author: MOUKSUND, J.

text:
    ALTGELT v. GUTZEIT et al.
    (No. 5720.)

    (Court of Civil Appeals of Texas. San Antonio.
    April 26, 1916.
    Rehearing Denied May 31, 1916.)
    1. Evidence &wkey;>30 — Judicial Notice — Special Law.
    The court cannot take judicial notice of a special law not made a public act by its own provisions.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 38; Dec. Dig. <§^30.]
    2. Appeal and Error <&wkey;518(l) — Record-Legislative Act.
    Where both parties pleaded a special, law by giving its title and the date of its approval, as authorized by Rev. St. 19ll, art. 1823, and the entire act was before the court as if it had been copied in full in the pleadings of each party, it must be considered a part of the record on appeal, although not copied into the statement of facts.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2342, .2313, 2351, 2353, 2354; Dec. Dig. &wkey;518(l).]
    3. Statutes <&wkey;97(l) — General or Special Act — Constitutional Provisions — Repeal.
    Const, art. 3, § 56, providing that the Legislature shall not, except as otherwise provided in the Constitution, pass any local or special law regulating the affairs of counties, etc., or authorizing the maintenance of roads, highways, etc., was annulled as to roads, highways, etc., by the amendment to article 8, § 9, authorizing the Legislature to pass local laws for the maintenance of public roads and highways without the local notice required for special or local laws.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 108; Dec. Dig. <3&wkey;97(l).]
    4. Statutes <&wkey;G7 — Special or General Law — Constitutional Provisions.
    If the authority to legislate by special act upon a certain subject is given by constitutional provision other than article 3, § 56, forbidding special acts regulating certain matters, such authority carries with it the right to enact all provisions which would be legitimately embraced in the bill, if section 56 was not a part of the Constitution.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 69; Dec. Dig. <@=67.]
    5. Statutes <&wkey;97(l)i — Local Acts — Roads— Constitutional and Statutory Provisions.
    The express authority of the Legislature under the amendment to Const, art. 8, § 9, to pass local laws for the maintenance of public roads and highways carries with it the right to regulate the affairs of the county in all such matters as may be appropriately connected with or subsidiary to the object of creating an efficient road system, notwithstanding it incidently regulates the affairs of the county.
    [Ed. Note. — For .other, cases, .see Statutes. Cent. Dig. § 108; Dec. Dig. <&wkey;>97(l).]
    6. Statutes &wkey;> 125(6) — Subject and Title-County Road Law.
    Const, art. 3, § 35, provides that no bill shall contain more than one subject, and article 3, § 56, forbids the Legislature to pass any local or special law regulating the affairs of counties or authorizing the laying out or maintenance of roads, highways, etc. • Vernon’s Sayles’ Ann. Civ. St. 1914, _ art. 3870, provides that each county commissioner shall receive from the county treasury on order of the commissioners’ court $3 for each day he is engaged in holding a term of the commissioners’ court. Article 6901 constitutes the county commissioners of the several counties supervisors of publie roads, each commissioner to supervise the roads in his precinct and to receive $3 a day for the time actually so employed, payable out of the county’s road and bridge fund. Articles 2274, 2275, fix the terms and sessions of the commissioners’ court. Sp. Acts 33d Leg. c. 77, known as the “Bexar County Road Law,” by section 3 abolished the office’of ex officio road commissioner, by section 6 prescribed the meetings of the commissioners’ court, by section 7 made failure to attend the meetings ground for removal, by section 14 authorized the court to employ clerical assistance, by section 27 declared its provisions to be cumulative of all general and special laws on the subject-matter, and by section 5 required each precinct county commissioner to supervise the roads in his precinct, to perform all the acts required by the court and fixed the salary of $2,400 per annum in lieu of all other fees and per diem allowance there payable or thereafter payable under general law. Held, that the Legislature intended to fix a salary to cover all the duties prescribed by the law, whether of roads or not and that such provision did not relate to a subject so disconnected from and independent of the subject of providing a system for laying out roads as to be constitutional because embracing two subjects.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 190; Dec. Dig. &wkey;>125(6).]
    7. Statutes &wkey;ol08 — Subject and Title-Constitutional Provisions — Construction.
    Const, art. 3, § 35, providing that no bill shall contain more than one subject, must be construed liberally rather than to embarrass legislation by strict construction unnecessary to the accomplishment of its object, and no provisions will be held unconstitutional when they relate directly or indirectly to a subject having a natural connection, and are not foreign to the subject expressed in the title.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. § 135;- Dec. Dig. &wkey;>108.]
    8. Constitutional Law <&wkey;48 — Construction oe Statutes — Constitutionality.
    Where the court has a serious doubt whether the Legislature exceeded its power -by embracing more than one subject in a bill, such doubt must be resolved in favor of the validity of the law.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 46; Dec. Dig. &wkey;>48; Statutes, Cent. Dig. § 56.]
    9. Constitutional Law &wkey;s70(3) — Validity oe Statute — Province oe Court.
    It is not the province of the court to declare a law invalid because it is unwise or unjust, or because opposed to public policy or the spirit of the Constitution, but it must violate some express provision of the Constitution.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 131; Dec. Dig. <S=o70(3).]

      Appeal from District Oourt, Besar County; W. S. Anderson, Judge.
    Action for injunction by George O. Alt-gelt against Cbas. X. Gutzeit and another. Judgment for defendants, and plaintiff appeals.
    Affirmed.
    E. P. Lipscomb and Geo. O. Altgelt, both of San Antonio, for appellant. Boyle & Storey, of San Antonio, for appellees.

      Application for writ of error pending in Supreme Court.

   MOUKSUND, J.

George O. Altgelt sued Charles X. Gutzeit, county commissioner for precinct No. 2 of Besar county, and Peter P. Hoefgen, county treasurer of Besar county, seeking to restrain the payment to said Gutzeit of a salary of $200 per month, which it was alleged had been paid him, and, unless enjoined, would continue to be paid him, under the provisions of a special act of the Legislature approved March 24, 1913, known as the “Besar County Boad Law,” the title of which act was recited. It was alleged that said act of the Legislature is unconstitutional and void in so far as it attempts to fis the salaries of the county commissioners of Besar county at $200 per month, in that it illegally regulates and attempts to regulate the affairs of Besar county by local or special law different from the general law of the state of Tesas. Plaintiff alleged that he was the owner of real and personal property situated in Besar county subject to tasation by the state and county, and in fact tased, and that by the payment of said amount to Gutzeit each month plaintiff’s burdens as a taspayer are increased, and that petitioner is without adequate remedy at law. It was stated in the prayer that the restraining order desired should apply only to the salary of $200 per month, and not to the per diem compensation for county commissioners fised by the general laws of lie state.

Defendants answered by general demurrer, a general denial, and a special answer in which the special law referred to by plaintiff was pleaded by stating the date of its approval and reciting its title, and it is alleged that said act is constitutional, and that it is authorized by article 8, § 9 of the Constitution.

The court refused to grant the temporary injunction. Upon the trial it was admitted that Gutzeit was county commissioner of precinct No. 2 and Hoefgen county treasurer, that Gutzeit has since his incumbency in such office received a salary of $200 per month, which was paid him by Hoefgen out of the funds of Besar county, and that provision for the future payment of such salary has been made by the commissioners’ court of Bexar county by virtue of the act of the Legislature approved March 24, 1913. It was also admitted that plaintiff was a taxpayer as alleged by him.

The special act of the Legislature known as the “Bexar County Boad Law” is not copied in the statement of facts, but is merely referred to. As it is a special law', not made a public act by its own provisions, it appears that it cannot be taken judicial notice of. City of Paris v. Tucker, 101 Tex. 99, 104 S. W. 1046. However, as it was pleaded by both parties, by giving its title and the date of its approval, as is authorized by article 1823, Bevised Statutes, it appears that the entire act was before the court as if it¡ had been copied in full in the pleadings of each party. Railway v. Rushing, 69 Tex. 306, 6 S. W. 834. Such act must therefore be considered a part of the record in this case, although not copied into the statement of facts.

The caption of the act, which fairly outlines its scope and effect, reads as follows:

“An act providing.more efficient road laws for Bexar county, conferring on the commissioners’ court of Bexar county control of all roads, bridges, drains, ditches, culverts and all works incident to same; providing for the adoption of rules governing same, their alteration or amendment ; providing for the abolishment of the office ex officio road commissioner, and prescribing the salaries of the commissioners; fixing the time of meetings of the commissioners’ court, and declaring the same cumulative; permitting the county commissioners in Bexar county to engage in other occupations; providing for the manner of purchasing materials and supplies, and of making contracts where the amount is over fifty dollars ($50.00) and less than five hundred dollars ($500.00); providing for the acquiring of land for roads and drainage by condemnation or otherwise; providing for the proper drainage and maintenance of railway rights of way; providing for the referring of petitions for new roads to the county commissioner of the precinct before action is taken; authorizing the employment of all necessary labor, teams, wagons, and clerical help, and providing payment therefor; providing for road or ditch crossings wherever necessary, and the acquiring of land for same; providing for roads sixty (60) feet wide; authorizing the apopintment of a county highway engineer, road superintendents and assistant engineers and other assistants, regulating the working of convicts, exempting all persons from road work and abolishing the office of road overseer, defining the word ‘road’; providing for the investment of sinking funds; prohibiting the blockading of county roads by trains, etc., and providing a penalty; prohibiting any county officer to be interested in any county contract; fixing ex-officio salary of the county judge; declaring this act cumulative; providing for the construction by the courts, repealing all laws and parts of laws in conflict therewith, and declaring an emergency.” Sp. Acts 33d Leg. c. 77.

Section 5 of said act is tbe one attacked by plaintiff. It reads as follows:

“Each precinct county commissioner shall inspect and supervise from time to time all roads in his precinct, and shall do and perform any and all acts required of him by the commissioners’ court, and all other duties required of him by law as county commissioner, and shall receive for his services an annual salary of twenty-four hundred dollars ($2,400.00) per annum, to be paid out of the general fund of the road and bridge fund, or any other available fund or the special road and bridge fund, in monthly installments, and shall be in lieu of all other fees and per diem of all kinds now payable or that may hereafter be allowed by general law.”

It is contended that this section, in so far as it provides for a salary of $2,400, per annum, is unconstitutional, in that it consti tutes an attempt to regulate the affairs oí Bexar county by a local or special law in contravention of section 56, art. 3, of tbe Constitution. That section of the Constitution provides, among other things, that the Legislature shall not, except as otherwise provided in the Constitution, pass any local or special law, authorizing:

“ * * * Regulating the affairs of counties, cities, towns, wards or school districts; * * *
“Authorizing the laying out, opening, altering or maintaining of roads, highways, streets or alleys. * * * ”

It is well established that the above-quoted provision with regard to the laying out, opening, altering, or maintaining of roads, highways, streets, or alleys has been, according to our decisions, annulled to all intents and purposes by the amendment to section 9, art. 8, which reads as follows:

“And the Legislature may pass local laws for the maintenance of the public roads and highways, without the local notice required for special or local laws.”

See Smith v. Grayson County, 18 Tex. Civ. App. 153, 44 S. W. 921; Dallas County v. Plowman, 99 Tex. 512, 91 S. W. 221.

The question then arises whether the Legislature in exercising the power given it under the above-quoted amendment is restricted by the provisions of section 56, art. 3, other than the one relating to roads.

If the .authority to legislate by special act upon a certain subject is given by a provision of the Constitution other than section 56, art. 3, such authority carries with it the right to enact all provisions which could legitimately be embraced in the bill if section 56 was not a part of the Constitution. Smith v. Grayson County, supra; City of Dallas v. Western Electric Co., 83 Tex. 243, 18 S. W. 552; Texas Savings & Real Estate Ins. Ass’n v. Heirs of Pierre, 10 Tex. Civ. App. 453, 31 S. W. 426; State v. Hanscom, 37 S. W. 453; Railway v. Galveston, 96 Tex. 520, 74 S. W. 537; Withers v. Crenshaw, 155 S. W. 1189; Cravens v. State, 57 Tex. Cr. R. 135, 122 S. W. 29, 136 Am. St. Rep. 977.

The authority to enact special road laws carries with it the right to regulate the affairs of the county in all such matters as may appropriately be connected with or subsidiary to the object of creating an efficient road system. The objection therefore that a special road law contains provisions regulating the affairs of a county is of itself entitled to no consideration. We do not mean to say, however, that a provision regulating the affairs of a county in a matter totally disconnected with the object of providing for a road system could be inserted in a special road law. Such a provision might be as foreign to the subject of providing a system for establishing and maintaining public roads as a provision changing a person’s name or locating a county seat, each of which things is also prohibited from being done by a special act.

All acts of the Legislature must comply with section 35 of article 3 of the Constitution, which provides that no bill shall contain more than one subject. The contention that section 5 of the special act known as the “Bexar County Road Law” is unconstitutional because it undertakes by special act to regulate the affairs of Bexar county raises the question whether that section relates to a subject which cannot be dealt with by a special law. If this be correct, then it follows that, if said section relates to such subject, it is evident that it is not appropriately connected with or subsidiary to the object of creating a road system for Bexar county, and must be declared to be in violation of the Constitution. In other words, if this act embraces two subjects, it violates section 35, art. 3, which has not been pleaded or relied on, but, in addition, it may be declared to violate section 56, art. 3, in that it enacts legislation upon a subject mentioned in said section, and not permitted under any other section of the Constitution, either expressly or as an essential or appropriate incident to any subject expressly permitted by another section. We therefore deem it advisable to go into the matter further than is perhaps necessary under the pleadings and brief of appellant. We will first state and discuss the legislation existing at the time said act was enacted, and then consider the provisions of said act, and construe section 5 thereof. By general law (Vernon’s Sayles’ Ann. Civ. St. 1914), it was provided as follows with respect to the compensation of county commissioners:

Art. 3870. “Each county commissioner, and the county judge when acting as such, shall receive from the county treasury, to be paid on the order of the commissioners’ court, the sum of three dollars for each day he is engaged in holding a term of the commissioners’ court, hut such commissioners shall receive no pay for holding more than one special term of their court per month.”
Art. 6901. “The county commissioners of the several counties are hereby constituted supervisors of public roads in their respective counties, and each commissioner shall supervise the public roads within his commissioner’s precinct once each year, and shall receive as compensation therefor three dollars per day for the time actually employed in the discharge of his duties, to be paid out of the road and bridge fund of the county: Provided, that no commissioner shall receive pay for more than ten days in each year. * * ”

The general law (Vernon’s Sayles’ Ann. Civ. St. 1914), with respect to meetings was as follows:

■Art. 2274. “The regular terms of the commissioners’ court shall commence and be held at the courthouse of their respective counties on the second Monday of each month throughout the year and may continue in session one week: Provided, however, that the provision of this act shall not be construed to be mandatory upon the court to hold more than one session of the court each quarter if the business of the court does not demand a session, and any session may adjourn at any time the business of the court is disposed of.”
Art. 2275. “Special terms of said courts may be called by the county judge or any three of the county commissioners, and may continue in session until the business is completed.”

There was a special road law for Bexar county (Special Laws 1909, c. 8) which provided that each member of the commissioners’ court should be ex officio road commissioner of his district, and contained the following statement with respect to compensation:

“Each of said commissioners shall receive as salary for the services required of them by this act 8400.00 per annum, payable quarterly, or as the commissioners’ court may determine.”

The act now under consideration (Sp. Acts 33d Leg. c. 77) contains, among others, the following provisions:

See. 3. “It is hereby specially provided that the office of ex officio road commissioner as now provided by law is hereby abolished in the county of Bexar, and from and after the final passage of this act the several commissioners of Bexar county shall cease to act as ex officio road commissioners, and their bonds as such shall be null and void, except for their official acts prior to the date of the final passage of this act.”
Sec. 6. “The commissioners’ court of Bexar county shall meet at the courthouse of Bexar county at ten o’clock a. m. each Monday, or on such regular day of the week as the court may fix in its rules, as provided in .section 2, and may remain in session until the business before the court is transacted. This provision is cumulative of all other laws governing the convening of the commissioners’ court, and no notice of such weekly meetings shall be necessary.”
Sec. 7. “It is hereby specially provided that it shall not be unlawful for any county commissioner to engage in any other occupation or business, but should a county commissioner, by virtue of such other business or occupation, fail or neglect to perform his duties as county commissioner he shall be subject to removal from office in the manner provided by law for the removal of county officers. A failure to attend meetings regularly shall be grounds for such removal.”
Sec. 14. “Should the commissioners’ court deem it advisable, it shall have the right to employ all clerical assistance necessary to attend to the affairs of the commissioners’ court, and all clerical work connected with the official duties of the members thereof, and to fix the salaries of such assistants to be paid out of the general fund of the county, or any other available fund.”
Sec. 27. “The provisions of this act are and shall be held and construed to be cumulative of all general and special laws of this state, on the subjects treated of in this act, when not in conflict therewith, but in case of such conflict this act shall control as to Bexar county.”

The Legislature had made the commissioners ex officio road commissioners of their districts, and awarded compensation for the services required of them by the act of 1909. In 1913 it abolished the office of ex officio road commissioner, and prescribed additional duties to be performed by the county commissioners as such, and in dealing with the subject of compensation the words for “services required of them by this act” were not used, but, instead, section 5, attacked by appellant, was inserted. The other sections of the act of 1913 above copied indicate an intention on the part of the Legislature not to confine itself to such matters as appertain strictly to the duties imposed on the commissioners with respect to roads.

We come then to section 5, and in view of the matters above set forth it seems very clear that the Legislature intended to fix a salary to cover all the duties prescribed by law, whether with respect to roads or not. If it be given a literal construction, it certainly so provides. But it is agreed that said section can be and should be construed to mean that the $2,400 per annum is to be received for services in connection with roads alone. We do not see how this can be done. In the first place, the very act itself undertakes to provide for holding regular terms of court every week, and thus, if the per diem provided by article 3870 could be collected for all of the time used in holding court, the compensation of the commissioners would be a very considerable amount in excess of $2,400 per annum; an amount of such consequence that it would naturally occur to the person drawing the bill that it should be expressly mentioned as excluded if it was to be received in addition to the $2,400. In the next place, the Legislature undertook to provide that 'a failure to attend meetings regularly should be ground for removal, which indicates that the special act was regarded as fixing an absolute salary to be received regardless of the number of days the commissioners should attend sessions of the court, and therefore it would be advisable to fix a penalty for failure to attend regularly. The abolishing of the office of ex officio road commissioner and the change of verbiage from that used in the former law also indicate the intention to make the salary of $2,400 cover all compensation to be received. But it may be argued that the Legislature merely fixed the amount to be allowed for services in connection with roads at the difference between the amount which would accrue under article 3870 and the $2,400 allowed by the special act, and that this, in effect, is the same as if such special act had named a certain amount to be received for road services alone. This is plausible, but it is difficult to ascribe to the Legislature an intent to allow varying sums to the commissioners for road services, and that would be the effect of such a construction. For instance, if one commissioner was absent from the court 50 days more than another, he would receive $150 less under article 3870, but by the special act would be allowed $150 more than the other commissioners for services in connection with roads. We cannot ascribe the use of the language contained in section 5 to an inadvertent failure to express the real intent, for the real intent, as gathered from previous legislation and other provisions of the act in question, appears plainly to coincide with the language used in said section, and, as the same Legislature used similar language in other special road laws, and the next Legislature followed with similar acts, we may take it that such Legislatures have construed the Constitution to permit them to enact provisions in special road laws fixing the entire compensation to be received by county commissioners.

We come, therefore, to the direct question whether tl;e provision fixing the compensation to be received by county commissioners for all services prescribed by general law, as well as those prescribed by an act purporting to establish a system for laying out and maintaining the public roads, relates to a subject so disconnected from and independent of the subject of providing a system for laying out roads as to make the law objectionable on the ground that it embraces two subjects within the meaning of section 35, art. 3, of the Constitution.

“None of the provisions of a statute will be held unconstitutional when they all relate, directly or indirectly, to the same subject, have a natural connection, and are not foreign to the subject expressed in the title.” Lewis’ Sutherland on Statutory Construction, § 118.

See Austin v. Railway Co., 45 Tex. 265; Tadlock v. Eccles, 20 Tex. 793, 73 Am. Dec. 213; Johnson v. Martin, 75 Tex. 40, 12 S. W. 321; Joliff v. State, 53 Tex. Cr. R. 61, 109 S. W. 176; Ex parte Abrams, 56 Tex. Cr. R. 465, 120 S. W. 883, 18 Ann. Cas. 45; Howth v. Greer, 40 Tex. Civ. App. 559, 90 S. W. 211; Newnom v. Williamson, 46 Tex. Civ. App. 615, 103 S. W. 656; Joy v. City of Terrell, 138 S. W. 215.

It is also well settled that the courts will construe section 35, art. 3, of the Constitution “liberally, rather than to embarrass legislation by a construction whose strictness is unnecessary to the accomplishment of the beneficial purposes for which it was adopted.” Austin v. Railway, supra. There is so much danger connected with, the passage of local and special laws that the legal mind views with concern every provision which is not very clearly germane to the subject, and is apt upon first impression to condemn all doubtful provisions, especially when they carry with them large disbursements of public funds. There being no necessity for making the provision relating to compensation apply to services other than those connected with the subject of roads, it is natural that in this case, upon first impression, it would appear that the necessary connection does not exist. It must, however, be borne in mind that there is a certain connection which makes these subjects overlap each other. The commissioner under the general law draws $3 per day for his services in attending the meetings of the commissioners’ court. At such meetings a considerable portion of his time is occupied, even under the general law with matters relating to public roads. A special law which seeks to inaugurate a more efficient road system necessarily, or at least very probably, will require more time to be devoted to road matters by the commissioners’ court. Such special law therefore necessarily or probably affects the amount of compensation received in the aggregate by the county commissioners for attending court. If this conclusion is correct, then it follows' that by a special road law, without saying a word about the compensation to be received for attending court, the amount paid by the county to its commissioners may be increased, and the law would be unobjectionable. If so, it seems the further conclusion would follow that any matter which is affected by the special law when drawn in a manner conceded to be unobjectionable is an appropriate incident to the subject of inaugurating a road system, or at least has such a connection therewith as to permit of a provision being inserted which includes all compensation to be received for attending meetings as well as for superintending and supervising roads. Again, it appears that in a special road law additional duties with respect to roads can be prescribed, not only for the commissioners individually, but also for the commissioners’ court. It would seem that the matter of compensation is of no greater importance legally than that of duties and powers, and that such matter of compensation has such a connection with the matter of duties and powers as to appropriately permit of its being dealt with in the same act. In the case of Smith v. Grayson County, supra, the county attorney sued to recover certain commissions and costs alleged to be due him by the county under the general laws of the state by reason of the fact that the county had worked the convicts, in whose cases such commissions and costs accrued, upon the roads until their fines and costs had been discharged. The county relied for its defense upon a provision of a special road law, to the effect that the commissioners’ court should not pay any costs adjudged against convicts if such convicts worked out their fine and costs upon the public roads. Among other contentions made by the county attorney was the one that this provision was not embraced in or germane to the title of the act, which was:

“An Act to be entitled an act to create a more efficient road system for the counties of Grayson, Dallas, Galveston, Brown, Comanche, Mills, Fannin, Travis, Hunt, Hill, Kaufman and Fayette, in the state of Texas authorizing the employment of a road commissioner, defining his duties, prescribing penalties for his failure to perform his duties, and further defining the powers and duties of the commissioners’ courts of the said counties under said act.” Acts 22d Leg. c. 54.

The court said:

“If the title to the act fairly gives reasonable notice of its subject-matter, the act will be upheld. The main subject of this act is the creating of a system of public roads and highways, and in furtherance of this purpose the commissioners’ court is authorized in its discretion to utilize the labor of county convicts; and the commissioners’ court, in its duties of managing the business of the county and controlling the convicts, is prohibited from paying the costs that may be adjudged against the convict. The terms employed in the title of this act are fairly indicative of the subject-matter of the act, and fully meet the requirements of section 35, art. 3, of the Constitution.”

It appears that, as the providing for working county convicts upon the public roads is a legitimate incident to a road law, it was proper to go a step further and deal with the matter of costs accruing in the cases against such convicts. In that case county officers were deprived in a special road law of part of the emolument given them by general law, and it was held that this was a matter incidental to the general subject of the act. That case illustrates fairly well the far-reaching effects which may legitimately be accomplished by reason of the fact that the subject is connected with that which expresses the general object to be accomplished.

"We have carefully considered this case, and, bearing in mind the rules to be applied in determining whether a law is unconstitutional, as clearly enunciated in the case of Brown v. City of Galveston, 97 Tex. 9, 75 S. W. 488, we conclude that it is our duty to hold that the section of the Bexar county road law attacked in this case does not contravene the Constitution. It is difficult to determine in many cases whether there is such a connection between subjects as is required by the Constitution, and we regard this as one of those cases, but, there being a serious doubt in our minds whether the Legislature exceeded its powers, that doubt has been, as it must be, resolved in favor of the validity of the law. It is not the province of the courts, as is said by our Supreme Court in the ease of Glass v. Pool (Sup.) 166 S. W. 377, to declare a law invalid because it is unwise or unjust, or because opposed to public policy or the spirit of the Constitution. It must violate some express provision of the Constitution.

The judgment is affirmed.
      &wkey;jFor other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: KEY, C. J.

license: Public Domain

text:
    TEXAS POWER & LIGHT CO. v. ROBERTS.
    (No. 5624.)
    (Court of Civil Appeals of Texas. Austin.
    May 30, 1916.)
    1. Damages <&wkey;147 — Pleading — Special Damages.
    The petition of plaintiff seeking to recover special damages for defendant’s failure to put in a partition to inclose office space rented to plaintiff must allege facts showing that at the time of the making of the contract defendant should have contemplated such damages would result from breach.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 410, 412; Dec. Dig. <@=>147.]
    2. Pleading <&wkey;228 — Petition — Breach of Conteaot — Motive of Defendant.
    Where no punitive damages were sought, and the petition averred that defendant maliciously breached its contract, special exception thereto should have been sustained, as defendant’s motive was immaterial.
    [Ed. Note. — For other cases, see Pleading, Cent. Dig. §§ 584-590; Dec. Dig. &wkey;>228.]
    3. Damages <&wkey;37 — Recovery—Double Recovery.
    Defendant demised a portion of an office to plaintiff, agreeing to erect a partition inclosing it. Plaintiff intended to carry on a millinery business in the demised space, but defendant’s failure to build the partition delayed the opening of plaintiff’s shop to her damage. Soli, that she could not recover for loss of profits of her business and at the same time for loss of time which she would have devoted to the business, for that would allow double recovery.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 237-241; Dec. Dig. &wkey;>37.]
    4. Damages <@=>40(2) — Speculative Damages —Profits.
    In such case, as plaintiff’s business had not yet been started, her claim for lost profits occasioned by defendant’s breach of contract is too remote, and cannot be sustained, but she may, upon showing that defendant knew injury would result to her from its failure to erect the partition pursuant to agreement, recover the net loss on her stock of millinery which she was unable to dispose of because of delay in opening; it appearing that such goods quickly depreciated in value due to change in styles.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 74-78; Dec. Dig. <@=>40(2).]
    5. Evidence <&wkey;498 — Opinion Evidence — Admissibility.
    In such case, opinion evidence as to the amount for which plaintiff’s millinery could have been sold, and its value after change in stylos, is admissible; but plaintiff cannot give opinion evidence as to the probable damage to her business.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2289; Dec. Dig. &wkey;>498.]
    Appeal from Bell County Court; W. S. Shipp, Judge.
    Action by Miss Lustre Roberts against the Texas Power & Light Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Spann & Spann, of Temple, for appellant.
   KEY, C. J.

The following statement of the nature and result of this suit is copied from appellant’s brief:

“Miss Lustre Roberts, appellee, instituted this suit in the county court of Bell county, Tex., on the 29th day of August, 1914, against the appellant, alleging that on or about the 12th day of August, 1912, she had rented from the appellant a certain space in the office occupied by the appellant in the Temple State Bank Building, in the city of Temple, Boll county, Tex., from the 1st day of September, 1912, until the 1st day of January, 1913; that appellant agreed to partition said space from the balance of the office occupied by it and have the same completed by September 1, 1912; that she relied upon said rental contract and immediately went to market to purchase her stock of millinery goods to open her business, in said rented premises; that she did purchase her stock of merchandise; and that the same reached Temple on August 31, 1912. Appellee alleged that the appellant failed to comply with its contract to have said partition installed and completed by the 1st day of September, 1912, and did not complete the same until the 10th day of September, 1912; that she was thereby kept out of possession of said rented premises for a period of ten days; that by reason thereof she was unable to have her millinery opening and share in the early fall trade as she had contemplated, and because thereof she had suffered great damage.
“She further alleged that on or about the 15th day of September, 1912, she had customers come from nearby towns, who had come at her written request, but that she could not effect sales with them because she was unable to show her merchandise on account of the failure of the appellant to install said partition.
“She further alleged that, had she secured the rented premises on September 1st, she could have had her opening and display as contemplated by her; and that as a result of said breach of contract she had a great deal of stock left on her hands at the end of the season, which she alleges was practically worthless because of the change in fashions and styles.
“She further alleged that it was understood and agreed that the appellant would cause to be installed in said rented space a water hydrant, and furnish her, the appellee, with water free of cost other than the agreed rental of $25 per month; that she repeatedly requested the installation of said water hydrant, and that the appellant failed to install the same,, and that by reason thereof she was forced to go around the corner to a drug store to secure drinking water, and that she was unable to furnish her customers with drinking water, which humiliated her very much. (To these, last-mentioned allegations the court sustained appellant’s third special exception.) She further alleged that, by reason of the failure of the appellant to install and complete said partition by September 1st, she was caused to lose, and did lose, ten days of time from her employment, which was reasonably worth the sum of $100, and that, by reason of the delay in opening her establishment, she was unable to sell her goods and merchandise and meet her bills; that she was damaged in the sum of $500; that, by reason of the failure of appellant to install and complete said partition and to install said hydrant in said rented premises and to furnish her water, her said millinery business was for several months after September 10, 1912, greatly impaired and injured, from which injury her business had not recovered at the time of the trial, to her further damage in the sum of $400.
“Appellee prayed for damages in the sum of $1,000, for costs of suit, and for general relief. She did not allege that the appellant had notice of the special damages above mentioned at the time of making the contract.
“The appellant answered by general exception and nine special exceptions to the appellee’s petition, all of which were by the court overruled except appellant’s third special exception, which was by the court sustained. The action of the trial court in overruling said general and special exceptions has been assigned as error and will be presented under proper assignments. The appellant further answered by admitting that it had entered into the rental contract in the manner as alleged by the appellee, but denied that the time of the building of said partition in said rented premises was of essence and said that it did not contract, agree, or bind itself to install said partition in said rented premises on or before September 1, 1912, but that it was agreed that said partition should be installed and completed as soon after the 1st of September, 1912, as was convenient and possible.
“Appellant especially denied all other allegations contained in the appellee’s petition, and that the failure on the part of this appellant to install said partition in any way caused or contributed to any of the appellee’s alleged damages as set forth in said petition, and specially pleaded that, appellee’s alleged damage was not the natural or proximate result of the appellant’s alleged breach of contract. The appellant’s pleadings are only important to show the join-der of issue, since appellant introduced no evidence.
“The cause was tried by a jury. The appellee, being the only witness introduced, testified in her own behalf to the entering into of said contract, and that she was delayed ten days in obtaining possession of said rented premises by reason of the failure of the appellant to install said partition; that she afterwards opened in said rented premises a millinery business; that she lost ten days of her time by reason of the failure of the appellant to install said partition, which the court permitted her to estimate to be $100. On cross-examination she testified that she was not employed by any one; that she expected to receive returns for her labor by conducting a millinery store, trimming hats, offering them for sale, and to be paid for her services out of the profits of her business. The court also permitted her to testify, over the objection of appellant, that in her opinion from September 1, to September 10, 1912, she was damaged to the extent of $500. The court further permitted her to testify, over the objection of the appellant, that her business was injured after September 10 th to the extent of several thousand dollars.
“At the close of the appellee’s testimony, the appellee rested her ease. Whereupon the appellant moved the court to instruct the jury to render a verdict in favor of appellant, which motion was by the trial court considered and overruled. Whereupon the appellant rested, the cause going to the jury under instructions from the court upon the testimony of the appellee only. The jury rendered a verdict in favor of the appellee for $509, upon which verdict- the court accordingly entered judgment on the 6th day of April, 1915.”

Opinion.

Without making specific reference to the assignments of error presented in appellant’s brief, we deem it sufficient to say that the questions hereafter considered are properly presented; and, having reached the conclusion that the case should be reversed, we announce our views upon the controlling questions as follows:

The trial court should have sustained some of appellant’s exceptions to the' plaintiff’s petition. The damages sought to be recovered are special damages, and therefore it was necessary for the plaintiff to allege in her petition such facts as would show that at the time the contract was made appellant should have contemplated that such damages would result from its breach thereof. No such facts were alleged, and, for that reason, the court should have sustained the general demurrer to the petition.

The special exception which was addressed to the paragraph of the plaintiff’s petition, wherein it was alleged that appellant acted maliciously when it breached the contract, should also have been sustained. No punitory damages were sought to be recovered, and therefore appellant’s motive for breaching the contract was immaterial. Nor was the. plaintiff entitled to recover $100, or any other amount, for her alleged loss of employment. The undisputed proof shows that she intended to devote her time to the conduct of her millinery business, and to permit her to recover for both loss of time and injury to the business would allow a double recovery.

We also sustain appellant’s contention that, inasmuch as it was not alleged and proved that the plaintiff had an established business, her claim for net profits was too remote and speculative, as held by this court in Walter Box Co. v. Blackburn, 157 S. W. 220. Tlie right to recover the loss of alleged profits as damages for breach of a contract is one upon which there is much diversity of opinion among the courts, and we do not desire to be understood as holding that such damages are not recoverable in any case. On the contrary, in American Construction Co. v. Caswell, 141 S. W. 1013, this court held that such damages were recoverable where the defendant had wrongfully diverted trade from the plaintiff’s place of business. That case, it is true, was an action for tort and not for breach of contract; but, in considering whether or not damages sought to be recovered are too remote, we see no reason for making any distinction on that account. In the Caswell Case it was shown that the plaintiff had an established business ; the amount of profits for several preceding years was shown, and it was also made to appear that such profits had materially decreased during the time for which plaintiff sought to recover damages; and this court held that such damages were not too remote and speculative. The reason why courts have refused to allow recovery for net profits which the plaintiff alleges he would have made from a business which was not in existence at the time the contract was made and breached seems to be that such alleged net profits are not capable of proof with that degree of certainty required by the law. Whereas, when a business is already established and is making a profit when the contract is breached or the tort committed, such pre-existing profit, together with other facts and circumstances, may indicate with reasonable certainty the amount of profit which would have been made but for the wrongful conduct complained of. However, while the plaintiff in this case may not be entitled to recover for loss of net profits, we are not prepared to hold that she is not entitled to recover substantial damages. If upon another trial her pleading shall be so framed as to admit it, and the testimony shall show that time for the completion of the partition which appellant agreed to put in the building by the 1st day of September, 1912, was of the essence of the contract, and that, on account of the failure to do so, the plaintiff was unable to sell a portion of her stock of millinery which otherwise she would have sold, and that on account of the nature of the millinery business, change in styles, etc., the value of said unsold portion was materially diminished, and to that extent constituted a loss, and that the defendant at the time the contract was breached had notice of such facts as would require it to contemplate that such loss would result directly from its breach of the contract, then the plaintiff would be entitled to recovery for such diminution in the value of that portion of the stock which she would have sold if the contract had been complied with, regardless of whether or not she would have made a net profit upon her entire business if appellant had complied with the contract. In other words, if appellant’s breach of the conti *.ct was the direct cause of her failure to sell her stock of millinery or any portion of it, for more than she was afterwards compelled to sell it for, and such result was in contemplation of the parties at the time the contract was made and breached, then she has sustained a pecuniary loss on account of such breach and appellant is liable therefor. Jones v. George, 61 Tex. 345, 48 Am. Rep. 280.

Over appellant’s objection, the court permitted appellee to state to the jury her opinion to the effect that she considered that her loss on account of appellant’s breach of the contract resulting from her failure to have her opening and get her business started at the time she expected to was $500, and that the injury to her business generally was up into the thousands. If upon another trial appellee seeks to recover upon the only theory which our decision leaves open to her, she will prove about what portion of her stock of goods was not sold on account of her failure to begin business at the time she contemplated, how much such goods could hav,e been sold for, and how much they depreciated in value on account of the change of styles, etc., and the difference w-ill constitute the measure of damages; and therefore there will be no necessity for any opinion testimony, unless it be as to the amount of goods so left on hand, and the amount for which they could have been sold and their value after the change in styles, which will be proper testimony. Concurring with Prof. Wigmore, the writer' of this opinion believes that 4 great deal of sophistry has been promulgated and many unsound rulings made in reference to the so-called opinion rule of evidence. In chapter 65, vol. 3, of Prof. Wig-more’s admirable treatise on the Law of Evidence, the opinion rule is elaborately considered, the author’s view being, in substance, that in all cases the true test should be whether or not the opinion of the witness could probably aid the jury or judge in determining a particular question of fact, and that when a witness, though a nonexpert, is familiar with the surrounding circumstances, he should be permitted to give his opinion, to be considered by the jury for no more than what they may consider it worth in determining the question to which the opinion relates; and in the concluding, section of that chapter, among other things, the author says:

“If one were asked to name the rules most peculiar to the Anglo-American evidence-law, he ought perhaps to name the Character rule, the Hearsay rule, and the Opinion rule. Neither is found on the Continent, All three are indigenous judicial developments. All are the product of the jury system. All are founded on a peculiar cautiousness in our law, and all have been developed with an equally peculiar rigidity and stolid disregard of practical consequences. All three are complex and far-reaching in application as well as voluminous in detailed development. But a radically different future may be I predicted fpr them. The Hearsay rule and the Character rule will always remain in our law in a more or less relaxed form; while the_ Opinion rule will in substance disappear. An important difference between them is that the first two are the solid growth of experience; while the last rule, in its American development, is merely the logical technical development of a misunderstood term. The Opinion rule day by day exhibits its unpractical subtlety and its useless refinement of logic. Under this rule we accomplish little by enforcing it and wo should do no harm if we dispensed with it. Wo accomplish little, because from the side on which the witness appears and from the form of the question, his answer, i. e., his opinion!, may often be inferred. We should do no harm, because, even when the final opinion or inference is admitted, the inference amounts in force usually to nothing unless it appears to be solidly based on satisfactory data, the existence and quality of which we can always bring out, if desirable, on cross-examination. Add to this that, under the present liberal application of the rule, and the practice as to new trials, a single erroneous ruling upon the single trifling answer of one witness out of a dozen or more in a trial occupying a day may overturn the whole result and cause a double expense of time, money and effort; and we perceive the absurdly unjust effects of the rule. Add, finally, the utter impossibility of a consistent application of the rule, and the consequent uncertainty of the law, and we understand how much more it makes for injustice rather than justice. It has done more than any one rule of procedure to reduce our litigation towards a state of legalized gambling.”

For the reasons stated, the judgment of the court below is reversed, and the cause remanded for another trial consistent with this opinion.

Reversed and remanded.
      <@=»For other cases see same topic and KEY-NUMBER In all Key-Numbered Digests and Indexes


author: DUNKLIN, J.

text:
    HAGOOD v. HAGOOD.
    (Court of Civil Appeals of Texas.
    April 29, 1916.)
    Dissenting Opinion.
    For majority opinion, see 186 S. W. 220.
   DUNKLIN, J.

The only controverted issue involved upon this appeal is the proper construction of the will of R. L. Hagood. The conclusion of the majority is, substantially, that as the language of the will is of itself clear and free from ambiguity, ail agreed facts shown in the statement of facts should be excluded from consideration in arriving at the testator’s intentions, because such evidence would tend to vary the express terms of the will.

Some of the quotations shown in the opinion of the majority to the effect that a will cannot be reformed to correct a mistake made by the testator in its execution are inapplicable here and tend to confuse rather than to elucidate the issue, since appellants did not present that issue, but elected to stand upon the will as written, interpreted in the light of facts dehors the will shown in the agreed statement of facts.

All the authorities agree upon the general rule announced in the quotations in the opinion of the majority that parol evidence will not be -permitted to contradict, add to, or explain the terms of a will which are free of ambiguities or obscurities. But there is another rule of construction equally as well established, that the terms of a will or contract, which, standing alone, are definite and certain, may be shown b3r parol evidence to be ambiguous and the ambiguity may be removed by evidence of like character. 3 Jones on Evidence, § 472.

“Ambiguity is defined as duplicity; indistinctness; an uncertainty of meaning or expression used in a written instrument.” 1 Words and Phrases, p. 199.
“A ‘latent’ ambiguity, as defined by Lord Bacon, is ‘that which seems certain and without ambiguity for anything that appeareth upon the deed or instrument, but there is some collateral matter, outside of the deed, that breedeth the ambiguity.’ ” 3 Words and Phrases, p. 31.

Prof. Wigmore, in volume 4, § 2462, of his able and exhaustive work on Evidence, traces the history of the general rule forbidding the introduction of parol evidence to vary the terms of a written instrument. He notes that until the middle of the fifteenth century land could not be alienated by will at all, and that for a long time after that period “through the lack of a liberal and sympathetic search for the testator’s meanings, the spirit of rational interpretation was hindered.” 1-Ie notes further that a like strictness of interpretation of all legal documents continued until about the beginning of the eighteenth century, when there set in “a growing spirit of liberality.” And in section 2470 he notes the stages of progress of liberalism in the construction of wills, both in England and the United States, from Lord Coke’s time down to the present, giving the following quotations of authorities:

“1831, Sir James Wigram, Y. G., Extrinsic Evidence in Aid of the Interpretation of Wills, Proposition V: ‘For the purpose of determining the object of a testator’s bounty, or the subject of disposition, or the quantity of interest intended to be given by his will, a court may inquire into every material fact relating to the person who claims to be interested under the will, and to the property which is claimed as the subject of disposition, and to the circumstances of the testator and of his family and affairs, for the purpose of enabling the court to identify the person or thing intended by the testator, or to determine the quantity of interest he has given by his will. The same (it is conceived) is true of every other disputed point, respecting which it can be shown that a knowledge of extrinsic facts can, in any way, be made ancillary to the right interpretation of a testator’s words.’
“In 1833, Parke, J., in Doe v. Martin, 4 B. & Ad. 770, 785: ‘It may be laid down as a general rule that all facts relating to the subject-matter and object of the devise * * * are admissible to aid in ascertaining what is meant by the words used in the will.’
“In 1842, Sugden, L. C. in Attorney General v. Drummond, 1 Dr. & W. 356 (interpreting a deed containing the words ‘Christian’ and ‘Protestant Dissenter’): ‘The court is at liberty to inquire into all the surrounding circumstances which may have acted upon the minds of the persons by whom the deed or will (it matters not whether it was one or the other) was executed. * * * The court therefore has not merely a right, but it is the duty to inquire into the surrounding circumstances, before it. can approach the construction of the instrument itself.’ _ .....
“1886, Blackburn, J., in Allgood v. Blake, L. R. 8 ICxeh. 160: ‘The general rule is that in construing a will the court is entitled to put itself in the position of the testator and to consider all material facts and circumstances known to the testator with reference to which he is to be taken to have used the words in the will, and then to declare what is the intention (i. e. sense) evidenced by the words used, with reference to those facts and circumstances which were (or ought to have been) in the mind of the testator when he used those words. As said in Wigram on Extrinsic Evidence: ‘The question in expounding a will is, not what the testator meant —as distinguished from what his words express —but simply what, is the meaning of Ms words.’ But we think that the meaning of words varies according to the circumstances of and concerning which they are used.’ ”

And in 3 Jones on Evidence, § 477, the author, after referring to the former rule of strict construction of wills, says:

“The rule now is unquestioned that extrinsic evidence in aid of the interpretation of wills is admissible for the purpose of showing the object of the testator’s bounty, the property devised, and the quantity of interest intended to be given. Evidence may be received as to every material fact relating to the person who claims under the will, and to the property devised, as to the circumstances of the testator and his family and affairs, so as to lead to a correct decision of the quantity of interest the claimant is entitled to by the will. This is true as to every disputed point respecting which it can be shown that a knowledge of extrinsic facts can aid in the right interpretation of the will.”

In 4 Wigmore on Evidence, §§ 2471 to 2477, inclusive, the author announces the general rule, which he says has never been questioned, and exceptions thereto, that while extrinsic facts and circumstances are admissible to discover the intent of the testator, his declarations of such intention are rejected because the tendency of such proof would be 'to overthrow the written instrument, or else establish by parol evidence a transaction which is required to be shown by an instrument in writing. See, also, 1 Greenleaf on Evidence, §§ 290, 291; 2 Underhill on Wills, § 90S.

The most frequent application of the rule allowing evidence of facts dehors the will occurs when the language, employed to designate the property devised or the objects of the testator’s bounty, is applicable alike to more than one piece of property or more than one person, and such evidence is introduced to identify the property or person intended.

And in section 289, 1 Greenleaf on Evidence, the author states his individual belief to be that in all other cases than those parol evidence to show the testator’s intention should be excluded under the general rule; but he cites no decision supporting a doctrine so broad in scope as that.

The authorities abound with statements that the court should place itself in the position of the testator and construe his will in the light of his surrounding circumstances, to the end that his intention may be discovered and carried out, if that purpose can be accomplished without violating some rule of law. 1 Greenleaf on Evidence, § 289; 1 Jar-man on Wills, § 422; 2 Underhill on Wills, § 909. In Finley v. King’s Lessee, 3 Pet. (28 U. S.) 377, 7 L. Ed. 712, Chief Justice Marshall said:

“The intent of the testator is the cardinal rule in the construction of wills; and if that intent can be clearly perceived, and is not contrary to some positive rule of law, it must prevail; although in giving effect to it, some words should be rejected, or so strained in their application, as materially to change the literal meaning of the particular sentence.”

The statement occurs frequently in the text-books that wills are construed in accordance with the same rules that apply to deeds and contracts. But in Lambert v. Paine, 3 Cranch, 97-138, 2 L. Ed. 377, 391, the following was said:

“Wills are expounded more favorably, to carry the intent of the testator- into effect, than conveyances at common law, which take effect in the lifetime of the parties; wills being frequently made by people enfeebled by age or indisposition, and without the aid of counsel learned in the law. Therefore, words no.t so technical for the purpose, have in a great variety of cases, for above 100 years, been construed by .the judges, to carry a fee, which would not do so in a deed.”

Other cases of like import are cited in Hancock v. Butler, 21 Tex. at pages 813, 814 (orig. edition), bot. page 726 (later edition).

The authorities are uniform upon the proposition that when a will is made, the presumption obtains that the testator intended, thereby to dispose of all his property, and no presumption will be allowed that he intended to die intestate as to a part of his estate, if the words used in the will may fairly carry the whole. 1 Underhill on Wills, §. 464; Hardenbergh v. Kay, 151 U. S. 112-120, 14 Sup. Ct. 305, 38 L. Ed. 93.

By the express terms of the will in controversy in this suit, R. L. I-Iagood devised his entire estate. He left the will unchanged at the time of his death, although he survived J. O. Hagood, one of the beneficiaries originally intended, by more than 3 years. One of the provisions of the will limits the action of the county court with respect to his estate to the probate of the will, and the return of an inventory and appraisement of the property belonging to his estate — a provision wholly inconsistent with intestacy of one-half of the estate; and the devise of the entire estate which testator might own at the date of his death to the beneficiaries named, to the exclusion of all other kindred, indicates an intention that such other kindred should be excluded from a participation in said estate, especially as the will was never changed after.the death of J. O. Hagood. The facts so enumerated create an ambiguity and uncertainty as to whether or not the testator intended that the will should cast the whole estate upon the survivor -of those beneficiaries in the event one should die before the death of the testator. And independent of testator’s instructions to his attorneys with respect to how he desired his will to be drawn, and independent even of the agreement as to tlie testator’s intention in fact, tlie facts enumerated above, considered in connection with the further facts and circumstances shown in the record, including the joint acquisition by the three brothers of practically all the property owned by them, the fact that R. L. and J. O. Hagood never married, that they lived in the same home with R. B. Hagood and his family for several years prior to the execution of the two wills and up to their respective deaths, and were cared for by R. B. Hagood and his family during their long illness from consumption, with which both died, in connection with an absence of proof of any facts such as financial needs or special affection, tending to show why testator might probably have desired his other kindred to share in the estate in the event of the predecease of one of the beneficiaries, all lead irresistibly to the conclusion, in the opinion of the writer, that in making the will in question the testator intended that, in the event of the death of One of said beneficiaries prior to the death of the testator, the survivor of the two should take the whole estate, if he should survive the testator also. If the will can be so construed as to give effect to that intention without doing violence to the language therein employed, interpreted in accordance with the law controlling in the construction of wills, then that interpretation should be adopted and the will enforced accordingly; otherwise it should be held that the testator died testate as to one half his estate and intestate as to the other half. And that is the next question to be considered.

Authorities, practically without number, might be cited announcing the general rule, that in construing wills the terms used must be interpreted in their plain and ordinary sense. But lexicographers often give different meanings of the same words according as they are einployed in common parlance, or in theology, law, etc., and it cannot be doubted that words used in deeds or wills which have a well-fixed meaning in law should be given that construction by courts rather than some other meaning not popularly understood by those not versed in the law. Eor illustration: In early times a conveyance “to A. and his heirs’’ and one “to A. for life, remainder over to his heirs,” were substantially the same. In either ease A. acquired only a life estate in the property, and after his death his heirs took the remainder under the conveyance. In other words, the word “heirs” was a word of purchase according to its plain meaning to the lajmlan. But later, by judicial construction, it was interpreted as a word of limitation indicating the quantity of estate conveyed, which would be a title in fee simple, or fee tail, as the case might be, and that meaning was finally fixed and established by the decision in Shelley’s Case. See 2 Reeves on Real Property, § 892.

If the beneficiaries named had both survived the testator, then under the common law the will vests in them a joint tenancy, and under the common law, in case of the death of one before the decease of the testator, the will vests the whole estate in the survivor, “because,” as said in 1 Jarman on Wills, §§ 340, 341, “as joint tenants take per my et tout, or, as it hás been expressed, ‘each is to take of the whole, but not wholly, and solely,’ any one of them existing when the will takes effect will be entitled to the entire property.” If one of the intended joint tenants dies before the date the devise becomes effective, then no- joint tenancy is created, and it is perfectly clear that the underlying and controlling reason for so construing the will as to cast the whole estate upon such surviving devisee is the purpose to give effect to the intention of the testator that such should be the result. And the rule applying in case of a devise which would create a joint tenancy if both devisees survive the testator, furnishes another instance of giving effect to the testator’s intention at the sacrifice of the plain meaning of words in that a devise to two or more is construed to mean a devise to one only, viz., the survivor.

By article 2471 of the statutes of descent and distribution of Texas, it is provided that where two or more persons own an estate jointly and one dies before a severance, his interest in said estate shall not survive to the remaining joint owner or joint owners, but shall descend to the heirs of the decedent in the same manner as if his interest had been severed before his death. That is a statute of inheritance after title has vested in two or more joint tenants, and does not necessarily control in the present suit because J. O. and R. B. Hagood never became joint tenants. But several states have enacted statutes, which further provide that upon the death of an intended joint tenant by will before the death of the testator, the interest which he would have acquired under the will had he survived the testator shall pass to his heirs.

If, by reason of our statute, it can be said that the will itself does not show an intention on the part of the testator that the beneficiary surviving at the death of the testator should take the whole estate, yet that intention clearly appears from extrinsic facts and circumstances noted already. And if the intention of the testator is to be the controlling factor, regardless of the specific terms of the will, in the one instance, why not in the other?

Under the common law, a devise or conveyance to two or more with a provision denoting the share each is to take, would, upon the face of the instrument, constitute the takers tenants in common. And Mr. Jarman in his work on Wills, § 341, following his statement of the rule obtaining if the devise is to- joint tenants, says:

“While it is equally clear that if the dev-isees or legatees in any of these cases had been made tenants in common, the failure of the gift as to one object would not have entitled the other to the whole by the mere effect of survivorship. Where, however, the devise or bequest embraces a fluctuating class of persons, who, by the rules of construction, are to be ascertained at the death of the testator; or at a subsequent period, the decease of any of such persons during the testator’s life will occasion no lapse or hiatus in the disposition, even though the devisees or legatees are made tenants in common, since members of the class antecedently dying are not actual objects of gift.”

In passing, it is proper to note that to do this, the designation of several beneficiaries by a collective term is construed as meaning one of that class only. It is quite evident that the discussion by the author, of the rules in the two instances referred only to wills showing plainly by their own language the creation of the character of estates devised and without reference to cases in which the intention of the testator, in case of ambiguities in the will, might be shown by extrinsic evidence, a .subject discussed in later chapters of the work.

Many authorities are cited in the opinion of the majority defining a class, substantially, as a body of persons which can be designated by the same general term, such as “children,” “grandchildren,” “nephews,” “brothers,” or “sisters.” In some of the definitions found in the authorities, it is expressly stated that the designation of the beneficiaries by name, or a statement of the share each is to take, will destroy the class. It is also a rule that a class may be created by the inclusion of a part only of those standing in the same relation to the testator. The definitions of “class” referred to are given in numerous cases where the beneficiaries named did constitute a class within the meaning of those definitions. If those decisions could be construed as holding that persons not coming within those definitions cannot constitute a class, then to that extent they would be mere dicta and not necessarily authoritative. Except as announcing general principles, little aid can be procured from adjudged cases with their ever differing facts. In Smith v. Bell, 6 Pet. 68, 79, 8 L. Ed. 322, Chief Justice Marshall said:

“The construction put upon words in one will has been supposed to furnish a rule for construing the same words in other wills, and thereby to furnish some settled and fixed rules of construction which ought to be respected. We cannot say that this principle ought to be totally disregarded; but it should never be carried so far as to defeat the plain intent, if that intent may be carried into execution, without violating the rules of law. It has been said truly (Gulliver v. Poyntz, 3 Wils. 141) ‘that cases on wills, may guide us to general rules of construction; but, unless a case cited be in every respect directly in point, and agree in every circumstance, it will have little or no weight with the court, who always look upon the intention of the testator as the polar star to direct them in the construction of wills.’ ”

That statement has been quoted with approval in Colton v. Colton, 127 U. S. 300-309, 8 Sup. Ct. 1164, 32 L. Ed. 138, and in Adams v. Cowen, 177 U. S. 471, 475, 20 Sup. Ct. 668, 44 L. Ed. 851.

If the two beneficiaries named in the will in controversy had been designated as those brothers with whom the testator made, his home, without naming them, then they would have constituted a class within the meaning of the definitions of that term usually given, and would have given the one surviving when the will took effect the whole estate. That the brothers named in the will were the ones with whom he made his home is admitted, but instead of identifying them by collective and descriptive terms, and in order to establish their identity beyond cavil, he named them, and, by so doing, according to the usual definitions of a “class,” he metamorphosed what would have resulted in a devise of the whole estate to R. B. Hagood into a devise of only one-half of it, and that too contrary to the testator’s intention in fact. Viewing such a construction in the light of fundamenal principles, the inquiry would not be inappropriate: When this magic in mere names of persons?

If the question, whether or not the will in the present suit, was to the testator’s two brothers as a class should be determined by precedents, then only those cases should be considered which involved devises or legacies to persons identified in such a manner as not to come within the usual definitions of “class.” Applying that test, the decided weight of such precedents sustains the contention of the appellant in the present suit, assuming that the cases which are considered more nearly in point are those specially noted in the opinion of the majority, and without attempting an examination of the numerous decisions otherwise referred to. In the case of Herzog v. Title Guarantee & Trust Co., 177 N. V. 86, 69 N. E. 283, 67 L. R. A. 146, by a residuary clause of the will, the remainder of the estate after satisfying other bequests was given to testator’s four children, who were all named, share and share alike; and it was held that the gift was not to a class.

In re Hittell’s Estate, 141 Cal. 432, 75 Pac. 53, 54, the gift was to two sisters, as tenants in common, who were not related to testator, but with whom he lived for 10 years prior to his death. It was held that the gift was not to a class, and that the death of one of the beneficiaries prior to the death of the testator caused a lapse of one-half of the estate. The further question whether or not the devise was intended to be a devise to a class was discussed and the conclusion reached that the circumstances relied on to show such intention were not sufficient to accomplish that result, thus leaving the inference to be drawn that if such intention was so shown, the decision might have been different.

In Melton v. Sellars (Ky.) 181 S. W. 346, by the Court of Appeals of Kentucky, the beneficiaries were identified by terms of gen-aral description, and it was held that the gift was to a class, tested by the usual definitions of what is necessary to constitute a class.

In Ritch v. Talbot, 74 Conn. 137, 50 Atl. 42, the gift was to testator’s two brothers, Charles and Christopher Talbot, share and share alike. Charles Talbot, one of the brothers, died prior to the death of the tes tator. The court said:

“The bequest to the two brothers, Charles and Christopher Talbot, was one to them individually and not to them as a class. By operation of section 541 of the General Statutes, the legacy to Charles Talbot was in legal effect a gift to him, and to his issue in case he should not survive the testator.”

Hollowing are cases cited in appellant’s brief to support his contention that the gift was to him and J. O. Ilagood as a class:

In Bolles v. Smith, 39 Conn. 217, the gift was to “Frederic M. Smith, Valentine W. Smith, and Timothy W. Smith, sons of my late brother, Roswell Smith, and to their heirs and assigns forever, equally, the residue of my estate * * * ” upon the payment by them of a legacy to testator’s wife. The gift was held to be to a class because such appeared to be the intention of the testator as gathered from the whole will in the light of surrounding circumstances. And in the opinion in that case the court said:

“It is true that by the law of Connecticut the survivors, in ordinary cases of joint tenancy, do not take the whole estate. But the argument does not depend upon the jus acerescendi. If they are joint tenants, prima facie they take as a class. If they take as a class the lapsed legacy goes to the survivors.”

And tli© latter holding is supported by Lockhart v. Vandyke, 97 Va. 356, 33 S. E. 613.

In Warner’s Appeal, 39 Conn. 253, the remainder of the estate left after other devises was divided into four equal parts, one of which was given “to the sons of my two sisters, deceased, Henry S. and Charles K. Warner.” It appeared that the mother of each of said nephews had successively been the wife of the father of those nephews. One of those nephews having died prior to the death of the testator, it was held that the gift was to the three as a class, and the two survivors took the entire fourth interest that had been bequeathed to the three, because such appeared to be the intention of the testator, viewing the will as a whole.

In Jackson v. Roberts, 80 Mass. 546 (14 Gray), a certain residue of the estate was bequeathed to Elizabeth, Ellen, Edward, Grace, and Mary, five children of an adopted daughter of testatrix, share and share alike, the issue of any of said beneficiaries to take the share of their parents by representation. It was further provided in the will that in event any one of three of the children, Edward, Grace, and Mary, should die without issue, then the share of that one should go to the survivors of Ellen, Edward, Grace, and Mary, thus omitting Elizabeth, the issue of any one of those four to take by representation the share of their parent. It was held that the devise was to a class, and that the shares of Grace and Ellen, who died without issue and before the death of the testatrix, passed to the survivors. It is noted in the opinion that the fact that testatrix, by codicil to the will, expressly confirmed it after the death of Grace clearly indicates her original intention that the bequest was to the children as a class. It was further said that the mention by name of individuals who compose a class is not conclusive that a class was not intended, and in that connection occurs the following:

“And it is not to be doubted, that when the intention of survivorship is in any other way plainly shown by the will itself, or by the will and such evidence of extrinsic facts as is legally admissible for the purpose of showing it, such intention must prevail.”

(Numerous English authorities are cited in support of that announcement.

In Re lye’s Estate, 182 Mich. 699, 148 N. W. 727, the gift of the property in controversy was “to my sister Hattie Butterfield, and my brothers, Wesley and Dwight Skinner, to each an undivided one-third.” The testatrix was survived by the two brothers named, but her sister Hattie Butterfield died prior to her death. In holding that the devise was to the sister and two brothers as a class, the court said:

“The presumption is that a testator intended to dispose of his entire estate, and not to die intestate either as to the whole or any part thereof, and the will should be so construed, unless the presumption is clearly rebutted by the provisions of the will or by the evidence to the contrary. 40 Cyc. 1409; Toms v. Williams, 41 Mich. 552-565, 2 N. W. 814; Des Grand Champ v. Duflo, supra [169 Mich. 104, 135 N. W. 98]. Iu the instant case we have not only the presumption to aid us, but we have also, the express language of the testatrix, that she intended to give the rest, residue, and remainder of her estate to her sister and brothers. * * * We recognize the general rule contended for by appellee that, where property is given to several persons by name, to be equally divided between them, they take as tenants in common, and not as joint tenants, or as a class. But the authorities hold, we think, that this rule yields to a different construction when it plainly appears from the will that it was the intention of the testator that the survivors should take the whole. We think that this is such a case, and that for the reasons stated the trial court erred in its conclusion in reversing the action of the probate court.”

Numerous authorities are cited in the opinion in support of that construction.

In Re Dangdon’s Estate, 129 Cal. 451, 62 Pac. 73, the gift in controversy was “unto my nephews Callaghan Byrne, James W. Byrne, and Ered Byrne, in equal proportions.” The bequest was held to be to those nephews as a class, and that Fred Byrne having died prior to the death of testatrix, leaving no descendant, that part of the estate intended for him passed to the other two nephews who survived the testatrix. In that case a section of the Civil Code of California was quoted, which reads:

“In case of uncertainty arising upon the face of a will as to the application of any of its provisions, the testator’s intention is to be ascertained from the words of the will, taking into view the circumstances under which it was made, exclusive of his oral declarations.”

It was held that there was such uncertainty upon the face of the will, and hence the surrounding circumstances of the testatrix at the time she made the will could he shown by parol evidence aside from her oral declarations.

The familiar common-law rule of evidence for explaining a latent ambiguity in wills and other written instruments was thus by statute, made applicable to wills showing patent ambiguities also. According to the old common-law rule, ambiguities apparent upon the face of a written instrument could not' be explained by parol evidence of extrinsic facts, and, presumably, this statute was passea for the purpose of changing that rule. Other decisions practically to the same effect as those discussed above are Page v. Gilbert, 32 Hun (N. Y.) 301; Swallow v. Swallow, 166 Mass. 241, 44 N. E. 132; Hoppock v. Tucker, 59 N. Y. 202; Schaffer v. Kettel, 96 Mass. (14 Allen) 52S; Stedman v. Priest, 103 Mass. 293; Mann v. Hyde, 71 Mich. 278, 39 N. W. 78; Roosevelt v. Porter, 36 Mise. Rep. 441, 73 N. Y. Supp. 800; Meserve v. Haak, 191 Mass. 220, 77 N. E. 377; Smith v. Haynes, 202 Mass. 531, S9 N. E. 158; Hazard v. Stevens, 36 R. I. 90, 88 Atl. 980; Chase v. Peckham, 17 R. I. 385, 22 Atl. 285; Security Trust Co. v. Lovett, 78 N. J. Eg. 445, 79 Atl. 616; Lockhart v. Vandyke, 97 Va. 356, 33 S. E. 13; McCoy v. Houck, 180 Ind. 634, 99 N. E. 97.

If, in a deed or will disposing of real estate, the word “heirs” can be construed as a word of limitation and not as a word of purchase, as it plainly indicates, if a devise to two or more as joint tenants can be read as a devise to one only in the event he alone survives the testator, if a devise to several as tenants in common can be read as a devise to one only in the event the devise is to a class and that one only survives the testator, if the intent of the testator is the cardinal rule in the construction of wills, and if, as said in Jackson v. Roberts, 14 Gray (80 Mass.) 550, supra, and supported, in effect, by practically all the other authorities last cited, “No rule of law gives an inflexible sense and effect to a bequest made to children of a family, by their several names, nor to a bequest to them ‘equally’ or ‘in equal shares,’ ” then, under the facts and circumstances shown in the statement of facts in the present suit, excluding the declarations of the testator and the opinion of his attorneys therein appearing, no sound reason is perceived why the will of R. L. Hagood, which, upon its face, purports to be a devise to his two brothers as joint tenants and not as tenants in common, should not be con-

strued as a devise to a class, according to the undoubted intention of the testator; and for the reasons noted, the writer is of the opinion that the judgment of the trial court should be reversed, and judgment here rendered in favor of the appellant for the property in controversy.


author: RICE, J.

text:
    SMITH v. FIRST NAT. BANK OF WACO et al.
    (No. 5646.)
    (Court of Civil Appeals of Texas. Austin.
    May 17, 1916.)
    1. Appbakancb <&wkey;4 — Filins Plea — Waives of Time of Answering.
    Where suit is brought to a term too late for service at that term, defendant waives his right not to answer at that term by filing a plea of privilege before adjournment of the term, under Rev. St. 1911, art. 1882, providing that filing answer shall constitute an appearance of a defendant so as to dispense with necessity for the issuance or service of citation upon him.
    [Ed. Note. — For other cases, see Appearance, Cent. Dig. §§ 12-14; Dec. Dig. <&wkey;4.j
    2. Venue <&wkey;32(2) — Residence—Waiver.
    Where defendant, through no fault of the clerk or plaintiff or his attorneys, fails to call the court’s attention to a plea of privilege at the term at which filed, and it appears there was time for the court to have passed on it if presented, and the case is not continued without prejudice to such plea, he waives his right to have the plea passed on by the court at a subsequent term, under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1910, providing that pleas to the jurisdiction and other dilatory pleas not involving the merits shall be determined at the term at which filed, if the business of the court permits, and rule 24 for the government of district and county courts (142 S. W. xix) that such pleas shall be tried at the first term at which the attention of the court shall be called to them, unless passed by agreement of parties with consent of the court.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 49; Dec. Dig. @^?32(2).]
    3. Venue &wkey;>32(2) — Residence—Waiver.
    In such case an amended plea of privilege cannot be filed at a subsequent term to which the ease has been continued.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 49; Dec. Dig. <&wkey;>32(2).]
    Appeal from, McLennan County Court; Geo. N. Denton, Judge.
    Action by the First National Bank of Waco against A. M. Smith and another. From a judgment for plaintiff, the named defendant appeals. Affirmed.
    Hall & Barclay, of Wharton, for appellant. Howard D. McElroy, of Waco, for appellees.
   RICE, J.

This suit was brought by the First National Bank of Waco against the Waco Mill & Elevator Company, a private corporation, and appellant, who was a resident citizen of Wharton county, to enforce the payment of a draft for $315, drawn by the Mill & Elevator Company upon appellant and indorsed by that company to the bank, who advanced the money thereon to it. The bank afterwards, by due course of mail, forwarded the draft for collection against appellant, who, when presented, refused to pay same. Upon its return the bank undertook to charge the draft against the account of the Mill & Elevator Company (who had funds on deposit in excess of such amount), who declined to permit it to do so.

The suit was brought to the May term of the county court, but too late for service at that term. On the 9th of June appellant filed his plea of privilege to be sued in Wharton, the county of his residence. The May term of the county court adjourned on the 19th of June. This plea of privilege was not called to the attention of the court, nor any order of any character made in reference thereto, though there was sufficient time before adjournment for the court to have passed thereon. Tire next succeeding term of said court began on the first Monday in July, and prior thereto appellant’s counsel wrote the clerk of said court asking when the next term of the county court of Mc-Lennan county would convene, and was promptly informed that it would commence on the first Monday in July. On the 10th of July appellant filed his amended plea of privilege in said court. On appearance day the case was set for trial on tire 14th of July, at which time no mention was made of appellant’s plea of privilege; and when called for trial appellees made motions to strike out both said pleas of privilege, the first on the ground that it was filed during the May term of the court, and not called to the attention of the court during that term, although the court had time and the condition of the docket was such that it could have been heard and determined by the court, if attention had been called thereto, and the second to strike out the amended plea of privilege, for the reason that it had been filed after the case had been continued for the May term of court, both of which motions were by the court sustained, and, the appellant declining to plead to the merits of the case, the court heard evidence and rendered judgment in favor of the First National Bank against the Mill & Elevator Company and appellant for the sum of $315, with interest at the rate of 6 per cent, per annum from April 7, 1915, together with all costs of court, providing that execution should first issue against appellant, and only against the Mill & Elevator Company in the event the judgment should not be satisfied out of the property of appellant, from which action of the court appellant prosecutes this appeal.

Notwithstanding appellant was not required to answer at the May term, he waived his right by the filing of his plea of privilege. See article 1882, Rev. Stat. 1911. Having failed to call the attention of the court to this plea at that term, it appearing that there was sufficient time for the court to have passed upon it if it had been presented, and the case not being continued without prejudice to such plea, it must be held, under the authority of article 1910, vol. 2, Vernon’s Sayles’ Revised Civil Statutes, and rule 24 for the government of district and county courts (see 142 S. W. xix), that the action of the court in striking out same was correct, and appellant therefore had waived his right to have the same passed upon at a subsequent term of the court. Under the authority of Harris Millinery Co. v. Melcher, 142 S. W. 100, which is on all fours with the case at bar, we hold that the action of the court in striking out appellant’s plea of privilege was not error; and, appellant failing to answer to the merits, judgment was properly rendered against him upon the proof submitted.

If appellant or his attorneys had been misled as to the convening of the court by ap-pellees or their attorneys, or any unfair advantage of any character taken of him to his prejudice with reference to such pleas, it might be" reason for holding that the judgment was improperly rendered. It is true that appellant’s counsel assert that they were under belief that the May term of court had adjourned before they filed their plea of privilege. There is nothing in the record, however, to show that such impression was based upon the answer of the clerk to their letter; nor was such impression created by any action or conduct upon the part of appellees or their attorneys; hence no ground of complaint on this score can be urged.

Finding no error in the proceedings of the trial court, its judgment is in all things affirmed.

Affirmed.
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