author: •PER CURIAM.

text:
    NESBITT v. COBURN.
    No. 2379.
    Court of Civil Appeals of Texas. Waco.
    Sept. 30, 1940.

      Williford, Williford & Bond, of Fairfield, for appellant.
    Geppert, Geppert & Victery, of Teague, for appellee.
   •PER CURIAM.

This suit involves a contest of the run-off Democratic Primary election held in Pre-cj&ct No. 3, Freestone County, Texas, on August 24, 1940. At said election, J. S. Co-burn, contestant, and Tom Nesbitt, contes-ten, were opposing candidates for County Commissioner of said precinct. According to the returns, the contestee received 456 votes and the contestant 433. Upon the trial of the case it was found that 119 of the 122 votes cast at the Liberty voting box in said precinct were not signed by the presiding officer of the election. Of said 119 unsigned ballots 11 were cast for the contestant and 108 for the contestee. The trial court held that said 119 ballots were illegal and could not be counted and, after deducting same from the total vote of the two candidates, found that the contestant had received a majority of the votes and was entitled to a certificate of nomination. The contestee appealed.

Appellant’s first assignment challenges the sufficiency of plaintiff’s petition. The plaintiff alleged that he and contestee were rival candidates for the Democratic nomination for County Commissoiner at the election in question. The petition set out the number of votes cast in each of the voting boxes in said precinct and the number thereof received by each of the candidates. Fie alleged that at the Liberty voting box, according to the returns, contestant received 11 votes and contestee 111 votes; that the votes cast at said box were illegal and void and should not be counted for either party because the ballots were not signed nor authenticated by the presiding judge at said voting box; that according to the returns, contestant received 433 votes and contestee 456 votes, but, on account of the illegality of the votes cast at the Liberty voting box, which votes should be excluded and not counted, the contestant had actually received a majority of the legal votes cast at said election. The petition did not allege specifically that a certificate of election had been issued by the Democratic Executive Committee, but it did allege the facts as above set out and prayed “that said certificate of nomination be canceled and that final judgment declaring that said contestant received the majority of the legal votes cast in said several boxes, and judgment directing and commanding the County Clerk of Freestone County to place the name of the contestant on the official ballot for the November election, etc.” Contestee’s general demurrer to the petition was overruled. Later on during the trial, the contestant filed a ’ trial amendment in which it was alleged that on August 31, 1940, .the Democratic Executive Committee had canvassed the returns from said election and had declared contes-tee the nominee and had issued to him a certificate to that effect.

Appellant’s contention is that the court erred in overruling his general demurrer to the petition, because the petition failed to allege that a certificate of nomination had been issued by the Democratic Executive Committee;’ and that it was error to allow appellee to file the trial amendment because same was filed more than ten days after the certificate of nomination was issued. We think the petition, as originally filed, was good as against the general demurrer. In Gettys v. Cobble, Tex.Civ.App., 244 S.W. 860, it was held, in effect, that it was not indispensable to the jurisdiction of the court in an election contest for the petition to allege that a certificate of nomination had been issued. Furthermore, under a well settled rule, a petition must be given a liberal construction when testing its sufficiency as against a general demurrer. Here, the petition alleged that on account of the illegal votes counted at the Liberty voting box “according to the returns, the contestee had received a majority of the votes cast at said election,” but that as a matter of fact contestant had received a majority of the votes, and he prayed that the certificate of nomination be canceled. The above allegations were sufficient, when liberally construed, to imply that a certificate of nomination had been issued.

Moreover, we think the trial amendment, which was sufficient to cover this defect, if any, was permissible. As above stated, the certificate of nomination was issued on August 31, 1940. The election contest was filed September 3, 1940. The trial amendment, which alleged only the issuance of the certificate of nomination, was not filed until September 17,1940, which was more than ten days after the issuance of the certificate of nomination. It was filed during the trial and was not filed in response to any ruling of the trial court. Revised Statutes, art. 3152, Vernon’s Ann. Civ.St. art. 3152, provides that certificates of nomination in primary elections shall be subject to review “upon allegations of fraud or illegality, by the District Court * * * provided, that such allegations are filed in said Court within ten (10) days after the issuance of said certificate.” We do not think said statute is subject to the construction that no amendments may be filed to the petition after the expiration of ten days from the issuance of the certificate of nomination. The statute merely prohibits the enlargement of the grounds of contest after the expiration of the statutory period. In the case of Sartwelle v. Dunn, Tex.Civ.App., 120 S.W.2d 130, language was used which might be construed to mean that since the machinery for the contest of a primary election is purely statutory and since no provision is made for allowing the pleadings to be amended, no amendments of any kind should be allowed after the expiration of the statutory ten day period. It should be noted, however, that in that case, as well as. in the case of Kinnard v. Lee, Tex.Civ.App., 244 S.W. 1046, the court had under consideration a case in which the. contestant had sought by amendment to enlarge the grounds of contest. In the case at bar the contestant did not attempt by amendment to enlarge the allegations of illegality of the election. It is true that the-provisions for contest of primary elections are purely statutory and where such statutes contain express directions for such a trial, they control. But such statutes do not undertake to provide for all the details of the trial, such as the form of the petition, the summoning of the witnesses, the impaneling of the jury, the taking of testimony, and the like. Presumably, in the absence of statutory limitation, the general law for the trial of a civil case applies. This would include the right to amend, except where limited by the statute or the nature of the proceedings. The statute merely provides that the allegations of fraud or illegality must be filed within ten days after the issuance of the certificate of nomination and thereby impliedly forbids the enlargement of these particular allegations after the expiration of the statutory period. It does not prohibit amendments in other respects and we see no reason why such amendments should not be allowed so long as they are necessary to the ends of justice and will not work a surprise or unnecessarily delay the trial. We overrule this assignment.

Revised Statutes, art. 3008, requires all ballots to bear the signature of the presiding judge, and Art. 3018 provides that no ballot which does not bear such signature shall be counted. It has been held that such provisions are mandatory. Miller v. Coffee, 118 Tex. 381, 15 S.W.2d 1036; Davis v. Walcott, Tex.Civ.App., 96 S.W.2d 817; Bass v. Lawrence, Tex.Civ.App., 300 S.W. 207; Turner v. Teller, Tex.Civ.App., 275 S.W. 115. The appellant .concedes the correctness of this holding generally but contends that the above statutes do not apply to primary elections. Both of the Articles of the Statute above cited were originally parts of Acts, 1st C.S.1905, p. 520. See sections 72 and 78 thereof. That Act, by section 93 thereof, expressly provided that its provisions should apply to all elections in this state except as otherwise provided therein. Many of the.provisions of said Act refer by express language to primary elections. In fact, section 102, Vernon’s Ann. Civ. St., art. 3100, thereof defined the term “primary election” as an “election held by the members, of an organized political party for the purpose of nominating the candidates of such party,” etc. This, we think, makes it clear that it was the intention of the Legislature that the provisions of said Act, ex.cept where otherwise provided, should apply to primary elections; and since sections 72 and 78 thereof, with reference to the signing of the ballots by the presiding judge and the counting of unsigned ballots, were parts of the same Act and there is nothing to indicate a different intention, said Articles must necessarily apply to primaries. Furthermore, section 93 of said Act has been brought forward and will now be found as Art. 2923 and reads as follows: “The provisions of this title shall apply to all elections held in this State, except as otherwise provided herein.” Said Article is now embodied in the same Title of our statutes as are Articles 3008 and 3018 above cited. It is clear therefore that it was the intention of the Legislature in adopting the re-codification of the statutes that Articles 3008 and 3018 should apply to primary elections. See section 22 of the Final Title of the re-codification of the statutes of 192S. If this were not true, we would be practically without any statutes regulating'the 'form of the ballot and the manner of conducting such elections. We therefore hold that Articles 3008 and 3018 apply to primary elections and that the trial court properly refused to count the unsigned ballots in the Liberty voting box in determining which of the candidates had received the nomination.

Appellant contends that all of the votes cast at the Donie voting box, where appellee received a vast majority thereof, should have been held illegal and not counted because the party who acted as the presiding judge of said voting box had not been properly appointed the presiding judge thereof. It does not appear that such party had been expressly selected by the Democratic Executive Committee of the county to hold the election on the occasion in question. However, it does appear that he was the Democratic committeeman from that precinct and that it had been the custom for years for each precinct chairman of said county to serve as the presiding judge of the election in his precinct. The rule seems to be that the statutes with reference to the manner of appointing election officers are directory and that irregularities therein will not affect the validity of the election. In such cases where there is no protest on the part of the voters, they will be held to have ratified the illegal appointment or unauthorized assumption of authority of the party who serves as such election judge. Hill v. Smithville Ind. School Dist., Tex.Civ.App., 239 S.W. 987; Deaver v. State, 27 Tex.Civ.App. 453, 66 S.W. 256. It does not appear that there was any protest on the part of the voters with reference to the presiding judge in the voting box in question. We therefore hold that the court did not err in refusing to hold as illegal the votes counted at said Donie voting box.

Revised Statutes, Art. 3045, provides for a contest of the validity of an election for certain state and county officers. Art. 3054 provides that if it appears upon a trial of any such contest as provided for in Art. 3045 that such a number of legal voters were by the officers or managers of the election denied the privilege of voting as would have materially changed the result, the court shall adjudge such election void and direct the proper officers to order another election to fill such offices. Appellant contends that under the foregoing provisions, the trial court should have ordered a new election for the nomination in question. Articles 3045 and 3054 above cited are parts of Chapter 9 of Title 50 of our Revised Statutes which provide for contests of elections. It has been held that the provisions of this chapter as evidenced by the language thereof apply to contests of general elections only and not to contests of primary elections. Iles v. Walker, 132 Tex. 6, 120 S.W.2d 418, par. 5. Articles 3151 and 3152 of Chapter 13 of the same Title provide for contests of primary elections. While Article 3054 does authorize the court to order another general election under certain conditions, there is no statute-which authorizes the court to order a second primary election in the event, upon contest, the first one is held void. In fact, it would not ordinarily be practical to hold another primary after the contest and before the general election and this doubtless accounts for the absence of legislation authorizing such procedure. This assignment is overruled.

The trial court seems to have tried the case in accordance with the statutes enacted by the Legislature and the general law applicable thereto. We find no reversible error and the judgment of the trial court is therefore affirmed.

The appellant will have two days within which to file motion for rehearing.


source: Caselaw Access Project

author: SPIARP, Justice.

license: Public Domain

text:
    COX et al. v. CAMPBELL et al.
    No. 6941.
    Supreme Court of Texas.
    October 2, 1940.
    W. II. Sanford and Conan Cantwell, both of Dallas, and Black, Graves & Stayton, of Austin, for plaintiffs in error Cox and others.
    Bibb & Bibb, of Marshall, for defendant in error Oil Co.
    T. D. Gresham and R. S. Shapard, both of Dallas, for defendant in error T. & P. Ry. Co.
    Greenwood, Moody & Robertson, of Austin, for defendants in error Campbell and Barton.
   SPIARP, Justice.

Plaintiffs in error sued the defendants in error in trespass to try title to recover a narrow strip of land, approximately 21.6 varas wide and 1130 varas long, being a part of the north half of the Texas & Pacific Railway Company right of way in Gregg County, Texas. Plaintiffs in error failed to recover judgment in the trial court, and on appeal to the Court of Civil Appeals at Amarillo that court affirmed the judgment of the trial court. 80 S.W.2d 1000.

In 1876 C. B. Carter acquired a 296 acre tract of land. Carter’s predecessor in title had conveyed to the Southern Pacific Railway Company a right of way 200 feet wide across this land, which is now owned by the Texas & Pacific Railway Company. After Carter’s death his executrix sold T. M. Campbell a tract recited to be 118 acres on the north side of the railroad right of way, which tract, described by metes and bounds, went to the center of the railroad right of way. The executrix also sold Campbell a portion of the land on the south side of the railroad right of way, which conveyance also ran to the center line of the railroad right of way, and it was recited to contain 68 acres. In 1898 T. M. Campbell conveyed to J. R. Castleberry the following described land: “Beginning at a stake on the north boundary of the Texas and Pacific Railway right of way; Thence North 411½ vrs. to a stake from which a black jack brs S 45' E 5 vrs; Thence East 1325 vrs. a stake from which a post oak brs S. 63 ft W, 2 vrs; a sweet gum brs S 60' E 2½ vrs; Thence South 511⅛ vrs a stake on the north boundary line of the Texas and Pacific Railway right of way from which a pine brs N 26' W 9 vrs; Thence with said Texas'and Pacific Railway right of way to the place of beginning, containing 108 acres of land, more or less.”

In 1904 T. M. Campbell conveyed to G. B. Turner the 68 acre tract on the south side of the railroad, and described it as follows: “Bounded on the east by a 50 acre tract of land owned by G. B. Turner purchased by him from N. W. Rodden; Bounded on the north by the right of way of the Texas'and Pacific R. R.; And on the West by a 50 acre tract owned by the said G. B. Turner and known as the J. F. Neal tract of land; Bounded on the south by the Katie Moore Boham tract of land.”

In order to give a general view of the situation, the following plat is inserted:

The land involved in this suit is the strip of land lying between the south line of the tract conveyed by Campbell to Castleberry, extending to the center of the railroad right of way. The sole issue in this case is whether the description in the deed from Campbell to Castleberry had the legal effect to transfer the title from Campbell to Castleberry to the center of the railroad right of way, subject to the rights of the Texas & Pacific Railway Company. Plaintiffs in error contend that the description in the deed carried the title to the, center line of the railroad right of way, arid defendants in error contend that it stopped'at. the north boundary line of the' railroad right of way. If title to the land passed to Castleberry to the center of .the right of way, then plaintiffs in error are entitled to recover here. On the other hand, if title passed only to the north boundary line of the right of way, then defendants in error are entitled to recover here. Of course the claims asserted by all parties are subject to the right of the Railway Company. This has been agreed .to by a stipulation between the parties.

As to whether or not a conveyance with field notes which describe property to the boundary line of a street or public highway carries title to the center of the street or public highway has long been a fruitful source of controversy. Many decisions may be found upon both sides of the question. We shall not review them here. In the early case of Mitchell v. Bass, 26 Tex. 372, this Court announced the following rule: “The established doctrine of the common law is, that a conveyance of land bounded oij a public highway, carries with it the fee to the centre of the road, a.s part and parcel of the grant. Such is the legal construction of the grant, unless the inference that it was so intended, is rebutted by the express terms of the grant.”

The rule announced in the foregoing case has been consistently followed and applied in this State. In the important case of Texas Bitulithic Co. v. Warwick, Tex.Com.App., 293 S.W. 160, it was held that a deed to a city lot, fronting or abutting on a street, described by metes and bounds, carries the fee to the center of the street, unless the contrary is expressly declared. The deed involved in that suit described the property conveyed by metes and bounds, stopping at the line of the street. Judge Powell wrote the opinion in that case, and, after an exhaustive review of the authorities, held that the conveyance carried the title to the center of the street.

Later- the case of Rio Bravo Oil Co. et al. v. J. F. Weed et al., 121 Tex. 427, 50 S.W.2d 1080, 1083, 85 A.L.R. 391, reached this Court. That suit involved the title to .43 of an acre of land, being a narrow strip included within the right of way of the Texas-New Orleans Railway, and being a part of a 52 acre tract which was partitioned by the owners. The railroad ran across the 52 acres. The land was divided into eight tracts. A plat was made thereof, and each tract was definitely described by field notes and the number of acres in each tract specifically named. The lines of the plat stop at the railroad right of way, and all of the field notes of the tracts of land abutting the right of way specifically call for the boundary line of the right of way, and not the center thereof; and both the field notes and the acreage described in said lots exclude the land in the railroad right of way.

J. M. Hebert owned an interest in the 52 acre tract of land partitioned. He received as his share of the land lots Nos. 2 and 4, which lie on one side of the railroad right of way, and lots Nos. 6 and 8, located on the opposite side of the railroad right of way, as shown by the plat made of said partition. The plat inserted in the opinion rendered in the Weed case shows that lots 4 and 6 adjoin the •railroad right of way on opposite sides. Hebert conveyed to Weed, by specific field notes calling for the line of the railroad right of way, the S. E. one-half of lot No. 6, containing 3.45 acres of land. It also appears that the land included in the railroad right of way abutting the land conveyed by Hebert to Weed was excluded in the field notes and also in the acreage expressed therein. At the time Hebert conveyed the land to Weed he owned land on both sides of the railroad right of way. The land involved in that suit, as shown from the plat set out in the opinion, was part of the right of way of the railroad company, and not included in the field notes, — just as is the case here. Perhaps no other case was ever considered more seriously and for a greater length of time by this Court than was the Weed case. It was referred to the two sections of the Commission of Appeals, and the opinions written by each section were not acceptable. Finally it was argued to the Court and the two sections of the Commission of Appeals; and the conferences held by the Court and the two sections of the Commission, in reaching a conclusion in that case, are still fresh in the memory of those who participated therein. It was contended in the Weed case, as it is contended here, that, by reason of the fact that the field notes in the deed specifically describing the land stopped at the line of the railroad right of way, the deed did not convey titlg to the center of the right of way. Judge Leddy wrote the opinion of the Court. Inserted below is the pertinent part of the plat of the land involved in the Weed case, which shows the land owned by Hebert abutting the railroad right of way at the time he conveyed part of lot No. 6 to Weed, and its relation to the railroad right of way.

To show clearly what issues were presented to this Court in the Weed case and what was held in that opinion we quote liberally therefrom as follows:

“Plaintiffs in error assert that ownership of the land involved should have been established in them for these reasons:

“First. Because the general rule of construction which applies to a deed to land bounded by a public highway, street, or stream, had no application in the case of a railroad right of way.

“Second. Because the partition deed of April 17, 1901, between Hebert and the Chaison heirs' shows upon its face, as a matter of law, that the right of way of the Texas & New Orleans Railway Company was not partitioned, and no part of same was included in lot 6 of said partition, but that title thereto remained in Hebert and the Chaison heirs as tenants in common-, subject to the right of way privileges in favor of the railway company.

“At the outset it may be said, if defendants in error are correct in their proposition of law, that the same legal presumption which applies to the conveyance of land abutting on a public highway, street, or stream, is applicable to a railroad right of way, then it necessarily follows that the partition deed between Hebert and the Chaison heirs as well as the deed from Hebert to Weed must be construed to pass the title to the center of the railroad right of way, as neither of said deeds contained any express reservation of the land included in the railroad right of way. The fact that it appears from the plat that the lines of the lots fronting on the railroad stop at the exterior line of such right of way is not of itself sufficient to exclude the conveyance of the title to the center of the railroad. It' was expressly so determined in the case of Texas Bitulithic Company v. Warwick [Tex.Com.App.], 293 S.W. 160, 162, in which the Commission of Appeals quoted with approval the doctrine announced in Corpus Juris (9 C.J. p. 201), as follows:

“ 'The presumption of an intent to convey title to the center of a street or highway is not overcome by the fact that the land is described by metes and bounds, 'and that the distances stated in the description of the deed do not extend to the center of the street.’

‘.‘It is therefore necessary for us to determine whether said' legal presumption • applying to lots abutting on highways and streams is applicable to the conveyance of land abutting upon a railroad right of way. In the consideration of this question, it becomes important to ascertain the reasons underlying the rule established by the courts at an. early date to the effect that a legal presumption exists that a person conveying land situated upon a public highway or stream intends to convey to the center line thereof, in the absence of an expression of a clear and unequivocal intention to the contrary.”

Then Judge Leddy discusses the rule of presumption, announced by many courts, relating to the conveyance of land abutting upon a public highway or a non-navigable stream, and furthermore, in the course of his opinion, uses the following language:

“The use of this presumption is merely the application in a different form of the familiar rule of construction which has always been enforced by the courts, that is, to indulge the presumption that a grantor intends to convey to his grantee all of the appurtenant rights incident to the beneficial enjoyment of property which he has conveyed. In other words, when a person conveys a piece of property abutting upon a public highway or nonnavigable stream it is but natural to assume, in the absence of an express reservation to the contrary, that he intends to convey the same with all of the beneficial rights enjoyed by him in its. use. Such benefits and advantages are usually of compelling force in inducing the sale of the property. From time immemorial, deeds of conveyance have been made to convey the title to land ‘together with all the rights and appurtenances thereto in any wise belonging or appertaining.’ It is uniformly held that appurtenances to premises essential to the proper enjoyment thereof will be held to pass whether the word ‘appurtenances’ be used or not. Simmons v. Winters, 21 Or. 35, 27 P. 7, 28 Am.St.Rep. 727; Sweetland v. Olsen, 11 Mont. 27, 27 P. 339; Crooker v. Benton, 93 Cal. 365, 28 P. 953.

“ ‘The word “appurtenances,” ’ says the Supreme Court of CalifQrnia, in the case of Cave v. Crafts, 53 Cal. 135, ‘is not necessary to the conveyance of the easement. The general rule of law is, that when a party grants a thing, he by implication grants whatever is incident to it and necessary to its beneficial enjoyment. The incident goes with the principal thing. The idea and definition of an easement to real estate granted is, a privilege off and beyond the local boundaries of the lands or tenement conveyed.’ ”

Judge Leddy discusses at length the case of Stuart v. Fox, 129 Me. 407, 152 A. 413; and calls particular attention why the rule should apply to conveyances of land adjoining a railroad right of way, by virtue of certain articles of the Revised Civil Statutes of Texas, and also, in the course of his opinion, said:

“The court in Stuart v. Fox, supra, justified the application of the rule in conveyances of land bounded upon highways or nonnavigable streams upon reasons which we think are perfectly sound and logical. It was there held that the rule should not be applied upon mere considerations of public policy. There was before the court in that oase the question as to whether it would extend this presumption to the conveyance of land bounded by a railroad right of way. It refused to so extend the rule, stating that the underlying reasons for applying it to streams and highways did not exist in the case of land bounded upon a railroad right of way. It was assumed that the railroad’s use of the 'right of way was exclusive, and that therefore there were no appurtenant advantages in connection with such strip of land which the adjoining landowner was entitled to enjoy in the proper use of his premises.

“We do not agree with this latter assumption. It may be admitted that one owning land adjacent to a railroad right of way does not enjoy the same advantages and benefits as are incident to property bounded by a highway or stream. There are, however, certain benefits and privileges just as substantial, though differing in kind, enjoyed by a person owning land situated upon a railroad right of way. Under the law of this state, railroads are required, upon the application of abutting landowners, to put in private road crossings at certain specified distances along its right of way for the benefit of such owners. Article 6321, R.S.1925. These private ways are of material advantage to the adjacent landowners as they furnish means of ingress and egress to and from their premises as well as convenient outlets to public highways.

“Again, railroad companies, in building their roadbeds, often construct high dumps on portions of their right of way, while on the other portions deep cuts are made. The statutes of this state require them in constructing their roadbed to provide and maintain such culverts and sluices as may be necessary to protect adjacent owners in the proper drainage of their lands. Article 6328, R.S.1925. If it be determined that these narrow strips of right of way do not pass with the grant when land is sold which abuts on a railroad right of way, upon abandonment of the easement by the railway company, the adjoining landowner will be deprived of substantial benefits and privileges, as the then owner of such narrow strip of land would not be required to maintain private roads across the same, nor would he be subject to the same burden as railway companies in maintaining culverts and sluices.

“It is apparent, therefore, the adjoining owner enjoys valuable privileges and advantages in the ownership of the narrow strip of land burdened with the railroad easement. On the other, hand, such a strip is usually of little practical value to his grantor. These material _ advantages constitute appurtenances to the adjoining land. They furnish as sound a basis for the application of the presumption of their conveyance as exists in the cases of grants of land situated on highways and streams. An owner of property adjoining a railroad right of way'in conveying the same to another without including the narrow strip burdened with the railroad easement is omitting to grant valuable appurtenant rights incident to the beneficial use and enjoyment of the premises, as much so as he is when he fails to convey to the center of a public highway or stream.”

Judge Leddy sums up his holding in the following language: “The question as to whether the presumption should be extended to conveyances of land bordering upon railroad rights of way has been often presented to the courts of this country. The overwhelming weight of authority sustains the application of the rule to conveyances of land situated upon railroad rights of way.”

But it is contended that the case of Couch v. Texas & Pacific Railway Co., 99 Tex. 464, 467, 90 S.W. 860, should control the decision of this case. That case was cited and considered in the Weed case. The opinion jn the Weed case is the latest expression of this Court upon that question, and, unless overruled, should control here.

The deed from Campbell to Castleberry, in 1898, conveyed all the land owned by Campbell in that tract north of the railroad right of way. He still owned 68 acres on the south side of the right of way, which he conveyed to Turner on October 31, 1904;. and at that time Turner owned the Neal tract, which, as shown' on the plat, abuts the railroad right of way opposite the land sold by Campbell to Castleberry; and thereafter Campbell owned no land on either side of the right of way in that vicinity. Thus it will be seen that the heirs of T. M. Campbell' are now claiming that he retained this narrow strip, and that same was not conveyed .in the deeds above described. It is also claimed that this narrow strip would not be considered “appurtenance” to the adjoining land after the two tracts of' land above indicated have been conveyed for more than thirty years.

The rule has been definitely announced in the Warwick and Weed cases that where a deed conveys by specific field notes land abutting on a street or public highway or railroad right of way, it conveys title to the property to the center of the street, public highway, or railroad right of way; and such rule is not overcome even though the field notes describing the land stop at the side line of the street, public highway, or railroad right of way, unless a contrary intention is expressed in plain and unequivocal terms. We are unable to distinguish the rule applicable to the facts of this case from the rule announced in the Weed case. To hold that the deed from Campbell to Castleberry did not carry title to the center of the railroad right of way would be contrary to the rule announced in the Weed case.

A brief has been filed herein by the Attorney General as amicus curiae, calling this Court’s attention to certain suits now pending in the courts of this Statq, involving the rights of parties in certain lands sold by the State, and calling for the right of way of the Texas & Pacific Railway Company. as the boundary . line of such tracts of land, and it is contended that a decision here should not determine the rights of the parties involved in those suits. The issues involved in those suits are not before us for decision, and we express no opinion on'the merits of those suits.

It is shown that'a producing oil well has been drilled by certain parties to this suit on the land in controversy as shown on 'the plat, and all parties to this suit have agreed as to the méthod of settlement of certain matters' incident to said land and oil well when the title to the land will have been determined.

By virtue of the rule announced in the Weed case, plaintiffs in error- are entitled to recover the land in controversy, subject to the rights of the railroad company. Therefore the judgments of the trial court and of the Court of Civil Appeals will be reversed, and this cause will be remanded to the trial court with instructions to enter judgment in accordance with this opinion and the agreement made by the parties, subject to the rights of the Texas & Pacific Railway Company.


author: CRITZ, Justice.

text:
    STATE v. CITY OF EL PASO.
    No. 7754.
    Supreme Court of Texas.
    Oct. 9, 1940.

      Gerald C. Mann, Atty. Gen., and George W. Barcus, Pat M. Neff, Jr., and Ocie Speer, Asst. Attys. Gen., for plaintiff in error.
    Frank B. Clayton, City Atty., Ernest Guinn, and Coyne Milstead, all of El Paso, for defendant in error.
   CRITZ, Justice.

This suit was filed in the District Court of Travis County, Texas, by the State of Texas against the City of El Paso, Texas, a municipal corporation, to recover taxes, penalties, and interest upon 70,-579 gallons of gasoline alleged to be payable under the motor fuel tax laws of this State. The State was awarded a judgment in the district court. The Court of Civil Appeals at Austin reversed this judgment, and rendered judgment for the City of El Paso. 135 S.W.2d 763. The case is in this Court on writ of error granted on application of the State.

The City is a municipal corporation duly incorporated under the laws of this State, and was such during all the times here involved. The City imported from the State of New Mexico 70,579 gallons of gasoline and used same in its police cars, fire trucks, and other motor vehicles. Such motor vehicles were operated exclusively on the streets of the City, and purely for municipal and governmental purposes. It is admitted that the City has paid no taxes on the use of such gasoline.

It is contended by the State that the City is liable to pay the State the four cents per gallon tax levied by Article 7065a — 2, Vernon’s Texas Statutes, 1936. In this connection, the State contends that under the above facts the City made the first sale of this gasoline in this State within the meaning of the pertinent provisions of Article 7065a — 1.

As we interpret its briefs and arguments, the City contends: (a) That the statutes of this State do not attempt to levy the four (4) cents motor fuel tax in effect in this State against municipal corporations; and (b) that if such statutes do make such attempt, they are to that extent unconstitutional and void.

Subdivision (a) of Article 7065a — 2 imposes “an occupation or excise tax of four (4) cents on each gallon of motor fuel or fractional part thereof.”

Subdivision (b) of Article 7065a — 2 provides that: “The tax shall accrue on the first sale so that a single tax only will be collected on the same gallon of motor fuel, it being intended to impose the tax at its source in Texas, or as soon thereafter as such motor fuel may be subject to being taxed.”

Subdivision (b) of Article '7065a — 1 defines “Motor Vehicle” to “mean and include every vehicle operated upon the highways of this State which is propelled by the use of motor fuel.”

Subdivision (c) of Article 7065a — -1 defines “Distributor” as follows: “(c) ‘Distributor’ shall mean and include every person in this state who refines, manufactures, produces, blends or. compounds motor fuel, or in any other manner acquires or possesses motor fuel and makes first sale of the same in this State; and it shall also include every person in this State who ships, transports or imports any motor fuel into this State and makes the first sale of same in this State.”

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

Subdivision (e) of Article 7065a — -1 defines “Person” as follows: “(e) ‘Person’ shall mean and include every individual, firm, association, joint stock company, syndicate, co-partnership, corporation, trustee, agency or receiver.”

Subdivision (f) of Article 7065a — 1 defines “Dealer” as follows: “(f) ‘Dealer’ shall mean and include every person other than a distributor who engages in the business in this State of distributing or selling motor fuel within this State.”

Subdivision (g) of Article 7065a — 1 defines “Public Highway” as follows: “(g) ‘Public Highway’ shall mean and include every way or place of whatever nature open to the use of the public as a matter of right for the purpose of vehicular travel.”

We shall first dispose of the contention of the City to the effect that, if our motor fuel tax laws attempt to levy the four cents motor fuel tax thereby imposed on a municipal corporation, such laws are, to that extent, in violation of our State Constitution.

A careful examination of our Constitution discloses that the only inhibitions, restraints, or exemptions contained therein with reference to municipal corporations are found in Section 1 of Article VIII and Section 9 of Article XI, Vernon’s Ann. St. Const.

So far as pertinent here, Section 1 of Article VIII of our Constitution provides: “Section 1. * * * All property in this State, whether owned by natural' persons or corporations, other than municipal, shall be taxed in proportion to its value. * * * It may also impose occupation, taxes, both upon natural persons and upon corporations, ' other than municipal * * ⅜. It may also tax incomes of both natural persons and corporations other than municipal, * *

Section 9 of Article XI of our Constitution reads as follows: “Sec. 9. The property of counties, cities and towns, owned and held only for public purposes, such as public buildings and the sites therefor. Fire engines and the furniture thereof, and all property used, or intended for extinguishing fires, public grounds and all other property devoted exclusively to the use and benefit of the public shall be exempt from forced sale and from taxation, provided, nothing herein shall prevent the enforcement of the vendors lien, the mechanics or builders lien, or other liens now existing.”

An examination oi tire above-quoted constitutional provisions discloses that they operate to exempt municipal corporations from only three classes of taxes. These are ad valorem taxes, occupation taxes, and income taxes. It is too plain to admit of debate that the taxes here sought to be recovered by the State are not ad valorem or income taxes. We are therefore left to determine only the question as to whether or not they are occupation taxes. Of course, if they are occupation taxes, the City is exempt under Section 1 of Article VIII of our Constitution, supra.

As already shown, the City purchased this motor fuel, or gasoline, from a dealer in New Mexico. The City then had such gasoline transported to Texas, and used it in its motor vehicles operated on its streets. No actual sale ever took place in Texas. (We here use the term sale in its ordinary sense.) It follows that if any tax is due the State in this instance, it is by virtue of the fact that this motor fuel was used in motor vehicles operated on the public highways of this State. By no known rule of law can a tax levied on such use be classed as an occupation tax. ' It follows that the tax here sued for is manifestly a tax on using motor fuel in the operation of motor vehicles on the public highways of this State. Such tax is an indirect or excise tax. This being true, the constitutional exemption of municipal corporations from occupation taxes cannot apply.

We now come to determine whether or not our motor fuel laws impose this tax on municipal corporations. Subdivision (a) of Article 7065a — 2, supra, imposes a four cents tax on each gallon of motor fuel or fractional part thereof. Subdivision (b) of the same Article makes such tax accrue on the “first sale.” Also, under such subdivision (b) a single tax only will be collected. Subdivision (d) of Article 7065a — 1 defines “first sale” to “mean and include the first sale * * * or use in this State.” From the several statutory provisions it is evident that the legislative intent, as expressed in the above statutes, is to impose a motor fuel tax of four cents per gallon on the first sale of motor fuel, where such fuel is actually sold in Texas. It is further evident that the Legislature intended to impose a four cents per gallon user tax on all motor fuel used on the public highways of this State in instances where the user obtains such motor fuel under such circumstances that no actual sale thereof transpires in Texas. Simply stated, when our motor fuel tax laws are read and construed as a whole, it is evident that the tax levied for use of motor fuel in this State and the tax levied for sale of motor fuel are the same. Under the express words of the statute, use of motor fuel without actual sale in this State is still a statutory sale; that is to say, “first use” is the “first sale” for taxation purposes where there is no actual first sale.

We now come to determine whether or not a dealer who sells motor fuel to a city for municipal use by such city on the public highways of this State is exempt from the four cents per gallon motor fuel tax levied by our motor fuel tax laws. Again referring to the above-quoted statutes, we find that they contain no direct provision making such exemption. Also, we find that such statutes contain no language which would justify us in construing them as intending such an exemption. It follows that dealers who sell motor fuels to cities in this State for use on public highways are liable to pay the statutory four cents per gallon motor fuel tax levied by our motor fuel tax laws. It further follows that cities which use motor fuel upon the public highways of this State, not actually sold in this State, are due to pay a user tax thereon of four cents per gallon.

The City earnestly insists that our motor fuel tax statutes cannot be held to apply to it because it is not a “Person” within the meaning of subdivision (e) of Article 7065a — d, above quoted. The statute just mentioned, so far as' applicable here, defines “Person” as to “mean and include every * * * corporation, * * * agency, * * *.” The City contends that it is not a corporation or agency within the meaning of the above statute. We are aware of the fact that it is a general rule of statutory construction that a tax imposed by law upon corporations will not be held to be imposed upon municipal corporations unless the intent to do so clearly appears, or, stated in another way, is free from doubt. In this instance we think that beyond any doubt our motor fuel tax laws tax the first actual sale of motor fuel in this State, regardless of whether or not it is sold to a city. To hold that a city can purchase motor fuel outside the State and escape the user tax would be to hold that the Legislature has deliberately enacted a law which would, for all practical purposes, prevent dealers within the State from selling motor fuel to cities and other governmental agencies. We do not believe that the statutes evidence any such intent. We think the statutory definition of “Person,” as contained in subdivision (e) of Article 7065a — 1, covers all corporations or agencies which actually sell motor fuel in Texas. This being true, the statute also covers all corporations or agencies which use motor fuel when there is absent an actual sale in this State.

It appears that all the gasoline, or motor fuel, here involved was used by the City in motor vehicles belonging to it and operated by it on its own city streets. This fact can give no comfort to the City. The motor fuel here involved was used on the public highways of this State, because subdivision (g) of Article 7065a — 1 provides that: “ ‘Public Highway’ shall mean and include every way or place of whatever nature open to the use of the public as a matter of right for the purpose of vehicular travel.” Certainly a street of a city is a “Public Highway” within the meaning of the statute just mentioned.

We have carefully read and considere.d the opinion of the Court of Civil Appeals in this case. As we interpret such opin-' ion, it does not hold that cities are exempted from these taxes under our Constitution. In fact, we interpret such opinion to hold to the contrary. We agree with such holding.

The Court of Civil Appeals holds that even in instances where motor fuel is purchased by municipal corporations outside this State and used by them on our public highways, no user, tax is imposed upon such corporations by our motor fuel tax laws. The .Court of Civil Appeals then reasons and holds that since no user tax is imposed upon, municipal corporations in such instances, no sales tax is imposed upon dealers who sell motor fuel to municipal corporations within this State. If we were in accord with the holding as to the user tax, we would be compelled to agree with the holding as to the • sales tax. We approach the question from the opposite direction. We hold that our motor fuel tax laws undoubtedly impose a motor fuel tax upon dealers who sell motor fuel to municipal corporations in this State for use on our public highways. We then hold that it must follow that where motor fuel is purchased by municipal corporations outside this State, such corporations are due to pay the user tax where such motor fuel is used on public highways in this State.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court affirmed.

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


author: SHARP, Justice.

text:
    TRADERS & GENERAL INS. CO. v. GARRY.
    No. 7494.
    Supreme Court of Texas.
    Oct. 9, 1940.

      Lightfoot, Robertson & Gano, and .Dan P. Johnston, all of Fort Worth, and Barnes & Barnes, and J. Austin Barnes, all -of Beaumont, for plaintiff in error.
    Shivers & Keith and Quentin Keith, all of Port Arthur, for defendant in error.
   SHARP, Justice.

This is a compensation case. The case was submitted to the jury on special issues. Roy Garry recovered a judgment in the trial court against Traders & General Insurance Company for the sum of $2,501.56, to, be paid in a lump sum. The Court of Civil Appeals at Beaumont affirmed the judgment of the trial court. 118 S.W.2d 340.

We will designate the plaintiff in .error as Insurance Company and the de- . fendant in error as Garry.

This Court granted a writ of error, based substantially on the following propositions : That Garry brought this suit on the ground that he was an employee of Mose Sampson, and alleged that he was injured while working as an employee of Mose Sampson; that the undisputed evidence'shows that he was injured while working for Mose Sampson, and that there was no evidence that he ever presented a claim to the Industrial Accident Board asking for compensation as an employee of Mose Sampson; that the undisputed evidence shows that the notice of injury and the claim for compensation based on the injury alleged a claim and presented a claim based upon the alleged fact that he was an employee of the- Sampson Iron & Supply Company;that while the undisputed evidence shows that the only claim originally, presented by Garry and heard by the Industrial Accident Board was a claim based upon the alleged fact that he was an employee of the Sampson Iron '& Supply Company, as a ma'tter of law Garry failed to make out a prima facie case and failed to establish jurisdiction of the trial court; and that the Insurance’ Company’s motion for an instructed verdict should have been granted, or the suit dismissed.

In answer to the contentions made by the Insurance Company, Garry contends, in substance: That the undisputed evidence shows that he sustained an accidental injury in the course of his employment with Mose Sampson, which resulted in disability; that the employer and the.Insurance Company both had actual notice of said injury and the accompanying disability; that the Traders & General Insurance Company having paid Garry eight weeks’ compensation, the Industrial Accident Board made and entered an award reciting that after due notice to all persons there came on to be considered the claim for compensation by Gárry against the Insurance Company, insurer of Mose Sampson; that the undisputed testimony of Mose Sampson shows that he had a policy of workmen’s compensation with the Trader's & General Insurance Company which covered Garry; that the Insurance Company answered only by general denial, raised no objection to the introduction of the testimony, and made no complaint in the motion for new trial, but only asserted that there was a variance for the first time upon appeal; and that the Court o,f Civil Appeals did not err in holding that, the trial court had jurisdiction of the appeal from the final award of the Industrial Accident Board.

Garry pleaded that on, or about, the 30th day of September, 1936, he sustained a personal injury in the course of his employment by “Mose Sampson, doing business as Sampson Iron & Supply Company, at Port Arthur.” He further air leged that within thirty days from the date of such personal injury thus sustained the Traders & General Insurance Company had due and sufficient notice of said injury, or in the . alternative, that the defendant “had actual knowledge of said injury and accepted liability thereunder, and paid unto the plaintiff certain sums due by virtue of the- .compensation insurance laws of the State of Texas, thereby waiving any defect in such notice.” The Industrial Accident Board made its final ruling’, decision, and award on March 9, 1937, reciting that, “After due notice to all parties, came on to be considered by the Industrial Accident Board claim for compensation by Roy Garry against Traders & General Insurance Company.” The award made by the Industrial Accident Board was in Cause No. W-1714, “Roy Garry, Employee, v. Mose Sampson, Employer, Traders & General Insurance Company, Insurer.”

In the opinion of the Court of Civil Appeals, written by Chief Justice Walker, is set out in detail the steps taken before the Industrial Accident Board with reference to Garry’s claim, and that court held that the District Court had jurisdiction of the case, and stated the conclusions of that court as follows [118 S.W.2d 342]:

“On the undisputed facts, appellee at the time of his injury was in the employment of Mose Sampson, and appellant .was Sampson’s compensation insurance carrier. He brought this suit against appellant as Sampson’s compensation insurance carrier, alleging that he was injured while in the course of his employment with Sampson. In his report of injury to the Industrial Accident Board he made the statement that he was an employee of Sampson Iron & Supply Company, and that Great American Indemnity Company was the compensation insurance carrier.

⅝ * * # * *

“Before appellee filed his claim with the Industrial Accident Board appellant recognized its liability to him by paying him about 8 weeks’ compensation. It is our conclusion that' the Industrial Accident Board had before it all parties interested in the award, and made its final award as between the necessary parties — appellant as the compensation insurance carrier, appellee as the employee, and Mose Sampson as the employer.”

Garry was seriously injured, and was immediately provided treatment by the Insurance Company. Subsequently he filed his claim for compensation, asserting that he had received the injury while in the course of his employment with Sampson Iron & Supply Company. The Industrial Accident Board, recognizing that Garry possibly had made a mistake in filing his claim for compensation, corrected the same, and entered it upon the docket as a claim against Mose Sampson, employer, and Traders •& General Insurance Company, insurer.

An appeal was taken from said award by Garry, and he alleged that he was an employee of Mose Sampson, “doing business as Sampson Iron & Supply Company.” Upon, the trial the Insurance Company made no objection whatsoever to the pleadings of Garry, answered solely by general denial, and did not file a plea in abatement or a plea to the jurisdiction. In the - Court of Civil Appeals the Insurance Company for the first time raised the specific objection that Garry’s claim had not been before the Industrial Accident Board, and then only under an assignment that the trial court erred in overruling its motion for a peremptory instruction.

During the trial Mose Sampson testified that the Traders & General Insurance Company had theretofore issued to him a policy of workmen’s compensation insurance, covering his employees, — of whom Garry was admittedly one.

A liberal construction is to be given the acts of the Industrial Accident Board in carrying out the provisions of the compensation laws. Proceedings before the Industrial Accident Board are informal, and the law does not exact any formal method of presenting claims to that tribunal. The same strictness in presenting claims to the Board for its decision ■ does not prevail as before a court of record. It is true that Garry made the statement in his report of the injury to the Industrial Accident Board that he was an employee of Sampson Iron & Supply Company, and that the Great American Indemnity Company was the compensation carrier. The Industrial Accident Board recognized this mistake and made a correction thereof, and issued notice to all parties, including the Traders & General Insurance Company, of the claim made by Garry; and after due notice to all parties, judgment was entered in favor of Garry, as above stated. The award of the Board recites that the policy of compensation was carried by -the Traders & General Insurance Company, and the Great American Indemnity Company is not mentioned in the final judgment of the Board. There is nothing in the record to show that the Insurance Company objected to the proceedings before the Industrial Accident Board. After an appeal had been made from the award of the Industrial Accident Board, and during the trial of 'the case, no verified pleading was filed asserting a defect of parties, as required by Article 2010, Revised Civil Statutes; and the question was raised too late in the Court of Civil Appeals. American Employers’ Insurance Co. v. Hookfin et al., Tex.Civ.App., 33 S.W.2d 801, writ refused; Consolidated Underwriters v. Lee, Tex.Civ.App., 107 S.W.2d 482, writ dismissed; Security Union Insurance Co. v. Gullett, Tex.Civ.App., 36 S.W.2d 1085, writ dismissed; Associated Employers’ Reciprocal v. Brown et al., Tex.Civ.App., 56 S.W.2d 483, writ dismissed; Southern Underwriters v. Wright, Tex.Civ.App., 125 S.W.2d 1079, writ dismissed, correct judgment; Southern Underwriters v. Thomas, Tex.Civ.App., 131 S.W.2d 409, writ dismissed, correct judgment.

Garry alleged that he was an employee of Mose Sampson, doing business .as Sampson Iron & Supply Company, and made proof that Sampson was engaged in business and carried a policy of workmen’s compensation insurance covering •Garry as an employee. The record shows that the Insurance Company was given •notice that Garry’s claim was before the Board, and it made no assertion that it did not carry the compensation insurance. The undisputed evidence shows that it did carry such insurance. Garry appealed from the award of the Industrial Accident Board, and designated Mose Sampson as employer and the Traders & General Insurance Company as insurer. The trial •court submitted to the jury certain issues, .and the answers of the jury thereto con.stituted the basis upon which the judgment for Garry was predicated. The Insurance Company did not request the ■trial court to submit to the jury the issue as to whether or not Mose Sampson was doing business as Sampson Iron & Supply Company. The Insurance Company having failed to request the sub■mission of such defensive issue, it waived the right to complain now of the action •of the trial court in not submitting same. “Wichita Falls & Oklahoma Ry. Co. et al. v. Pepper, 134 Tex. 360, 135 S.W.2d 79.

The judgments of the trial court and ■of the Court of Civil Appeals are affirmed.


author: TAYLOR, Commissioner.

text:
    HOUSTON BELT & TERMINAL RY. CO. v. CLARK, Secretary of State, et al.
    No. 1834—7538.
    Commission of Appeals of Texas, Section B.
    Oct. 9, 1940.
    Andrews, Kelley, Kurth & Campbell and T. A. Slack, all of Houston, for plaintiff in error.
    Gerald C. Mann, Atty. Gen., and John J. McKay, of Austin, for defendants in error.
   TAYLOR, Commissioner.

In 1907 the first called session of the 30th legislature, Acts 1st C.S. p. S02, passed an act prescribing franchise taxes to be paid by private, domestic and foreign corporations for the exercise of the privilege of doing business within this state. In 19-19 the act was amended by the 36th legislature at its regular session (Acts 1919, p. 100) to meet the defect in the original act in requiring domestic corporations having a permit to do business outside of the state to pay franchise taxes upon its entire authorized capital stock, plus the surplus and undivided profits of such corporation, regardless of the proportion of its business done outside of the state. In 1930 the 41st legislature, at its 5th Called Session, c. 68, again amended the act, art. 7084, R.S.1925, Vernon’s Ann.Civ. St. art. 7084. The article as amended, omitting provisions not material here, reads:

“(A) Except as herein provided, every domestic and foreign corporation heretofore or hereafter chartered or authorized to do business in Texas, shall, .on or before May 1st of each year, pay in advance to the Secretary of State a franchise tax for the year following, based upon that proportion of the outstanding capital stock, surplus and undivided profits, plus the amount of outstanding bonds, notes and debentures, other than those maturing in less than a year from date of issue, as the gross receipts from its business done in Texas bears to the total gross receipts of the corporation from its entire business, which tax shall be computed at the following rates for each One Thousand Dollars ($1,000.00) or fractional part thereof; One Dollar ($1.00) to One Million Dollars ($1,000,000.00), sixty cents (60‡); in excess of One Million Dollars ($1,000,-000.00), thirty cents (30‡); provided, that such tax shall not be less than Ten Dollars ($10.00) in the case of any corporation, including those without capital stock. * *

“(B). Corporations which are now required by law to pay annually a tax upon intangible assets, corporations owning or operating street railways in or upon the public streets of any town or city, and corporations organized to maintain or owning or operating electric interurban railways, shall be required to hereafter pay a franchise tax equal to one-fifth (⅛) of the franchise tax herein imposed against all other corporations under Section (A) herein.

•“(C) Provided, however, that this Act shall not apply to corporations organized as terminal companies not organized for profit, and having no income from the business done by them.

“(D) Except as provided in preceding Clauses (B) and (C) all public utility corporations, which shall include every such corporation engaged solely in the business of a public utility whose rates or service is reguiatedj or subject to regulation in whole or in part, by law, shall pay a franchise tax as provided in this Act, except the same shall be based on that proportion of the issued and outstanding capital stock, surplus, and undivided profits, which the gross receipts of the business of said corporation done in this State bears to its total gross receipts, instead of the gross assets; and in lieu of the rate hereinbefore prescribed said tax shall be computed as follows. * * *

“For the purpose of computing the tax of corporations issuing no par stock, such stock shall be taken and considered as being of the value actually received at the time of the issuance thereof; * * *

As the construction of the act as amended in 1930 is involved, the emergency clause will be set out, which reads : “The fact that the present franchise tax law results in discrimination against corporations having par value stock on the one hand, and those having no-par stock on the other, and because a tax on the capital stock fails to reach all of the capital on which a corporation does business and therefore fails to distribute evenly the burden of taxation, as where one corporation has a small capital stock with a large capital provided from bonds, while another has a capital stock fairly representing its actual capital, and for the further reason that an attack is now being made on the validity of the franchise tax on foreign corporations, create an emergency and an imperative public necessity requiring that the constitutional rule that Bills shall be read on three several days in each House be suspended and said rule is hereby suspended and that this Act take effect and be in force from and' after its passage and it is so enacted.” (Italics ours.) Section 9.

Particular attention is directed to the italicized portion of the emergency clause.

The act was again amended in 1931, 42nd Leg., p. 441, Vernon’s Ann.Civ.St. art. 7084, by adding paragraphs (E) and (F), but that amendment has no bearing upon the question involved here. ,

■ For the year ending April 30, 1931, and for six successive years thereafter, to April 30, 1937, inclusive, the terminal company paid its franchise taxes annually in amounts ranging, with little variation, from $363.06 to $369.90, making no contention that it was not within the terms of the act as amended. The secretary of state, in 1937, after having accepted payment of the taxes annually as they accrued for the six years referred to, demanded the payment of additional taxes for each of those years and the payment of the tax for the year beginning April 30, 1937, computed on a basis other than that theretofore used. The terminal company upon receiving notice from the secretary of state advising that the tax as demanded must be paid at once to avoid statutory penalties, filed suit for an injunction against the secretary of state and the attorney general to enjoin them from taking any action to forfeit its right to do business for non-payment of the additional taxes and penalties. The taxes demanded were paid under protest into the treasury of the state and the terminal company filed another suit, including the state treasurer as a party, for recovery of taxes paid into the suspense fund of the state. The two causes were consolidated and tried as one. The trial was before the court without a jury, largely upon stipulated facts.

The trial court filed findings of fact and conclusions of law. A correct summary of the essential findings of fact, with which, as •stated by the Court of Civil Appeals, the terminal company does not disagree, is contained in the opinion of the court, which summary is as follows, 122 S.W.2d 356, 357: “Four railroad companies operating in Texas, herein referred to as the tenant lines, incorporated appellant under the laws of Texas in 1905, subscribing and paying for its capital stock of $25,000 in equal parts, for the primary purpose of furnishing themselves convenient joint terminal facilities in and near the city of Houston, and with all rights and powers now conferred by Art. 6549, R.S.1925, and by Chapters 6 and 7 of Title 112, R.S.1925, Vernon’s Ann.Civ.St. arts. 6316 et seq., 6341 et seq., relating to railroads. To effectuate its primary purpose, appellant obtained in 1907, a loan of $5,000,000 from Central Trust Company of New York, and secured it by a mortgage lien on all of its properties, the note and mortgage being executed by appellant alone. As a part of the loan agreement and as additional security therefor, each of the tenant lines pledged its capital stock of appellant, with certain default provisions, to secure their agreement to pay in equal parts the annual interest and sinking fund requirements of the loan, which payments were to and have been made by the tenant lines directly to the trust company for the benefit of the appellant terminal company. The stock trust agreement also provided that the trust company shall be entitled to the dividends of appellant’s stock, which shall be applied against any payment in arrears due by any tenant line for annual interest or sinking fund due on either the ‘Terminal Agreement’ or loan, or on the ‘Stock Trust Agreement’ of the tenant lines. No dividends have' ever been paid on this stock. The annual interest and sinking fund payments have been regularly made for thirty years and have reduced the original $5,000,-000 indebtedness of appellant to less than $3,700,000; and such payments will eventually retire the entire indebtedness, which is in accordance with the terms of the contract and in contemplation of the tenant lines and appellant; and which had resulted in decreasing the liabilities of appellant and in increasing its assets to the extent of over $1,300,000 at the time of the trial as found by the trial court; and which amount it found to be profits and especially so when viewed in the light of the agreement between' the tenant lines and appellant with regard to payment by the tenant lines of its fixed costs and a part of its operating expenses. That is, in addition to and independently of the agreement of the tenant lines to pay the annual interest and sinking fund requirements to amortize the $5,000,000 indebtedness of appellant, thereby leaving its properties unencumbered, the tenant lines also contracted with appellant to pay in equal parts its fixed cost, taxes, rents, etc., and also a part of its operating expenses. But knowing that under the laws of Texas (now Art. 6,445, R.S. 1925) appellant terminal company would be required by the Railroad Commission to perform terminal services for other railroads demanding such services, and to make such ■ charges therefor as might be fixed by the Railroad Commission or by the Interstate 'Commerce Commission, the tenant lines and appellant agreed that such income from outside railroads would be used by appellant to defray its current operating expenses, and that any remaining deficit for operating expenses would be paid monthly by the tenant lines, the amount to be paid by each tenant line to be determined on a user basis of the tenant line for the current month. The annual operating expenses of appellant (exclusive of interest, sinking fund, and other fixed charges) have averaged approximately $1,700,000, and its income from charges made under order of the Railroad Commission for services to other railroads, such as ‘switching’, revenues and incidentals, and income from rent,’ has averaged approximately $190,000 annually. And each month the tenant lines have paid the deficit operating expenses, each paying its pro rata share .uetermined on a user basis.” (Italics ours.)

To the foregoing summary is added the further fact that it appears from article II of the charter of the terminal company set out in the stipulation of facts upon which the case was tried, that, "in addition to the rights conferred by law upon corporations generally,” the company “shall, have and exercise"all the rights, powers and privileges conferred upon railroad companies.” (Italics ours).

The stipulation contains also a certification by the then secretary of state, that according to the franchise tax reports filed in that office by the terminal company on March 10, 1931, and March 12, 1937, respectively, the company’s balance sheets reflect, among other things, that its assets on December 31, 1929, (land, buildings, machinery and equipment, furniture and fixtures) were valued at $6,075,970.25, and on December 31, 1936, at $6,233,873.84. Mr. Eckert, the auditor of the terminal company, testified that the liabilities of the company had been decreased and that its assets had not diminished in proportion.

Attention is directed also to a portion of the testimony of Mr. Batsell, an "expert accountant, who had examined the statement of the financial condition of the company as prepared by the company’s auditor. The testimony referred to reads: “Orie of the facts disclosed by the comparative balance sheets is that the company made a profit during the period from December 31, 1929, to December 31, 1936, of $433,578.93. That is determined by comparing the assets owned by the company at December 31, 1929, of $6,655,342.31 with the assets owned by the company December 31, 1936 of $6,-688,079.31 or an increase in assets of $52,-737.00 * * * over the period from December 31, 1929 to December 31, 1936, a period of seven years;. but we also had to look up a change in the liability of the company how much they have showed" at the beginning of the period and at the end of the period, which shows they owed $400,841.93 less on December 31, 1936, than they owed at December 31, 1929.”

The trial court’s conclusions of law read:

“1. I find that the plaintiff is a terminal company within the meaning of Subdivision (C) of Article 7084 of the Revised Statutes of 1925, as amended.

“2. I find that plaintiff was ‘organized for profit’ within the meaning of Subdivision (C) of Article 7084 of the Revised Statutes of 1925, as amended.

“3. I find that plaintiff, during the taxable years in question has had an ‘income from the business done by it’ within the meaning of Subdivision (C) of Article 7084 of the Revised Statutes of 1925, as amended.”

Upon the foregoing findings and conclusions and the stipulation of facts the trial court rendered judgment denying the relief sought by the terminal company, and' rendering judgment for the state as set out in its decrees. The Court of Civil Appeals, affirmed the judgment. 122 S.W.2d 356.

The company states in its application for-writ of error that the sole question before this court is whether, under the facts, it is a. terminal company “not organized for profit,” and “has no income” from its business,, within the meaning of section (C) of article 7084, as amended.

Unless the findings of the trial court are-without evidence to support them, its conclusions of law are correct. The stipulation of facts upon which the case was tried' and the testimony received in connection therewith disclose that the findings' are-abundantly supported. In the absence of' any qualifying definition of the terms “profit” and “income” used in the exempting’ statute we cannot escape the conclusion that under the facts stated the terminal company is the recipient of an income and was organized for profit within the meaning of subdivision (C) of the statute as amended,, and that it is not such a terminal company-as is exempt under its provisions.

Upon final consideration of the record we-have concluded that judgments of the courts, below are correct and that the writ was improvidently granted. We approve the holdings of the Court of Civil Appeals as stated in its opinion.

It appears that the gist of the reasoning upon which the court predicates its holding' upon the question involved is stated in the following excerpts from the opinion:

“The exempting statute (Subdivision (C)does not attempt to define nor limit the phrases or terms, ‘not organized for profit’ and ‘having no income from the business done by them,’ The two key words involved are ‘profit’ and ‘income’, and since the act does not define them singly, nor the phrases in which they are used, they must be given the meaning ordinarily attributed to them.

“So considering appellant as a separate corporation, which must be done because it has so incorporated itself, the various amounts which the tenant lines have contracted to pay to it or for its benefit in consideration of the terminal services furnished them by appellant, are not different in the sense that same are profit and income from the business done, from the charges paid to appellant by all other railroads for the use of its terminal facilities and services; and since the sum total of all such revenue or income, less .all expenses, is profit, which appellant’s charter authorized it to make, it must be held to be ‘organized for profit’ o within the meaning of the term as used in the taxing act. And since such charges and payments to appellant or for its benefit are in consideration of the use of its terminal facilities and services, they constitute as a matter of law ‘income from the business done by’ it within the meaning of that term as used in the taxing act.”

'The terminal company contends that the legislature knew when sections (C and D) of article 7084 were enacted that the corporations exempted by the former section were public utilities, because it expressly recognized in the latter section that the former exempted “certain public utility corporations” ; and that the legislature knew from “common knowledge” that the exempted corporation- necessarily had an income of some kind because all terminal railways were regulated as to rates or service as provided by article 6549, R.S.1925, when sections (C and D) were enacted.

The company argues in effect from the foregoing contentions as a premise that the legislature did “a meaningless act in including section (C) in the article” as an exemption on the basis of having “no in- . come” from its 'business unless the term, “no income” meant to the legislative mind only such income as may be earned by a “public utility corporation” whose rates and service are regulated by law, which, the company concludes, is, as applied to it under the stipulated facts, “no income” in so far as conducting a business for profit is concerned.

Aside from the assumptions upon which if proceeds, the argument is not convincing, and is beside the questions involved. Assuming (but not deciding because not necessary to a decision of the case) that the terminal company is a “public utility corporation,” the stipulated facts do not disclose as a matter of law, and the company failed, to establish in the trial court, that the income received by it from its operations as a terminal company did not, in the language of the company’s argument; “represent any material profit” in view of the large capital employed in the business.

The contention as to “material profit” is predicated upon the assumption that the income received from the outside lines constitutes its entire profit income.

The assumption is correctly rejected by the Court of Civil Appeals. It points out that the amounts which the tenant lines contracted with the company and the mortgagee that they would pay the company, is in consideration of the terminal services to be furnished by the company; under the company’s planned financial structure and operation that it has already reduced the company’s indebtedness more than $1,300, 000, and that it is implicit in the contract and organization plan that its entire indebtedness will ultimately be completely retired. The testimony of the company’s auditor that in his opinion the purpose of the organization of the company was to effect “greater economy and convenience” for the tenant lines is not inconsistent with the conclusion reached by the trial court and the Court of Civil Appeals, as above stated. The reasons for the conclusion are elaborated in that portion of the court’s opinion succeeding the above excerpt therefrom (122 S.W.2d pages 358, 359, paragraphs (1) and (2), which portion we refer to and adopt, but in the interest of economy of space do not incorporate herein.

The contention of the terminal company finds complete answer in the opinion of the Court of Civil Appeals, which we approve in its entirety.

It is not amiss in this connection to point out that the emergency clause (set out above) of article 7084, as amended in 1930, at the time section (C) was included in the act, is persuasive that it was not the legislative intent to exempt from the payment of the franchise tax imposed, terminal companies such as the present company is found by the trial court to be under the stipulated plan of organization.

This is a fact case and in this connection we direct particular attention to, and approve,'the concluding paragraph (4, 5) of the Court of.Civil Appeals.

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

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

Adopted by the Supreme Court.


author: GRAVES,' Judge. BEAUCHAMP, Judge.

text:
    CLARK v. STATE.
    No. 21127.
    Court of Criminal Appeals of Texas.
    June 5, 1940.
    Rehearing Denied Oct. 16, 1940.

      Shead & Smith, of Longview, for appellant.
    Lloyd W. Davidson; State’s Atty., of Austin, for the State.
   GRAVES,' Judge.

Appellant was charged with the offense of burglary of a private residence at nighttime, and was by the jury assessed a penalty of twenty years in the penitentiary, hence 'this appeal.

It appears from the facts that Mr. Sample and his wife lived in Longview, Texas, and while away on a summer trip to California they left a negro by the name of Hefiry Johnson in charge of their home. Johnson slept in a room over their garage, but had a key to the home, and 'went in there and cooked his meals in the kitchen. He had been working for them for many years. ,He cleaned the house, and sometimes slept in there. There was a large lock on the door similar to a Yale lock, and there was in the house some expensive silverware as well as other things such as women’s wearing apparel. On the evening a little after dark Johnson testified he was watering the flowers just in front of the front door, and it was closed. That the next morning, after he had gotten up about six o’clock, he discovered the house was open. The sun was up and shining at the time of this discovery. It appears that the entry was made through the front door, which was evidently damaged in making an entrance, since the house had a new door at the time of this trial.

The State showed that Mrs. Gordon Clark, appellant’s wife, had- some valuable silverware, identified as having been taken from this house at the time of the burglary, and that she left the same with a Mrs. Joel (Red) Roberts in Shreveport, Louisiana, in the presence .of Mrs. Roberts and and Mrs. Robert Earhart on Tuesday evening July 25, 1939, at about 8:30 o’clock in the evening. The State then offered the statement of appellant, which reads as follows, omitting formal parts:

“My name is William Gordon Clark.' My address is Longview, Texas. I am 37 years old. I have been going to Spring-hill, Louisiana, on several occasions to play cooncan. About two months ago I went over to Springhill, Louisiana, and played. with a negro by the name of J. C. Nathan Hall, a big yellow negro. I beat him out of twenty-five or thirty dollars. We got in an argument, then he left and came back with a nickel plated pistol. I beat him out of this gun. Then he went back and got some silverware. I paid him $8.00 for this silverware. The silverware is the same silverware that my wife (Eugenia) sold Mrs. Red Roberts in Shreveport, Louisiana, a few days later.

“The silverware shown me in the police station today is the silverware that I got from this negro in Springhill, Louisiana. The pistol I got from this negro is the gun that the sheriff in Gilmer got from me.”

It will be noted that this burglary is s'hown to have taken place. on July 24, 1939; that appellant’s written statement contains an exculpatory matter, that is, that he bought this identical silverware that his wife took to Louisiana from a negro named Nathan Hall, with whom he was gambling at such time. The State endeavored to disprove this -exculpatory statement by the following testimony of Savannah Williams:

“My name is Savannah Williams. I live in Minden,. Louisiana. I came over here this morning with Mr. Huff, Deputy Sheriff.

“In answer to your question as to whether or not I know a negro by the name of J. C. or Nathan Hall; will say, I knew a negro named Nathan Hall.

“I knew 'Nathan Hall about two and a half years. He is now dead. I killed him on the 13th day of July, last year.

“I do not know the defendant, Mr. Clark. I have seen him.

“I have seen Mr. Clark around my house with Nathan Hall.”

Of course if this silverware was stolen on July 24, 1939, and Nathan Hall died on July 13, 1939, then appellant’s exculpatory statement seems to have been dis-proven. There is left, however, the in-culpatory portion thereof, wherein he admits possession of this property shown to have been recently stolen from the Sample home.

The appellant offers an alibi witness, Walter Williams, who testified that he ran a gambling house and that appellant was at this house from July 21st to July 25th, 1939, in Springhill, Louisiana, about fifty miles from Longview, Texas. There is some further testimony that the appellant and three other men went into Shreveport, Louisiana, to see the witnesses Mrs. Earhart and Mrs. Roberts, and asked them whether they were coming to. Texas to testify, and asked them “if his attorney asked them if he, appellant, was with Mrs. Clark when she brought the silverware there to say that he was not along, that she had a married man in the car with her from Longview. He said he hoped we did not appear in court against him as it would go hard with him.”

Bill of exceptions No. 1 complains of the failure of the allegation and proof to correspond, in that it was shown that the private residence, alleged to have been burglarized was owned, occupied and controlled by Clark Sample, and that Henry Johnson was not the owner, occupier nor controller thereof. In our opinion Henry Johnson was in possession, care and control of such house, and the special ownership could have been properly alleged in him. During Mr. Sample’s absence from such residence Johnson had absolute control, care and custody of -such house, cleaning the same, keeping the premises, and actually using the kitchen each day. True, he slept in another room on the premises, but always each day performing certain duties therein, and ■ possessed of a key to such private residence. We quote from Branch’s Penal Code, p. 1272, Sec. 2324: “Ownership may be directly alleged in the person in possession, that is, in the actual care, control and management of the property at the time of the alleged burglary, and it is not necessary to allege how such person, who is in law the special owner, came to be such owner. Linhart v. State, 33 Tex.Cr.R. 504, 27 S.W. 260; Reed v. State, 34 Tex.Cr.R. 597, 31 S.W. 404; Alvia v. State, 42 Tex.Cr.R. 424, 60 S.W. 551; Johnson v. State, 48 Tex.Cr.R. 339, 88 S.W. 813.”

Bill of exceptions No. 2 relates to an objection relative to Mr. Sample’s qualifications when he testified that a certain silver bowl taken from his home at the time of the burglary had the value of $350. This testimony was not material, and an estimation of its value could have no effect either one way or another upon the case presented. The appellant was charged with burglary with intent to steal and not felony theft, and according- to his own statement he was in possession of personal property taken from the burglarized house, and its actual value was immaterial.

Bill of exceptions No. 3 is a complaint because the witness Clark Sample was allowed to testify that there were other and less valuable articles of silverware in the house that were not taken by the burglars, as well as other articles which were taken in the way of wearing apparel which were expensive, while other apparel not so expensive was left, but scattered about on the floor of the house. We think these matters were material- possibly in that they might have had some .bearing as to what kind of person was able to make such a selection from the opened house; and surely such circumstances were a part of the transaction itself.

Bill of exceptions No. 4 is based upon the admission of the appellant’s statement before the officers, the effect of which was to show that he had possession of some of the articles taken from the house, but to explain such possession in a manner that would have exculpated him from such burglary. This statement was objected to because it was said to have been made after an improper warning had been given to the appellant. We set forth the warning found in the instrument which we think is sufficient, see Art. 727, C.C.P.: “To Whom It May Concern:

“After I have been warned by Louis Grigsby the person to whom said statement is made that I do not have to make any statement at all, and that any statement I make may be used in evidence against me on the trial for the offense or offenses concerning which this statement is herein made, I wish to make the following voluntary statement to the aforesaid person:”

Bill of exceptions No. 5 complains of the testimony of Mrs. Earhart in that she was allowed to testify that Mrs. Gordon (Eugenia) Clark brought a portion of the silverware (afterwards identified as a portion of the property taken from the burglarized house) to the home of Mrs. Roberts in Shreveport, Louisiana, because it was contended that there was no connection shown between the defendant and his wife, or that defendant ever had possession of such silverware, nor was he present at the time of the delivery thereof. We think ah answer thereto lies in appellant’s statement in which he says: “The silverware is the same silverware that my wife (Eugenia) sold Mrs. Red Roberts in Shreveport, Louisiana,' a few days later. The silverware shown me in the police station today is the silverware that I got from this negro in Springhill, Louisiana.” 'We are impressed with the opinion that this, above statement connects appellant rather closely with the possession of this stolen property, and the acts of his wife in disposing of the same would be admissible against him where his own testimony shows-their connection therewith.

Bill of exceptions No. 6 complains of the fact that the reporter’s notes of the testimony of Mrs. J. M. (Red) Roberts taken on a former trial of this case-were introduced in evidence over the objection of the. defendant “without first accounting for the absence of the said Mrs. Roberts as a witness, for the reason that it was not shown that Mrs. Roberts was not available as a witness, and the-State did not account for her absence and no showing was made that Mrs. Roberts-could not be obtained as a witness for the-State.”

It was shown that Mrs. Roberts, who resided in Shreveport, Louisiana, was sick in a hospital in- Hot Springs, Arkansas, and was not able to be present at the trial and testify in person. It was also shown that she had been present at a former trial and had testified therein,, and her testimony there ’given was reproduced in this trial. This court has often held that where a witness at a former trial is absent and his attendance-can not be procured, under certain circumstances, the - stenographic notes of his testimony, properly proven up, were admissible. Smith v. State, 66 Tex.Cr.R. 593, 148 S.W. 722; also see Vernon’s Ann.Crim.Statutes, Vol. 1, C.C.P., Art. 3, and many authorities thereunder. According to this long line of decisions following-the Robertson case, Robertson v. State, 63 Tex.Cr.R. 216, 142 S.W. 533, Ann.Cas. 1913C, 440, we hold that no error is here shown. Where a defendant has once been confronted by the witness with opportunity for cross-examination, and upon a further trial the witness is dead, insane or beyond the jurisdiction of the court, his testimony given on a former trial can be reproduced by one who knows the same.

Bill of exceptions No 7 complains because therein it is contended that the jury was allowed to separate while deliberating upon their verdict. It seems that the juror Mr. Northcutt — when he ascertained that he would be held over the lunch hour, and' while the attorneys and the court were all in the court room, as the jury retired to their room just off the court room together — picked up the telephone, which was on the judge’s desk, and called his wife and told her to go to school after their son, that he would not be able to get away to do so, and Mrs. Northcutt agreed to do so and asked him would he be home that night, and he said “I hope so”. That this was all the conversation had between them, they both testified on the motion for a new trial. The trial judge heard a portion of the conversation, and perceiving that this man was a juror, he took charge of him and immediately took him to the jury room about twenty .feet away and placed him with his fellow jurors. The court’s qualification shows that the juror had no further conversation with anyone, and that the court and the attorneys were in plain view of the juror at all times during this separation. We think that the State has herein discharged its burden of showing that no possible, injury could be shown to appellant by the temporary separation of the jury, if such it can be called.

Bill of exceptions No. 8 complains of the trial court overruling appellant’s motion for an instructed verdict because, as therein alleged, the ’State failed to prove that this burglary took place at nighttime. It is true that Johnson testified that > the front door of this house was closed at “dusk dark”, and that he did not see the same again until the next morning at about six o’clock and the sun was shining. It is also true however that this house was in the city of Longview, a populous city, and on one of its streets; that the front door was' mutilated in some way, giving evidence of force being applied thereto in such a manner that there were scars thereon, and a new front door had been procured and the old one replaced therewith. Under the circumstances we think the jury had a right to reason from the testimony that this breaking was rather laborious and took some time in its execution, and that the deed was not perpetrated in the broad light of day, but that the evil done was during the ten or twelve hours of darkness in the nighttime.

Bill of exceptions No. 9 complains because it is therein contended that one of the jurors trying this case, Grady Crawford, was not a citizen of Gregg County, but that he was a citizen of Harrison County. The trial court heard evidence thereon, which might be called conflicting, and we think that there was sufficient testimony to uphold his decision that Mr. Crawford resided in Gregg County and was a proper juror.

The remaining bills of exceptions Nos. 10 and 11 relate to the court’s charge, and do not show to have been filed nor called to the trial court’s attention until April 3, 1940. It is noted, however, that the court’s charge was filed on January 19, 1940. These objections and exceptions to the court’s charge were made too late to be considered by us. Art. 666, C.C.P., reads in part as follows: “ * * * All objections to the charge and to the refusal or modification of special charges shall be made at the time of the trial.”

That Mr. Sample’s house was burglariously entered on the night of July 24, 1939, seems to be fully shown. Appellant places himself in possession of much of the property taken therefrom at such time. He endeavors to exculpate himself by claiming the purchase of such property from a negro on the dates of from July 21st to July 25th, 1939. The State showed that the party from whom he claimed to have purchased such property had been killed on July 13, 1939, or eleven days prior to the burglary, and prior to the time appellant claimed to have purchased same from the deceased negro. The unexplained possession of this recently stolen property from a burglarized house has often been held to be sufficient to justify, a verdict of guilty upon the part of the jury: Mr. Branch in his Penal Code, p. 1283, Sec. 234-6, lays down the following doctrine, supported by numerous decisions: “If the State proves a burglary as alleged was committed by someone, and based on proof that defendant was found in possession of property recently stolen from the burglarized house the jury have found defendant guilty of the burglary, and that finding has been approved by^ the trial court whose duty it is to set aside- the conviction if not satisfied that defendant is guilty as charged, the judgment will be sustained on appeal unless clearly wrong if there are facts or circumstances in evidence which justify the jury in disbelieving defendant’s explanation of such possession, if any he made.”

We find no error shown herein, and this judgment is affirmed.

On Motion for Rehearing.

BEAUCHAMP, Judge.

Appellant’s motion for rehearing in this cause treats thoroughly the issues of the case. We find from re-examining the record that all of them were considered by the court on original submission, and we believe the proper conclusion was reached. .

The motion for rehearing is overruled.