author: KING, J.

text:
    GARVEY et al. v. CAIN, Co. Atty.
    (No. 262.)
    (Court of Civil Appeals of Texas. Beaumont.
    July 13, 1917.
    Rehearing Denied Oct. 10, 1917.)
    1. Intoxicating Liquobs <&wkey;37 — Local Option — Election Contest — Evidence.
    ' In a local option election contest, evidence held sufficient to support the court’s finding that certain persons who voted were not legal voters, in that they lived outside the voting precinct.
    2. Appeal and Ebbok <&wkey;1010(l) — Finding SUPPOBTED BY EVIDENCE — REVIEW.
    The Court of Civil Appeals will give to the findings of the court below the same weight that is accorded the verdict of a jury, and where such findings have the support of evidence they will not be disturbed on appeal.
    3. Intoxicating Liquobs @=»37 — Local Option Election — Contest—Jukisdiction.
    In a local option election contest, where the boundary line between the counties had never been recognized and established as required by Rev. St. 1911, art. 1400, the court properly heard evidence and determined the boundary, for the purpose of ascertaining whether certain parties who voted resided within the commissioner’s district in which the election was held.
    4. Intoxicating Liquobs. <&wkey;37 — Local Op- ■ tion — Boundary—Evidence.
    In a local option election contest, evidence held insufficient to show that a boundary involved had been recognized and established within Rev. St. 1911, art. 1400, adopting such boundaries as the true boundaries.
    6. Intoxicating Liquobs <&wkey;34(4) — Local Option Election — Qualieication op Vot-ebs.
    The right of the electors to vote upon the question of local option depends on whether they reside within the county where the election is held.
    6. Intoxicating Liquors <&wkey;>37 — Local Option Election Contest — Intimidation.
    In a local option election contest, evidence held to support the court’s finding that there was no intimidation of the voters calculated to change the result.
    7. Elections <&wkey;71— Qualification to Vote —‘ ‘Residence” — ‘ ‘Usually. ’ ’
    Under present election statute defining “residence” as actual physical living in a place, residence is a question of fact and not an abstract test of intention, and in case of a married man depends on where his wife resides, where she usually sleeps at night, while in case of a single man it depends upon where he usually sleeps at night; the proper interpretation of the word “usually” in this connection being that if the voter, a single man, when he is not actively engaged in his work, has a room or habitation to which he usually returns and where he usually sleeps at such times, then his right to vote in the precinct where such .room or habitation is located is fixed by Terrell Election Law (Acts 29th Leg. [1st Oailed Sess.] c. 11) § 4, even though he should be there only a small per cent, of the time; but if it should also appear that by reason of the nature of his occupation he was required to adopt a different place as one where he usually sleeps, then his right to votat the former place is lost, and his right to vote would be governed by section 22.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Residence ; Usually.]
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Contest suit by E. D. Garvey and others against C. H. Cain, County Attorney. Judgment for contestee and contestants appeal.
    Affirmed.
    Geo. G. Clough, of Galveston, E. B. Pickett, Jr„ of Liberty, and P. C. Matthews, of Cleveland, for appellants. C. H. Cain, of Liberty, J. L. Manry, of Livingston, and Townes & Vinson and McMeans, Garrison & Pollard, all of Houston, for appellee.
   KING, J.

This is a contest of a local option election held within commissioners’ precinct No. 3, Liberty county, on September 11, 1916, for the purpose of determining whether the sale of intoxicating liquor should be' prohibited by law within said precinct. The result, as found by the commissioners’ court, was a majority of two votes in favor of prohibition. The statement of the contest, was filed and served on the contestee within the statutory period, and on a trial in the district court, the court sustained the challenges of the contestant in part, and those of the contestee, on his counter-contest, in part.

The court rendered judgment in behalf of the contestee, holding that a majority of the qualified electors within said precinct had east their votes for prohibition. It was agreed upon the trial that the election was regularly called; that notice was posted, and that'due returns were made; and that the commissioners’ court met and canvassed the returns, and determined the result properly, and duly entered an order declaring said result, which was published by the county judge of Liberty county in a newspaper published in said county; that the contestants were all duly qualified voters of said district; that said district contained four voting boxes, namely, Cleveland, Tarkington, Dolen, and Hightower. There were 566 votes cast at the election, as found and declared by the commissioners’ court, 284 votes being cast for prohibition, and 282 against it. The contest of appellants involved a great many votes cast, and, besides, raised the question of intimidation of voters, as affecting the result of the election.

The contestee filed a counter-contest, involving several votes cast in the election, among which are 13 voters whom contestee alleged lived outside the territorial limits of said precinct, and within the limits of Montgomery county. These particular 13' voters resided at Fostoria, a sawmill town located at or near the line between Liberty and Montgomery counties, the mill proper, and most of the employés living, beyond question, within Montgomery county, and the controversy over the legality of said 13 voters grows out of confusion as to the true location of the boundary line between said counties.

Error is assigned by appellants’ first, second, third, fourth, and fifth assignment of errors to the action of the trial court in sustaining contestec’s challenge to the 13 voters alleged to have resided in Montgomery county.

The findings of the trial court are as follows:

“Owing to the general interest manifested in this litigation I deem it proper to reduce to writing some of my conclusions of fact and law which I think compel the judgment entered herein.
“The contestants first claim that the officers intrusted with the duty of holding this election failed to keep the polls open until 7 o’clock, sun time. The testimony conclusively shows that the polls were closed at not later than 7:05 or 7:07 according to railroad time. I am inclined to think that solar or sun time should be the time used in opening and closing election polls. I find that John Gossey, Pleas Prelems, and Ben Ridley were near the polls, and would have voted an anti-prohibition ticket had the polls remained open until the legal closing time. These votes were, therefore, illegally denied contestants.
“Another complaint made by contestants is in regard to the use of an affidavit • shown to have been used at at least some of the voting boxes in this election. The election law provides for the use of only one form of affidavit. I doubt that the voters should be required to sign any affidavit other than the one specifically authorized by law. Oontestees admit that this particular affidavit was not in accordance with the law in one particular at least. The affidavit complained of required the voter to swear that no person or corporation had furnished him the money with which to pay his poll tax. It is conceded that, even if the poll tax was unlawfully procured, that fact would not, of itself, make illegal the vote cast by the holder thereof. Election officers are given no authority to question voters except as to facts touching their right to vote. They have no inquisitorial powers as has a grand jury. If they had no right to demand the making of this affidavit by the voter,, clearly he had the right to refuse to make it, and if they required the making of the affidavit as a prerequisite to voting, and the voter did not agree to submit to an illegal demand on their part, he was clearly within his rights, and a refusal to allow him to vote unless he signed such an affidavit was illegally denying him the right to vote.
“I think Aaron Franklin, Austin Reeves, and George Gilmore were entitled to vote in this election. I gather from the evidence that they were refused the right to vote because they would not sign the affidavit in question. I therefore conclude that they were illegally denied their right to vote. Marion Ott, Charles Poole, and Frank Evans do not appear to have been legally qualified to vote.
“Memphis Murray testified, in effect, that he was told by an agent of the Foster Lumber Company that if he was not there at 7 o’clock that he would have to move the next morning. Taking into consideration all the circumstances, I think Murray was intimidated.
“The law requires that each voter vot.e in the precinct of his residence. This requirement is mandatory. It is shown by the uncon-troverted evidence that eight residents of various precincts voted for prohibition in voting precincts other than that of their residence. These votes being illegally cast should be deducted from the total of the votes cast for prohibition. I think that D. D. Page, alleged to be an illegal voter on this account, was a legal voter, and that his vote should be counted.
“The testimony tends to show that Steve Franks was told by some one that he could not vote unless he had with him a poll tax receipt. I am not inclined to hold that a mere misstatement of the law alone amounts to intimidation.
“Complaint is also made that certain parties who are shown to be on the pauper list of Liberty county were not allowed to vote, being otherwise qualified voters. I do not think that any one on the pauper roll of the county has the right under the law to vote, though they be only partially supported by the county.
“From what is said above it will be noted that eight votes actually cast in this election for prohibition were illegal, and that seven voters were illegally deprived of their right to vote. If the evidence stopped here, this would of course overturn the declared result as made by the commissioners’ court. The contestees, however, attack a number of votes shown to have been cast _ against prohibition. I sustain the challenges,' based on various grounds, to the votes cast by the following voters, to wit: Melton Davis, Dan Smith, Charles Sandford, Jim Denson, W. T. Whitten, Marion Whitmire, It. F. Tennyson, Douglass Boothe, W. W. Smith, Ed Taylor, Leon Scott, and H. B. Johnson. I overrule the challenges of contestees as to the following anti voters: Charley Smith, J. L. Isaaeks, G. B, McShan, Marion Mcllvain, Lum Hudson, Elmo Williams, J. M. Evans, and Will Atkinson. The qualifications of some of these last named are somewhat doubtful, but the burden of proof as to this was upon contestees, and election laws should be liberally construed and applied. No citizen should be denied the franchise unless it be clearly apparent that he is not a qualified voter.
“The votes challenged by contestees should be deducted from the total of the votes cast against prohibition. This would leave the result still in favor of prohibition by votes actually legally cast and counted, but the result of the election would be doubtful by reason of the fact of the voters mentioned above being illegally denied the right to vote.
“This brings us to the consideration of the boundary question, which if decided in favor of the contestants would require the setting aside of this election, but if decided in favor of the contestees, the election should be sustained. Upon this question I quote the following from contestants’ brief:
“ ‘The evidence before the court upon this question establishes only one fact with certainty. And that one certain fact is that for many years the true location of the boundary line between Montgomery and Liberty counties has been uncertain; and that such uncertainty yet continues; that for years back and now there is dispute and disagreement regarding which line upon the ground i¿3 really the true boundary line.’
“The above aptly expressed the only conclusion that can be arrived at from the evidence introduced in this ease. There is therefore between Montgomery and Liberty counties, near Fostoria, no line definitely marked and known and generally recognized. The boundary line between Montgomery and Liberty counties, so far as the proof shows, has never been legally established in any of the manners provided by law. This is not a suit between Montgomery and Liberty counties to determine the location of this boundary line and in this case we cannot legally establish the boundary line so as to be hereafter binding on every one. The question we have to determine in this case is whether or not certain voters living on the ‘disputed strip’ actually lived in Montgomery county or Liberty county. If there had ever been a line legally established in the manner provided for by law, that line would determine the county in which these voters lived. In the absence of a legally established or a generally recognized line settling the question as to where these voters lived, their place of residence must be otherwise determined. Legally speaking, there can be no ‘No Man’s Land’ of uncertain breadth or length lying between Montgomery and Liberty counties. These voters, as a matter of fact, live either in Liberty county or Montgomery county. If they live in Liberty county they are entitled to vote in this election; if they live in Montgomery counts' they have no voice in a prohibition election in Liberty county, and their votes if cast in an election in Liberty county would be illegal votes. They must vote in the county and precinct of their residence and have no right to vote elsewhere. If they live in Montgomery county legally speaking they have no concern as to the question of whether commissioners’ precinct No. 3 of Liberty county should be wet or dry. The status of the territory where they live, if they live in Montgomery county, is not affected by the result of an election in Liberty county. The fact that one who lives in Montgomery county has customarily voted in Liberty county illegally does not give him the right to continue to do so indefinitely. It would not be wrong to deny him the right of suffrage in Liberty county because he did not have the right in any event to vote there. The question to be decided is simply did these voters in the ‘disputed strip’ near Fostoria reside in Liberty or Montgomery county. As we have no generally recognized line, nor one established in any of the manners provided for by law, in determining this question we are necessarily relegated to other proof as to the actual boundaries of the two counties in question. Under such circumstances I think that the statutory description is the one that must govern. In the absence of a legally established line, or a generally recognized line, the statutory line must be the true line. The only evidence in this record that throws any light on the true location of the statutory line between the counties involved is that given by Mr. Compton. By his testimony the north end of the line, if set at a point from which a line run south to the head of Cedar bayou as same existed, as nearly as can be determined, would place this ‘disputed •strip’ in Montgomery county. The head of Cedar bayou, as it existed in 1837, is necessarily somewhat doubtful, but any line drawn from the certain statutory north end of this line to the fartherest western point that the head of Cedar bayou could possibly have been in 1837 would still leave this ‘disputed strip’ unquestionably in Montgomery county.
“It being clearly and unequivocally settled to a mathematical certainty by actual measurements made by Compton that this disputed strip is in Montgomery county, it necessarily follows that the votes cast by the 13 negroes living in the ‘disputed strip’ against prohibition were illegal votes, and should be deducted from the total vote cast against prohibition in the election under consideration. These votes being deducted from the total of those cast against prohibition leave the majority for prohibition too many to render the election uncertain, by reason of voters being intimidated or denied the right to vote. The evidence, instead of showing a possibility of other voters than those, named as being intimidated or denied the right to vote, rather establishes the fact that there were no other voters intimidated or denied the right to vote. A larger vote seems to have been cast at this election than any heretofore 'held in that territory. This tends to indicate that everybody that desired to vote in this election actually voted'. Before an election can be set aside on the ground of intimidation of voters, or because legal voters were not allowed the right to vote, it must reasonably appear from the evidence that a sufficient number were thereby denied the right to vote, which, had they voted, would probably have chan’ged the result. To make such a finding in this case would not be based upon any evidence, but would be rather against the evidence.
“The purpose of every election is to determine the will of a majority of the voters legally entitled to vote in the election. From what has been said above, it clearly appears that prohibition has been carried in this election by a clear majority of the legal votes actually cast. There seems to be but little probability that any voters, other than those mentioned, were deprived of the right to vote, or were prevented from voting. Certainly it cannot be determined from the evidence that there was enough of these to render the result in any wise doubtful.
“From what has been said it follows that the declared result must be sustained, and judgment will be accordingly entered.”

We overrule these assignments of error. The evidence shows, without dispute, that each of said 13 voters lived west of the Compton line, so that, if that be the true line, or if the true line be no further west than that, then all of these voters were disqualified. The result of the finding of the trial court is that, as a matter of fact, the 13 voters in question lived in Montgomery county, and not in Liberty county.

This court will give to the findings of the court below the same weight that is accorded the verdict of a jury, and where such findings have the support of evidence, they will not be disturbed upon appeal. The trial court was the exclusive judge of the credibility of the witnesses, and of the weight to be given their testimony, and this court would not be authorized to disturb the judgment of the trial court, unless we could say that such findings and judgment are so opposed to the overwhelming weight of testimony as to be manifestly wrong. Before we could say that the trial court erred in sustaining the challenges of the contestee as to the 13 voters alleged to reside in Montgomery county, we would have to find that there was no evidence that justified the finding of the trial court that such parties lived in Montgomery county, and were not legally qualified voters in Liberty county. We hold that the testimony of the civil engineer, Compton, as well as the testimony of the witnesses E. C. Smith and others, were sufficient to show the location of the true boundary line between Montgomery and Liberty counties, and the court’s finding that the line testified to by said witnesses was the true line, and that said 13 voters actually lived on the Montgomery side of such line, is sufficient to support his finding and judgment. From the finding of the trial court, which is amply supported by testimony, the boundary line between Montgomery and Liberty counties has never been actually surveyed and marked upon the ground, in accordance with law, and evidence tending to show where such line really is, was admissible; and the court having accepted as true the testimony of the civil engineer, Compton, showing the location of said line, and having found in accordance therewith, the finding will not be set aside.

There was evidence in the record that some 20 years ago Mr. Eubanks, a county surveyor of Liberty county, made a survey of the land, and marked it with four hacks; also that some 10 years ago a surveyor by the name of McMicken ran a line; but that neither of these two lines was consistent with the statutory description of Liberty county, in that the controlling call in the boundary line is the head of Cedar bayou, as it was in 1837, and neither of said lines, if followed, would touch the head of Cedar bayou.

It is contended in appellants’ first proposition, under the first assignment of error, that where a boundary line was in dispute, and was uncertain and could not now be definitely established, and it was shown that a certain line had been recognized and acted upon by residents of both counties as being the proper line, and taxes paid, roads worked, and children sent to school with ■ reference thereto, and that voters generally had voted in various elections with reference to such line being the true boundary, and where it was further shown that there was an old boundary line marked upon the land many years previous by a county surveyor, and that an extension of suda line would be consistent with the recognized line, it was error for a trial court to reject such facts and recognition, and to adopt as the true boundary line an arbitrary line run by a surveyor, based upon his own judgment as to where a natural object was in 1837, it being admitted by the surveyor that such natural object, at the- time he ran the line, was at least five miles distant from where he located it as he thought it was or ought to be in 1837.

By their fourth proposition under the first assignment of error, appellants contend that where the trial court found that a boundary line was in dispute, and not definitely marked on the ground, and not capable of being located with any degree of accuracy, the trial court was not authorized to arbitrarily establish a boundary line, and to hold voters living at and near the boundary line to be illegal voters in such election.

The main case relied upon by appellants to sustain these propositions is Ralls v. Parish, 151 S. W. 1092, in which is quoted with approval the case of Quinn v. Lattimore, 120 N. C. 426, 26 S. E. 638, 58 Am. St. Rep. 797.

Appellants’ position seems to be that this court cannot determine, in this suit and for the purpose of this action, where the county line is, or whether it is west of the Compton line or not. No authority is cited in support of this contention. The courts have held that the statutory method, as provided by the act of 1897 (Acts 25th Leg. c. 157), once pursued, exhausts the jurisdiction of the county court to locate a county line upon the ground, but that question is not' involved here, for the records of Liberty county and of the general land office show, without dispute, that this line was never so located.

Article 1400 of our present Revised Statutes reads as follows:

“The county boundaries of the counties in this state, as recognized and established, are adopted as the true boundaries of such counties, and the acts creating such counties and defining the boundaries are continued in force.”

If it had been established as a matter of fact in this case, by contestants, that the boundary line in question had been “recognized and established” prior to 1895, within the meaning of the terms of that statute, we could not now undertake to say that the boundary line was properly located elsewhere under its statutory field notes. The evidence in this case, both by appellants and appellee, establishes the fact that the boundary line in question was never “recognized and established” within the meaning of that statute. The meaning of the statute is determined in the case of Stephens County v. Palo Pinto County, 155 S. W. 1006, as follows:

“It was the purpose of the act quoted to quiet all controversies over county boundary lines whore, at the time the act took effect, such lines were established (that is, definitely marked and known) and recognized, irrespective of the accuracy of such surveys.”

In this case, a number of witnesses were put upon the stand by the contestants, in the effort to prove the recognition of some one line.

We do not think that the evidence is sufficient to show that any line has ever been recognized and established between Liberty and Montgomery counties. There were some slight individual recognitions of different lines, but, taken as a whole, the evidence amply supports the finding of the trial court that no such line was ever recognized and established. This being the' case, the trial court was compelled to hear evidence as to the true location of the line between the two counties, which he properly did, and determined from the evidence, as an issue of fact, that the 13 challenged voters resided outside of the county of Liberty.

In Short v. Gouger, 130 S. W. 267, which was an election contest case, the court held that that was certain which could be made certain, and that the court might ascertain the location of the line as a matter of fact, and that, under such circumstances, the matter might be inquired into in an election, for the purpose of ascertaining whether a voter had resided within the limits of the town.

In the case of Lampasas County v. Coryell County, 27 Tex. Civ. App. 195, 65 S. W. 67, the court held that the true boundary line between the two counties was an issue of fact to be determined by the evidence, without regard to the validity or invalidity of the several orders and proceedings under which the several surveys in evidence had been made.

The case of Ralls v. Parish, supra, does not support the propositions laid down by appellants. The question involved here was not involved in that ease. The court states that no contention was made that no voter who voted in the election resided outside of the boundaries. The sole question there was as to whether voters conceded to have resided within the boundaries were to be disfranchised and the votes of an entire polling box cast out, by reason of the fact that the polling box itself had been placed within a few feet of the disputed territory. This was the sole question involved, and the court properly held such placing of the polling box would not disfranchise the voters. Precisely the same question was decided in Ex parte White (Tex. Cr. App.) 28 S. W. 542, the only difference being that one applies to the county boundary line and the other applies to voting precinct line. Neither does the North Carolina case, to which reference is made, and from which quotation is made in the Ralls Case, support the contention of appellants. The North Carolina case was an action of quo warranto for the purpose of trying title to the office of clerk of the superior court, resulting from an election held in 1894. In passing upon the election contest, it appeared that there was a class of voters who lived on or near the dividing line between two townships, who voted in a different township from that in which they lived. These votes were allowed by the referee to whom the case was referred. A number of these votes which had been allowed by the referee were rejected by the court, and the court found and made a part of the judgment that the parties had voted in bad faith in the wrong township, and the plaintiff contended that this finding of bad faith was without any evidence to support it. It appears that one or two of these voters asserted that they knew at the time of the election that they did not live in the township in which they voted. The court simply held that if these parties lived only a few yards from the line, and had voted in the township before, and sent their children to school in that township, that the evidence was not sufficient to show bad faith, since they were entitled to vote somewhere, and said: “Their votes would have counted just as much as they did, if they had been cast in the township where the defendant contends that they should have been Cast.”

The testimony of the witnesses in this case, it is true, establishes the fact that these 13 voters paid their poll taxes in Liberty county, some of them had worked the road in Liberty county in recent years, and that they had theretofore voted on a road bond issue at Cleveland, in Liberty county; but the evidence does not show, even if that would control their right to vote, that voters residing in what is known as the “disputed territory” had uniformly paid their taxes, sent their children to school, and voted in Liberty county, but, on the contrary, the evidence shows that voters living where these voters lived had, at times, been assessed in Montgomery county, and at other times in Liberty county.

We hold that the right of these voters depends upon whether they lived in Montgomery county or Liberty county at the time of the election. If they lived in Liberty county, their votes were- legal, and if they lived in Montgomery county, their votes were illegal. The matter being voted upon did not concern, in a legal way, the citizens of Montgomery county. The question as to whether or not intoxicating liquors should be prohibited in commissioners’ precinct No. 3 in Liberty county, under the law, should have been determined by qualified voters of said precinct. Tire court below having found that the line run by Compton was the mathematically correct line between Montgomery and Liberty counties, Compton’s testimony, as well as the testimony of other witnesses contained in the record, amply sustains the finding, and we cannot say that it is without evidence to support it.

“The same presumptions are indulged in favor of the 'judgment of the court on questions of fact, which obtain in' support of the verdict of a jury.” Flanagan v. Oberthier, 50 Tex. 382.

The sixth assignment of error is to the effect that the court erred in holding the election legal, and in rendering judgment in favor of contestees, because the overwhelming preponderance of the evidence shows that there was a general conspiracy of intimidation to deprive persons suspected of voting the anti-prohibition ticket from voting, and that, as a result thereof, many persons were deprived of the right to vote in the election.

By the seventh assignment of error, appellants complain of the action of the trial court in holding that the use of the illegal affidavit at the polls on election day was not such an illegal act and an intimidation of voters as rendered the election void.

By the eighth assignment of error, appellants complain that the trial court erred in rendering judgment for the contestees, the proof showing that the election was fraudulently and illegally conducted, and that, by reason of such fraud and illegality, such number of legally qualified voters were deprived of their votes to have changed the result of the election.

By the ninth assignment of error, appellants complain that the court erred in finding and holding that there was no intimidation of voters in the holding of the election, and that the election was not void by reason of the alleged intimidation.

We overrule these four assignments of error. The evidence amply supports the judgment 'and findings of the district court that there was no general conspiracy of intimidation to deprive persons expecting to vote the anti-prohibition ticket from voting, or to obstruct the polls, or disregard the general election laws.

The evidence amply supports the finding and judgment of the court that the use of the affidavit in question did not result in any intimidation of voters such as would render the election void, or would affect the result, and if, in fact, any voters were intimidated or deprived of the right to vote by reason of the use of such affidavit, the court in its judgment and findings held such voters illegal, and, therefore, if the election officers or any of them adopted an erroneous affidavit in regard to the qualification of voters, the evidence does not disclose that it affected more than two or three votes, and to these the court sustained the contestants’ challenge, and excluded them from the final result.

It is shown by the evidence of both sides that there was a guard stationed over a hundred feet from the polls, a gatekeeper, and that he was put there by the officers of the election. The evidence further discloses that it was agreeable to both sides, and that it was agreed by both sides that a rope should be stretched 100 feet from the polls, in order to keep people from approaching nearer to the polls than 100' feet, as provided by statute. We think that the evidence is ample to sustain the finding of the court that there was no general conspiracy of intimidation to deprive parties suspected of voting the anti-prohibition ticket from voting. The evidence discloses the fact that both sides, pro and anti, were very enthusiastic, but we find that the evidence amply supports the finding of the court that nothing was done that would affect the final result of the election. It is shown by the evidence that the largest vote was polled that had ever been polled theretofore in a local option election in that territory, and we find nowhere in the record that any person who desired to vote the anti-prohibition ticket was unlawfully deprived of that privilege. The officers of the election were equally divided as to antis and pros, and both sides were asserting every legitimate influence to carry the election according to their respective wishes. The fact that, without the limit prescribed by law, women and children congregated and sang and prayed would not be sufficient to show that any voter was deprived of his constitutional prerogative of easting his vote uninfluenced. It is a matter of common history that questions of this character incite the greatest enthusiasm on each side, and we know of no rule of law that would prevent women and children, or any other citizens, as to that matter, when they maintain themselves at a legal distance from the polls, comporting themselves in a lawful manner, to electioneer and insist that the voter cast his vote in accordance with their wishes. We find no conduct upon the part of women and children that was calculated to illegally influence the election, but find that they were clearly within their rights upon that occasion. We, therefore, adopt the findings of the trial court, that there was no intimidation of voters in this election that was calculated to change the result.

With reference to the affidavit required of voters, we beg to say that this affidavit was more onerous than the law permitted, but we hold that the finding of the trial court is correct upon this issue. It appears that the trial court held in favor of contestants as to the voters who refused to make the affidavit, and that although the affidavit was one unauthorized by law, that there were, not sufficient voters who refused to vote upon that account to change the result, the trial court having held in favor of contestants as to the voters who refused to subscribe to the unlawful affidavit.

The eleventh assignment of error complains of the action of the court in finding and holding that Ed Taylor was not a legal voter in this election, and in sustaining the challenge of the contestees to such voter.

We hold that the record amply supports the finding of the court that Ed Taylor was not a legal voter in the election. Joe Vanier testified on this point as follows:

“I know Ed Taylor; I got acquainted with him after he moved up there. He moved across the Liberty county line over in Hardin county a little piece. He did not live very far across the Hardin county line, but it was across it. I never did measure the distance he was in Hardin county. Guessing at it, I would say that he lived about a quarter of a mile over in Hardin county. I couldn’t tell you who moved over there with him, but his wife was over there with him, and he had two children with him. They moved over there somewhere about the 10th of August, to the best of my remembrance. They stayed there until — that is, his wife stayed there until October; don’t know exactly what time of October, but it was in October. Some time in September he moved back across the river and stayed there about two weeks or 10 days and then came back to see his wife at the camp. His wife all that time was living in Hardin county. They were living in a house there, a little house a Slavonian had built there for a camp, a board shack. They had their children there with them. They had some chickens and some hogs, three or four head of hogs, and had a few head of cattle.”

Appellants’ twelfth assignment of error is to the effect that the court erred in finding and holding that H. B. Johnson was not a legal voter in this election, and in sustaining the challenge of contestee to such voter. This assignment is overruled, as the trial court fourid that he was an illegal voter, and the testimony supports such finding. B. H. Kelly testified as follows:

“I know H. B. Johnson. My understanding is .that he stays at the camp of Joe Yanier: he has been there something like — from the first of August of this year. He has been getting his mail there at Yotaw ever since about the first of August, or, at least, he has been asking for mail there since about that time. He was making staves out there at the camp. It is my understanding that he eame_ there from Cleveland, or near Cleveland. He is a single man. My understanding is that his old home is in Polk county.
“That is the same camp Ed Taylor stays at. Yes, sir; I know Ed Taylor, and he lived out there at the same camp where Johnson does. He also came there, about the first of August of this year. I don’t know just when he loft that camp, but I think he moved away from there about a month ago, or something like that. I don’t know where he moved to, but I think he moved across the river, over about Dolen somewhere. That was about a month ago, and then he .came back again, I understand, since then, and I think he is probably running the boarding house for the new well out there. All during the time Ed Taylor was out there he got his mail at Votaw. Ho has mail there in the office now. His wife had a couple of letters in the office when I left. * * * Ed Taylor went to that camp about the first of August, and since then he has moved to Dolen, and is now back at the camp again.”

Appellants’ thirteenth assignment of error in the action of the trial court in finding and holding that Marion Whitmire was not a le< gal voter in- this election, ¿nd in sustaining the challenge of contestee as to such voter.

We hold that the testimony is amply sufficient to sustain the finding of the trial court that said Whitmire was not a legal voter. Tom Godejohn testified as follows:

“I know Marion Whitmire, and know where he was living in the early spring of this year; he was living at Humble. I don’t know how long he lived at Humble, but he lived there a month, or so, or maybe longer than that. I saw him while he was down there. I was in Humble and saw him there. ' He is a married man, and he had his wife with him at Humble. I don’t know what county Humble is in. When he left Humble he went to New Caney, but I "don’t know just when he moved to New Caney, but it was some time this past year, in the summer. This summer; this last summer. I did not see him at New Caney, and I did not talk to either he or his wife while they were at New Caney, but I talked to them after they left there. I talked to him at his home — where he moved to after he left New Caney, out there about the tram at the hardwood camp. As near -as I can tell you, that camp is located where the tram crosses the East San Jacinto river. That tramroad runs east of New Caney, I suppose. He was living there at the camp. When he moved to Humble he moved from his old placo that he sold to Boyd. He moved to Humble immediately after he sold it. Prom there to Humble, and from Humble to Caney, and from Caney to this camp.”

Appellants’ fourteenth assignment of error complains of the action of the court in finding and holding that W. W. Smith was not a legal voter in this election, and in sustaining the challenge of contestee as to such voter. L. M. Tanner testified on this point as follows :

“I know a man named W. W. Smith, commonly known as Buck Smith, and have known him ever since I was in Cleveland, which is since 1901. Buck Smith lived the first part of this year, and a greater portion of last year, up in Northwest Texas somewhere, but I do not remember the name of the county he was in; he was with his daughter. I do not recollect just what time it was that he returned to Cleveland, but my recollection is that it was some time in March or April of this year; I am not' certain as to the exact date. When he came back I had a conversation with him with reference to where he was living. When he came back he came in my place and I talked a good deal with him, and he said he had been living with his daughter up in Northwest Texas, and that he came back from there on account of his eyes; that the glare up there was hard on his eyes, and he was about to go blind; and that the spring and summer was coming on and he couldn’t stay there another spring and summer.
“I don’t know just when it was that this fellow Smith went up to Northwest Texas to his daughter’s, but it was right after that narcotic law went into effect. The first thing I knew I heard he was gone to Ms daughter’s. That was shortly after the narcotic law went into effect.”

O. W. Carlisle testified:

“W. W. Smith and Buck Smith are one and the same man. They call him ‘Old Uncle Buck.’ ”

W. W. Smith testified:

“My initials are W. W. Smith, but nearly everybody calls mo Buck .Smith. I have been called Buck Smith ever since X can recollect. _ I voted at Cleveland during this last prohibition election.”

Our present statute seems to clearly enough define what is meant by “residence,” that is, actual physical living in a place, thus furnishing a test which can be practically applied by election ofíicers and coui'ts, a test of fact, instead of an abstract test of “intention,” which necessarily could not be applied by any one except the voter himself, and by him in as many different ways and in reference to as many different places as might suit his convenience at different times. In other words, if it is to be left as a matter of intention at all, the statutory definition of “residence” is wholly illogical arid unnecessary, for the voter can claim a residence, anywhere, and the facts would have no bearing upon the matter. If the facts of physical presence are to be given any significance whatever, then there can be no warrant for giving them any degree of significance short of that plainly called for by the statute, that is, a significance exclusive and controlling.

That the statute meant what it said, and did not mean that the question of “intention” should enter into the matter of residence, is clearly shown by the exception to the general rule, which did not exist in the old law, but which has been a'dded to it by the present law, namely, the exception to the departmental clerks, college students, etc. If the rule contended for by contestants had been intended by the Legislature, there would have been no need for this proviso. Every college student and every departmental clerk in Texas could have qualified as a voter at his former home, without any trouble whatever by all of contestants’ tests, without the necessity of this proviso. The Legislature, however, intended to lay 'down a test of actual fact as applied to actual physical residence, conceived that it had done so, and that it was necessary to make this exception in favor of those particular classes of voters, by a proviso to the general rule. Linger v. Balfour, 149 S. W. 797, and Savage v. Umphries, 118 S. W. 893, both adopt this view and enforce this rule.

The former case contains a recognition also of the exception above mentioned, as called for by an assignment of error in that case, based upon the challenged vote of a university student. In this instance, the voter was a single man; he went to. Oldham county in the summer arid stayed there for a time. That being the place where he “usually slept at night,” he became thereby a “resident” of that place and county. Erom there he went to Austin as a student in the University; therefore, his residence during all his stay at Austin was, under the statute, to be construed to be where his home was before he became such student, that is, in Oldham county, where he last “usually slept at night,” unless, in the language of the statute, he became a bona fide resident of the county where he was such student. On this last question, that is, as to whether or not he had become a bona fide resident of Austin, by reason of his physical presence in that place, his intent in going to Oldham county became material as illustrating his intent in being in Austin. This 'decision, therefore, gives to the matter of “intent” its full force in the only connection in which it has any force in considering the question of the man’s place of residence within the state of Texas, namely, the bona fide vel non of the residence of one of the members of an excepted class in his exceptional place of residence.

The test of a single man’s residence within the state, at any given time or during any given period of time, is one purely of fact, and is found in the answer to the question: “Where does he usually sleep at night?’.’

The proper interpretation of the word “usually” in this connection is that if the voter, a single man, when he is not actively engaged in his work, has a room or habitation to which he usually returns, and where he usually sleeps at such times, then his right to vote in the precinct where such room or habitation is locate'd is fixed by section 4 of the Terrell Election Law, Act of 1905 (Acts 29th Leg. [1st Called Sess.] c. 11), even though he should be there only a small per cent, of his time; but, if it should also appear that by reason of the nature of his occupation he was required to adopt a different place as one where he usually sleeps, then his right to vote at the former place is lost, and section 22 would govern his right to vote.

The test as to where a married man resides within the state of Texas, at a given time or during any given period of time, is also purely one of fact, and consists of an answer to the question: “Where does his wife reside?” “Where does she usually sleep at night?”

Of course, a wife may, like a single man, be away temporarily or sleep for some period at another place than that where she usually sleeps; but if she has a fixed, definite abode to which she comes back, and where she then sleeps after any such enforced temporary absence, the latter remains her residence, and under the terms of the Terrell Election Law, the residence of her husband, not by reason of her “intention” or claim, or the leaving of some personal effects there, but solely by reason of the maintenance, throughout the period, of an abode there to which she may at any time return and where she may at any time resume her actual living. This furnishes the distinction between the two caaes dealt with respectively in paragraphs 37 and 38, in Linger v. Balfour, supra.

This is clearly the principle announced in the case of Aldridge v. Hamlin, 184 S. W. 602, though the court appears to have rendered an opinion, some few paragraphs of which are inconsistent with the remainder of the opinion. The holding of the court as to the voters Dodson and Stafford in paragraphs 15 and 16 are inconsistent with the announced principles upon which the other challenges are decided in the same case by the same court; the court in these two latter instances seeming to take refuge in the finding of the trial court in regard to these two voters, an'd citing authorities to sustain the contention that the appellate court could not disturb such finding.

It is obvious that there is no way to reconcile all the holdings of the courts in all of the cases on this question of residence. The cases exist and the inconsistencies exist, and there is no principle upon which they can be completely and universally reconciled. It remains, therefore, to take that rule of decision which seems best supported by the language of the statute itself, and best supported by the context of the statute, as viewed under the usual rules of construction in regard to provisos and exceptions, and as apparently best supported by the authorities of the courts. It is certainly more consistent with the language of the statute, and is in accord with the legislative construction of that statute, as shown by the insertion of the proviso as to college students, departmental clerks, etc.

Tlie returns of the election declared by the commissioners’ court was 284 for prohibition and 282 against prohibition. The court found that eight votes which ha'd been cast for prohibition were illegal, and to this finding there is no assignment of error. The court also found that seven antiprohibitionists had been denied the right to vote, and to this finding there is no assignment of error. This would leave the result of the election at 13 votes majority against prohibition. The court sustained 12 of the challenges of contestee of parties who had voted against prohibition, to only four of which, as shown by appellants’ assignments of errors Nos. 11, 12, 13, and 14, any exceptions were taken. This would leave a majority of one against prohibition. The trial court found that 13 parties who voted against prohibition, ’designated as the Liberty county boundary controversy voters, were illegal, and this finding of the court leaves the result of the election of a majority of 12 in favor of prohibition, four of whom are challenged by the above-named assignments of errors, so this court, sustaining the finding of the trial court as to the 13 voters involved in the boundary controversy, would still leave the election at a clear majority in favor of prohibition. We, therefore, affirm the judgment of the- lower court, and hold that a majority of the legal votes of commissioners’ precinct No. 3, Liberty county,' was cast in favor of prohibition.

Affirmed.
      For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: HUFF, C. J.

license: Public Domain

text:
    CHICAGO, R. I. & G. RY. CO. v. SHROYER.
    (No. 1210.)
    (Court of Civil Appeals of Texas. Amarillo.
    June 27, 1917.
    On Motion for Rehearing, Oct. 17, 1917.)
    1. Carriers <&wkey;218(l) — Interstate Shipments — Time eor Bringing Action — 'Validity.
    Under the Interstate Commerce Act (Act Cong. Feb. 4, 18S7, e. 104, 24 Stat. 379), a provision of a contract for the shipment of live stock that no action against the carrier on any claim shall be maintained unless commenced within six months after the cause of action accrued is valid.
    2. Evidence <&wkey;69 — Presumption—Lawful Conduct of Business.
    An interstate carrier having a right to provide by contract that any action for any loss, etc., shall be commenced within six months after the cause of action accrued, and being required by the Interstate Commerce Act to treat all shippers equally, it will be presumed, without evidence to the contrary, that the carrier was conducting its business lawfully, and that such a contract was lawful.
    3. Evidence <&wkey;G5 — Presumption—Knowledge of Law.
    Without evidence to the contrary, it will be presumed that both the carrier and the shipper know the law as to the validity of a contract, stipulating that any action for loss, etc., shall be brought within six months after the cause of action accrued.
    4. Carriers <&wkey;46 — Contracts for Interstate Shipment — Construction.
    Contracts for interstate shipment are governed by the acts of Congress, the agreement of parties, and the common-law principles accepted and enforced in federal courts.
    5. Carriers <&wkey;35 — Interstate Shipment of Live Stock — Limitation of Time for Bringing Action — Validity.
    A provision in a contract for an interstate shipment of live stock that, in consideration of the lower rate allowed to the shipper on a valuation of property, instead of the rate at the carrier’s risk, as provided by the tariff rates, no action against the carrier for any loss, etc., should be maintained unless commenced within six months after the cause of action accrued, and that if any action was commenced after that time the expiration of such time should be conclusive evidence against the validity of the claim, could not be waived by the carrier, as to enforce it against one shipper and waive it as to another would permit discrimination between parties, and allow, by indirection, what the carrier could not do directly.
    On Motion for Behearing.
    6. Carriers <&wkey;35 — Interstate Carriage of Live Stock — Limitation as to Tíme fori Bringing Action — Schedule Piled with Interstate Commerce Commission.
    Under Interstate Commerce Act, § 6 (Comp. St. 1916, § 8569), requiring a carrier to file with the Interstate Commerce Commission schedules of all rates, stating all privileges granted and any rule which may affect any rate and section 20, as amended by the Carmack Amendment (Act Cong. June 29, 1908, c. 3591, § 7, pars. 11, 12, 34 Stat. 595 [U. S. Comp. St. 1916, §§ 8604a, 8604aa]) requiring carriers receiving freight to issue a bill of lading, and that no contract, etc., shall exempt carriers from liability under the act, a stipulation in a contract, for the interstate shipment of live stock that, in consideration of a lower rate upon a declared valuation, no action for loss, etc., should be maintained unless brought within six months after the cause of action accrued was not invalid because not filed as a part of the schedules filed with the Interstate Commerce Commission, where the carrier had filed the rate upon declared valuations as to contracts executed on blanks furnished by it and the rules affecting the rate, as such condition was not a service rendered to the shipper in transportation, but an obligation to be performed by the shipper in consideration of the lower rate.
    Appeal from District Court, Potter County ; Hugh L. Umphres, Judge.
    Suit by W. H. Shroyer against the Chicago, Rock Island & Gulf Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    N. H. Lassiter, of Ft. Worth, and C. E. Gustavus, of Amarillo, for appellant. W. A. Davidson, of Amarillo, for appellee.
   HUFF, C. J.

The appellee, Shroyer, brought suit against the Chicago, Rock Island & Gulf Railway Company to recover damages in the sum of $1,900, on account of alleged injury to a shipment of cattle from Glen Rio, Tex., to Langford, Miltonville, and Salina, Kan., on April 22, 1914. It was alleged that 3 of the animals were lost, and 10 were so injured as to die, and that the remainder of the shipment was depreciated in market value by reason of delay and improper handling en route. The railway company answered, after general denial that the contract controlling the rights of the parties entered into at the time of delivering the cattle stipulated, as a condition precedent to bringing any suit for damages on account of loss or injury to the property covered by the contract, that the shipper give notice in writing of the claim for such damage toi some general officer, claim agent, or station agent of the defendant company not later than 90 days after the date of the loss or injury claimed, which stipulation the defendant pleaded the plaintiff had failed to comply with; and further pleaded a stipulation as a condition precedent to claiming or recovering damage for any loss or injury to the stock that the shipper should give notice in writing of the loss or injury to some general officer, claim agent, or station agent, or to some officer of the delivering line before the stock was moved from the place of destination, and that such notice in any event to be given within one day after the delivery of the stock at destination, in order that such claim might be fully and fairly investigated, which stipulation the defendant averred was not given; and it further pleaded that the stipulation in the contract, providing that no suit or action against the defendant j for the recovery of any claim should be susainable in any court unless such suit or ac-I tion should be commenced within six months next after the cause of action accrued, which stipulation the defendant pleaded was not complied with; that the suit was filed long after the expiration of said time. It further pleaded that this was an interstate shipment, controlled by the federal laws, and that the defendant had made, filed, and published tariffs and schedules regulating shipments of this character, which tariff and schedules gave the shipper the option of shipping at carrier’s risk, without limitation or liability or at a lower freight rate at the owner’s risk, which latter shipment would be controlled by the live stock contract. The plaintiff answered by supplemental petition that the agents of the carrier at destination knew the condition of the cattle when they arrived, and that the plaintiff filed written claim for damage with the general agent of the defendant at Amarillo, Tex., about a month after the shipment, and that thereafter, on several occasions, there were negotiations between the plaintiff and the general agents with reference to the claim and between plaintiff and J. S. Jones, the defendants’ traveling claim adjuster, which negotiations amounted to a waiver of the stipulation providing for the filing of suit within six months, and that except for such conversations and negotiations suit would have been filed within six months.

We have decided to consider only one question presented under the eighth, ninth, and tenth assignments, and other assignments, assailing the verdict of the jury. The general proposition presented by appellant under these various assignments is:

“The provisions of paragraph 15 of the contract cannot 'be legally waived, and the court in permitting such waiver deprived defendant of its lights and defenses under the federal law.”

. The fifteenth provision of the bill of lading is:

“That no suit or action against the first party for the recovery of any claim by virtue of this contract shall be sustainable in any court of law or equity unless such suit or action be commenced within six months next after the cause of action shall accrue, and should any suit or action be commenced against the first party after the expiration of six months the lapse of time shall be constituted conclusive evidence against the validity of such claim, any statute of limitation to the contrary notwithstanding.”

The first party named in the contract is the appellant company. The suit was not instituted until more than a year after the cause of action accrued. Without giving the evidence admitted over the objection of the appellant, we shall treat it as admissible, and when considered as a whole, that it was sufficient to show waiver by estoppel of the provision of the contract above set out.

Under the Interstate Commerce Act relative to carriers, the provision of the contract is valid under the holdings of the Supreme Court of the United States, and by the courts of this state. Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 550; Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Betka v. Railway Co., 189 S. W. 532; Railway Co. v. Smyth, 189 S. W. 70.

The railroad having a lawful right to enter into such a contract, and being required by the act to treat all shippers upon equal terms, and by no device whatsoever to give one shipper a more liberal contract than another, in the absence of evidence to the contrary, the presumption will prevail that the contract of shipment in this case was a lawful one, and that both appellant and appellee knew the law. An interstate carrier is entitled to the presumption that it is conducting its business lawfully. Railway Co. v. Beaham, 242 U. S. 148, 37 Sup. Ct. 43, 61 L. Ed. 210.

Contracts for interstate shipment are governed by the acts of Congress, the agreement of parties, and the common-law principles accepted and enforced in federal courts. Beaham Case, supra. When enforcement of the principles of the common law would, as formerly applied by the courts, conflict with the act of Congress on the subject, or render the spirit or intent of the act with reference to discrimination or rebates nugatory, we apprehend the federal courts would not hesitate to give effect to the act over the principles of the common law.

The contract of shipment in this case, in so far as lawful, fixed the mutual obligations of the parties for the services to be performed in the transportation of the cattle and the liability and responsibilities of the parties thereunder. A provision of this contract, lawful within itself, we do not think can be enforced as to one shipper and waived as to another. The courts will not open the door for such discrimination between parties or rebating as to one. Railway Co. v. Banda, 187 S. W. 358. In this case the road never admitted any liability, or that it was negligent. All that may be said with reference to the matter is that by its conduct it induced the appellee to believe that it was not insisting upon the six months’ limitation fixed by the contract of shipment. If the road could not by express agreement give the shipper in this ease a longer time to institute suit, which was not given to all others, then it could not do indirectly what it could not do directly. -The contracts of shipment in this case stipulate, in consideration of the reduced rate charged and other considerations, that it was mutually agreed between the parties that:

“Each and every carrier receiving said cars for transportation shall be deemed to adopt the terms and conditions hereof and assume the like liabilities, and shall be entitled to all the provisions, exemptions, and all limitations of liability and other stipulations, the measure and adjustment of damages herein contained.”

This contract on its face shows to have been issued in consideration of the lower rate allowed to shippers, and that it was not therefore at the carrier’s risk, as provided by the tariff rates which the Interstate Commerce Commission. Clause 15, heretofore set out, follows the above provision. In the case of Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. 469, 60 L. Ed. 836, it is said:

“No carrier may extend ‘any privileges or facilities’ save those which have been duly specified; and, as the terminal services incident to an interstate shipment are within the federal act and the condition of liability while the goods are retained after notice of arrival are stipulated in the bill of lading under the filed regulations, the conditions thus fixed are controlling, and parties cannot substitute therefor a special agreement.”

See, also, Railway Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 177, 60 L. Ed. 453.

The bill of lading stipulated for the adjustment of damages by giving notice within the specified time and for instituting suit for damages received while in course of transportation, within six months. Clause 15 expressly provides, if suit is commenced after six months, “the lapse of time shall be constituted conclusive evidence against the validity of such claim.” If the appellant could waive this provision one party shipping could prove his claim, but if it should not waive as to another a failure to file suit in time is conclusive evidence as to such against the validity of the claim. This would be nothing less than discrimination between the two shippers. In the case of Phillips v. Grand Trunk Railway Co., 236 U. S. 662, 35 Sup. Ct. p. 444, 59 L. Ed. 774, the Phillips Bumber Company filed suit for overcharge on freight. Upon a petition of a different company the Interstate Commerce Commission found that the road’s advance of two cents on the freight charges unjust. After this decree the Phillips Bumber Company brought suit for overcharges which under the decree of the Commission it was entitled to recover. The lower court sustained a general demurrer to the complaint of the Phillips Company, and from a judgment rendered thereon the case was taken to the Supreme Court. It was urged that under the statutes of Michigan a defendant was not permitted to take advantage of the statute of limitation by a general demurrer, which statute we presume is somewhat like our own in requiring that the bar of limitation be specially pleaded. Mr. Justice Ba-mar, for the Supreme Court, said in that case in part:

“This will more distinctly appear by considering the requirements of uniformity which, in this, as in so many other instances, must be borne in mind in construing the commerce act. The obligation of the carrier to adhere to the legal rate, to refund only what is permitted by law, and to treat all shippers alike would have made it illegal for the carriers, either by silence or by express waiver, to preserve to the Phillips Company a right of action which the statute required should be asserted within a fixed period. To have one period of limitation where the complaint is filed before the Commission, and the varying periods of limitation of the different states, where a suit was brought in a court of competent jurisdiction, or to permit a railroad company to plead the statute of limitations as against some, and to waive it as against others, would be to prefer some and discriminate against others, in violation of the terms of the commerce act, which forbids all devices by which such results may be accomplished. The prohibitions of the statute against unjust discrimination relate, not only to inequality of charges and inequality of facilities, but also to the giving of preferences by moans of consent judgments, or the waiver of defenses open to the carrier. The railroad company therefore was bound to claim the benefit of the statute here, and could do so here by general demurrer.”

Eater, in the case of Railway Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. p. 542, 60 L. Ed. 948, the Supreme Court recognized the principle above announced. In the latter case flour was consigned to a grocery company by the milling company. Upon its arrival it was found to be damaged, and was left with the railroad company, which company afterwards sold it. Thereafter the milling company, as the consignor in whom the title then rested, sued the railway company for damages. The railroad company pleaded the failure of the milling company to make claim for damages in writing within four months, and, unless so made, that the company should not be liable; that this provision was a part of the bill of lading. It was sought to show by the milling company that the clause did not apply for the reason that the railway company had converted the flour and thus abandoned the contract. Mr. Justice Hughes said:

‘‘But the parties could not waive the terms of the contract under which the shipment was made pursuant to the federal act; nor could the carrier by its conduct give the shipper the right to ignore these terms which were applicable to that conduct, and hold the carrier to a different responsibility from that fixed by the agreement made under the published tariffs and regulations. A different view would antagonize the plain policy of the act and open the door to the very abuses at which the act was aimed. Chicago & A. R. R. Co. v. Kirby, 225 U. S. 155, 56 L. Ed. 1033, 1038, 32 Sup. Ct. 648, Ann. Cas. 1914A, 501; Kansas City Southern R. Co. v. Carl [227 U. S. 639, 648, 33 Sup. Ct. 391, 57 L. Ed. 683, 6861; Atchison, T. & S. F. Ry. Co. v. Robinson, 233 U. ,S. 173, 181, 58 L. Ed. 901, 905, 34 Sup. Ct. 556; Southern R. Co. v. Prescott, supra. We are not concerned in the present case with any question save as to the applicability of the provision and its validity; and, as we find it to be both applicable and valid, effect must be given to it.”

In, the above case the Supreme Court found the notice sufficient, but it nevertheless holds that to permit the railway to waive or abandon would be in violation of the act of Congress. These plain intimations of the view by the Supreme Court should not be disregarded by us. The courts of Missouri have recognized these decisions of the Supreme Court as settling the question here involved in favor of appellant’s contention, in a number of cases. Thompson v. Railway Co. (Mo.App.) 185 S. W. 1145; Kemper Mill Co. v. Ry., 193 Mo.App. 466, 186 S. W. 8; Donoho v. Railway Co., 193 Mo. App. 610, 187 S. W. 141; Johnson v. Railway Co. (Mo. App.) 187 S. W. 282; Harelson v. Railway Co. (Mo. App.) 191 S. W. 1068.

The appellant in this case presents quite a number of assignments, which if our view on the above question is correct will render it unnecessary to pass upon or to further consider.

The judgment will be reversed and remanded.

BOYCE, J., not sitting.

On Motion for Rehearing.

It is stated in the written argument by appellee, on motion for rehearing, that it is not disputed by appellee that the court’s holding is correct that the stipulation set out in the original opinion cannot be waived, “provided such stipulation was lawful in the first place.”

It is contended that the stipulation is not valid because not part of the schedule filed with the Interstate Commerce Commission and for that reason is void. It is not contended that there were not two rates, one at the carrier’s risk and one at the shipper’s risk, as stated in the contract of shipment. It is recited therein that the rate charged “being less than the rate charged for shipments at carrier’s risk for which reduced rates and other consideration, it is mutually agreed between the parties hereto as follows.” Several paragraphs follow this stipulation, among which is the fifteenth paragraph quoted in the original opinion, with reference to bringing suits for injuries received within six months. The live stock tariff filed with the Interstate Commerce Commission and introduced in evidence, among other things, provides:

“The rates named in this tariff apply only on shipments of live stock when contracts are executed by the shippers and the carriers on the blank furnished by the carriers and are based on declared valuation by the shipper at the time the contract is signed, not to exceed the following: Each horse, $100.00'; each ox, bull or steer, $50.00. * * * Where the declared valuation exceeds the above an addition of ten per cent, will be made to the rate for each one hundred per cent, (dollars?) or fraction thereof of additional valuation per head.”

The contract or bill of lading in this case shows the valuation on the stock shipped was, for each horse $100, each ox, bull, or steer $50, etc.; that is, that the lower rate was agreed to and accepted by the shipper, in consideration of which he agreed to the six months’ limitation clause. Upon the trial of this case in the court below it was admitted by appellant “that the stipulation of the live stock contract with regard to giving notice of loss or injury and of bringing suit is not included in the tariff that this company had on file at that time.” Section 1 (Comp. St. 1916, § 8563) of the Interstate Commerce Act defines “transportation.” Section 6 (section 8569) requires the carrier to file with the Interstate Commerce Commission—

“schedules showing all the rates, fares and charges for transportation between different points. * * * The schedules * * * shall * * * state separately all terminal charges, * * * and all other charges which the .Commission may require, all privileges or facilities granted or allowed and any rules or regulations which in any wise change, affect, or determine any part of the aggregate of such aforesaid rate, fares, and charges, or the value of the service rendered to the passenger, shipper, or consignee. * * * The provisions of this section shall apply to all traffic, transportation, and facilities defined in this act.”

The amendment of section 20 (section 8604a) known as the Carmack Amendment, provides that:

The common carrier receiving freight- for transportation “shall issue a receipt or bill of lading therefor, * * * and no contract, receipt, rule, or regulation * * * shall exempt such common carrier, * * * from the liability hereby imposed.”

The Supreme Court of the United States has held frequently under the above act of Congress a stipulation limiting the time for bringing suit and for notice is valid and binding, and should be enforced. However, it is urged here that unless such limitation is filed with the Interstate Commerce Commission with its schedule of rates that such provision is void; that as it was agreed on at the trial that the stipulation was not included in the tariff filed by appellant with the Commission, no presumption will be indulged in favor of the carrier. It will be noted that it is not- agreed that the contract of shipment was not on file, with the Commission, but only that it was not filed with the schedule rates. It will be observed in the act that Congress treated the subject of tariff rates, fares, and charges separate from the contract or agreement between the carrier and shipper. It is true the contract to be valid must be based upon a valid rate, filed with the Commission, together with all privileges or facilities, and any rule or regulation which changes, affects, or determines any part of the rate or value of the services rendered the shipper. The rules, regulations, or service by the carrier, rendered to the shipper, which affect the rate are to be filed. It is not the stipulation in the contract which the shipper is to perform that is to be filed. The carrier in this case, however, filed the rate upon declared valuation when the contracts are executed, ’ upon blanks furnished by the carriers. The shipper declared the valuation as per the rate filed, and signed the contract upon the blank furnished. The rules and regulations were filed affecting the rate, thereby complying with the statute. The shipper, on his part, agreed after the transportation was complete, if damaged, he would sue for his damages within six months. This we do not interpret as service, privilege, or facilities rendered the shipper in the transportation, but was an obligation on the shipper to be performed in consideration of the lower rate given him for the transportation. In the case of Railway Co. v. Dettlebach, 239 U. S. 588, 36 Sup. Ct. 178, 60 L. Ed. 453, the goods were received for transportation under the terms of the bill of lading prepared in a form approved and recommended by the Interstate Commerce Commission. The court said in that case:

“The recommendation of the Interstate Commerce Commission for the adoption of the uniform bill of lading was, of course, made in view of this legislation; and, while not intended to be and not in law binding upon the carriers, it is entitled to some weight.”

The provision in that case fixed the charges in advance for storage as warehouseman. Schedules of tariff rates properly filed to that effect were not shown, and the contract was considered by the court as evidencing a proper charge, including such service. The case we think also suggests that it was not required of the carrier to file with the Commission the form of the contract or its various stipulations. This view is further strengthened by the case of Railway Co. v. Prescott, 240 U. S. 632, 36 Sup. Ct. p. 460, 60 L. Ed. 836. The tariff rules there introduced provided that the reduced rates would “apply on property shipped subject to the condition of carrier’s bill of lading.” The particular clause of the bill of lading in issue in that case does not appear from the opinion to have been filed with the schedule, but the court held, while the goods are retained after notice of arrival, as stipulated in the bill of lading, under filed regulations, the conditions were fixed, and the parties could not substitute therefor a special agreement. The rules filed in this case were that the tariff fixed applied' on the shipment of live stock “where contracts are executed by the shipper and carrier on the blanks furnished by the carriers.” The conditions fixed by the contract to be complied with after termination of the shipment are stipulated in the contract under the filed regulations and the parties cannot substitute a special agreement to waive the stipulation in the contract. It is insisted that in the case of Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690, it is intimated that the live stock contract should be part of the rates filed. 'We do not so regard the case. In discussing the question arriving at the damages to the shipment on stock valued by agreement, the court said that the rate sheet did not include the contract sued on, but this was of no vital significance. However, the court stated in that case that there was no objection made in the court below. It is there further said:

“In any event, the rate sheets do provide for a choice between two rates; one with and one-without declared valuation.”

The Supreme Court recognizes it as settled that the rights and liabilities in connection with shipment depend upon the acts of Congress, the bill of lading, and common-law principles accepted and in force by the federal courts. In order to determine the validity and effect of restrictions upon liability by the bill of lading, it is important to consider the schedules on file. Express Co. v. Byers, 240 U. S. 612, 36 Sup. Ct. 410, 60 L. Ed. 825, L. R. A. 1917A, 197. It appears the Interstate Commerce Commission has approved and recommended a form for a bill of lading. Western Transit Co. v. Leslie, 242 U. S. 448, 37 Sup. Ct. 133, 61 L. Ed. 423. As we understand, however, the Commission disclaimed the power to prescribe the forms of the bill and enforce it, but simply recommended a form. Section 1 of this act makes it the duty of the carrier to establish and enforce just rules, etc. “The issuance, form and substance of tickets, receipts and bills of lading,” but the form and substance of the bill of lading is not required to be filed with the Commission, as we read the act. It is only the schedule of the rates and rules and regulations with reference to the transportation. The holding of the Interstate Commerce Commission, in so far as we have been able to ascertain, has left with the carriers the form of the bill of lading where the act placed it. In so far as we have been able to find, the Supreme Court has not held a bill of lading containing limitations void as to such because not filed with the Interstate Commerce Commission. The universal holding appears to be when the bill of lading or contract is based upon a tariff duly filed and approved and when in consideration of the lower rate so filed the contract is entered into, the stipulation is valid. Railway Co. v. Blish Milling Co., 241 U. S. 190, 36 Sup. Ct. 542, 60 L. Ed. 948, and authorities cited; Railway Co. v. Rankin, 241 U. S. 319, 36 Sup. Ct. 555, 60 L. Ed. 1022, L. R. A. 1917A, 265.

It is urged by appellee that the case of Erie Railway Co. v. Stone, 244 U. S. 332, 37 Sup. Ct. 633, 61 L. Ed. 1173, holds that the bill of lading limiting liability must be duly published and filed with the Interstate Commerce Commission. Possibly some of the expressions of the opinion may be given that interpretation. It occurs to, us, however, that this case only holds that the right to contract for limited liability is based upon tariff classification duly published, and does not also undertake to hold that the form of the bill of lading shall also be published as part of the tariff and rules governing transportation. We think the amendment of section 20 of this act (sections 8604a, 8604aa, U. S. Compiled Statutes 1916, vol. 8) with reference to bills of lading evidence the fact that Congress did not consider that the bill of lading had to be filed with the Commission and published as part of the rate. The amendment now declares such stipulation for notice and limitation void if less than a certain time specified in the act. This amendment was not in effect at the-time of the shipment in this case.

The presentation of the question upon motion by appellee has been forceful, and it appears to us may be a reasonable interpretation of the statute, but after examining quite a number -of cases by the Supreme Court we find no case passing upon provisions of like kind that will justify us in reaching the conclusion that that court has ever placed its holding as to the validity of such limitations in bills of lading upon the ground that such provision must first be filed with the Interstate Commerce Commission as part of the carrier’s rate sheet

The motion will be overruled.

BOYCE, J., not sitting.
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