with a fine of $100.

There are no bills of exception in the record and nothing complaining of any error committed by the court. The indictment appears to be regular. The charge properly presents the law, and the facts amply support the finding of the jury.

No error appearing, in the record, we think that the finding of the jury is conclusive, and the case is accordingly affirmed.


text:
    MYERS v. STATE.
    No. 20851.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    No attorney for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for unlawfully driving an automobile upon a public highway while intoxicated; penalty assessed a confinement in the county jail for five days and a fine of fifty dollars.

The indictment appears regular. The record is before us without statement of facts or bills of exception. No error has been presented authorizing a reversal of the conviction. The judgment is therefore affirmed.


text:
    DALLAS JOINT STOCK LAND BANK OF DALLAS v. D. E. MAGEE.
    No. 2299 — 7463.
    Commission of Appeals of Texas, Section A.
    Feb. 28, 1940.
    Lawther, Cramer, Perry & Johnson, of Dallas, for plaintiff in error.
    Slay & Simon, of Fort Worth, for defendant in error.
   HICKMAN, Commissioner.

We had a mistaken view of the record when w'e granted the writ in this case. A careful consideration thereof, after submission, in connection with the application and briefs, has led us to the conclusion that the opinion of the Court of Civil Appeals, reported in 117 S.W.2d 473, is correct, and should be permitted to stand. It is accordingly approved. Any further writing on the case could hardly be justified.

The judgment of the Court of Civil Appeals is affirmed.

Opinion adopted by the Supreme Court.


author: HAWKINS, Presiding Judge.

text:
    Luis AGUILAR v. STATE.
    No. 21043.
    Court of Criminal Appeals of Texas.
    Feb. 28, 1940.
    Carpenter & Boling, of Lubbock, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   HAWKINS, Presiding Judge.

Conviction is for burglary, punishmerit being assessed at confinement in -the penitentiary for two years.

Since notice of appeal was given appellant has filed his affidavit advising that he does not further desire to prosecute his appeal, and requests that same be dismissed, and it is so ordered.


author: CHRISTIAN, Judge.

text:
    Chester GORE v. STATE.
    No. 20890.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    R. B. Gambill, of Denton, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

The offense is driving an automobile on a public highway while intoxicated; the punishment, a finé of $50 and confinement in jail for 5 days.

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

PER CURIAM.

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


text:
    Ivan GRAYSON v. STATE.
    No. 21007.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    R. T. Dickson, of Sweetwater, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   CHRISTIAN, Judge.

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

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

PER CURIAM.

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


text:
    Horace MILLS v. STATE.
    No. 20920.
    Court of Criminal Appeals of Texas.
    Feb. 14, 1940.
    Pace & Goens, of Tyler, and W. D. Justice, of Athens, for appellant.
    Lloyd W. Davidson, State’s Atty., of Austin, for the State.
   BEAUCHAMP, Judge.

The conviction is for embezzlement; penalty assessed at confinement in the penitentiary for two years.

Appellant has filed a written motion, duly verified, requesting the dismissal of the appeal. The request is granted and the appeal is ordered dismissed.


author: ■ WALKER, Chief Justice.

text:
    S. L. AQUILINA, Appellant, v. G. D. DUHON et al., Appellees.
    No. 3603.
    Court of Civil Appeals of Texas. Beaumont.
    Feb. 9, 1940.
    Rehearing Denied Feb. 21, 1940.
    David Broadus, of Beaumont, for appellant.
    Fred White, of Port Arthur, for appel-lees.
   ■ WALKER, Chief Justice.

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


author: PER CURIAM.

text:
    Ed GROTE, Plaintiff in Error, v. O. E. CHAFIN, Defendant in Error.
    No. 10666.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 31, 1940.
    Rehearing Denied Feb. 28, 1940.
    Keys & Holt, Hayden W. Head, and Oscar Spitz, all of Corpus Christi, for plaintiff in error.
    Rockey Harkey and Miller & Dawson, all of Sinton, for defendant in error.
   PER CURIAM.

The judgment of the trial court is affirmed.


text:
    E. M. LINKENHOGER, Jr., Appellant, v. J. I. HAILEY, Appellee.
    No. 10646.
    Court of Civil Appeals of Texas. San Antonio.
    Jan. 17, 1940.
    Rehearing Denied March 6, 1940.
    E. B. Ward, of Corpus Christi, for appellant. ,
    Kemp, Lewright, Dyer, Wilson & Sor-rell, of Corpus Christi, for appellee.
   PER CURIAM.

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


author: COMBS, Justice.

text:
    NATIONAL LIFE & ACCIDENT INS. CO., Appellant, v. Lem HARRIS, Appellee^
    No. 3568.
    Court of Civil Appeals of Texas. Beaumont.
    Jan. 24, 1940.
    Rehearing Denied Eeb. 28, 1940.
    George M. Sonfield, of Beaumont, and Robert L. Sonfield, of Houston, fdr appellant. .
    Howell & Howell, of Beaumont, for ap- . pellee.
   COMBS, Justice.

This suit originated in the County Court of Jefferson County and involves collection of twenty-seven weekly installments of disability insurance of $8 each aggregating $216. The trial court awarded judgment as prayed for. We find no reversible error and affirm the judgment without written opinion. See Texas & New Orleans Railroad Company v. Futch, Tex.Civ.App., 127 S.W.2d 1040.


text:
    COMMERCIAL STANDARD INS. CO. v. DAVIS.
    No. 24798.
    Supreme Court of Texas.
    March 6, 1940.
    Todd, Crowley & Thompson, of Fort Worth, for plaintiff in error.
    E. M. Davis and J. C. Darroch, both of Brownwood, for defendant in error.
   PER CURIAM.

This suit was filed in the District Court of Mills County, Texas, by Dr. Robert Guy Davis against Commercial Standard Insurance Company, to recover compensation as an employee of Daniel Baker College, a corporation. Trial in the district court with the aid of a jury resulted in a verdict and judgment for Dr. Davis. On appeal by the insurance company to the Court of Civil Appeals at Austin, the judgment of the district court was reversed and the cause remanded for a new trial on account of a trial error. 135 S.W.2d 794. The insurance company has appealed to this court for writ of error, contending that the Court of Civil Appeals erred in refusing to finally render judgment for it. The case is before us only on such application.

Daniel Baker College is a nonprofit religious educational corporation, duly incorporated under the laws of this State. Such corporation owns and operates a college, known as Daniel Baker College, at Brown-wood, Brown County, Texas. During the time here involved, this insurance company was the compensation insurance carrier of the corporation, Daniel Baker College. Dr. Davis contends that he was injured while in the discharge of his duties as an employee of Daniel Baker College, a corporation. He claims compensation under the above-mentioned insurance policy. The insurance company contends that Dr. Davis was not covered by its insurance policy, because of the provisions of Article 8309, Section la, R.C. S. 1925. Such statute reads as follows: “The president, vice-president or vice-presidents, secretary or other officers thereof provided in its charter or by-laws and the directors of any corporation which is a subscriber to this law shall not be deemed or held to be an employe within the meaning of that term as defined in the preceding section hereof, and this notwithstanding they may hold other offices in the corporation and may perform other duties and render other services for which they receive a salary.”

Under the plain provisions of the above-quoted statute, if, at the time of his injury, Dr. Davis was president of the corporation, Daniel Baker College, he is excluded from the protection afforded the employees of such corporation under the compensation insurance policy made the basis of this suit. We think this is true, whether he was president de jure or de facto.

The insurance company contends that the evidence contained in this record, and detailed in the opinion of the Court of Civil Appeals, shows, as a matter of law, that Dr. Davis was president of the corporation, Daniel Baker College. The Court of Civil Appeals holds that such evidence shows, as a matter of law, that Dr. Davis was not president of the corporation just mentioned. We are not in accord with either the contention of the insurance company or the holding of the Court of Civil Appeals. In regard to the question of whether or not Dr. Davis was president of the corporation above named, we think the evidence raises a fact question, which on another trial, should be submitted to the jury, if the case is tried with a jury, for a fact finding. It is true that the facts are undisputed, but the mere fact that such is the case does not always eliminate the right to a fact finding. If reasonable minds can draw different inferences or conclusions from undisputed facts, a fact issue is presented. We think the evidence contained in this record would justify a fact finding either way on the question as to whether or not Dr. Davis was president of the corporation, Daniel Baker College, at the time he was injured.

As already stated, this case is before this Court on application for writ of error filed by the insurance company. The Court of Civil Appeals reversed the judgment of the trial court and remanded the cause for a new trial. The insurance company applies for a writ of error, contending that the Court of Civil Appeals erred in not rendering judgment for it. We have made the above observations in view of a new trial in order to guard against another reversal.

The application for writ of error filed herein by the insurance company is “Dismissed W. O. J. — Correct Judgment.”