author: CONNER, C. J. DUNKLIN, J. BUCK, J.

text:
    WAPLES et al. v. GILMORE.
    (No. 8650.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Oct. 14. 1916.
    Dissenting Opinion, Oct. 16, 1916.
    Rehearing Denied Oct. 17, 1916.)
    1. Constitutional Law &wkey;>68(l) — DistbibuTION 03? PoWBES — POWERS OF COUBT — Po- . litical .Questions.
    If nominations after primaries to fill vacancy caused by office incumbent’s death were expressly forbidden to be made by the executive committee of a party, the court could declare the effect of the law, and the mere fact that the action of the committee, or of the court, might have a political effect would not make the legal question involved political instead of judicial.
    LEd. Note. — For other cases, see Constitutional Law, Cent. Dig. § 125; Dec. Dig. <@=»68(1).]
    2. Elections <&wkey;147 — Nomination — How MadEi — Foweks ob Executive Committee.
    Where after a primary the incumbent of an office died, causing a vacancy for which no nomination had been made, Rev... St. 1911, arts. 3172, 3173, as to powers of party executive committee to fill vacant nominations caused by declination or death of nominee, do not apply, such sections applying only when after primary nomination .the nominee dies or declines the nomination, so that the committee could nominate as it chose in accordance with party rules.
    [Ed. Note. — For other cases, see Elections, Cent.'Dig. § 122; Dec. Dig. &wkey;147.]
    3. Constitutional Law <&wkey;68(l) — Distribution of Powers — Political Questions.
    The mere fact that one party so predominates as to assure its nominee of election is no ground for interference by the courts with the nominating machinery of such party, where the question is unprovided for,in-law and wholly political. •
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 125; Dec. Dig. <&wkey;68(l).]
    Dunklin and Buck, JJ., dissenting.
    Appeal from District Court, Tarrant County; J. W. Swayne, Judge.
    Suit by C. E. Gilmore against Paul Wa-ples and others for an injunction. From an order granting the writ, defendants appeal.
    Order set aside and injunction vacated.
    D. W. Odell, Capps, Cantey, Hanger & Short, and D. B. Trammell, all of Ft. Worth, for appellants. Wynne & Wynne, of Wills Point, and Lattimore, Bouldin & Lattimore, of Ft. Worth, for appellee.

      Writ of error granted by Supreme Court and judgment of Court of Civil Appeals reversed.

   CONNER, C. J.

This proceeding was instituted by G. E. Gilmore against Paul Waples, as chairman of the state Democratic executive committee, and against 32 others as members of said executive committee, to restrain the said committee from making and declaring a nomination for state railroad commissioner to fill the vacancy caused by the recent death of the Hon. W. D. Williams. Upon the filing of the petition before the judge of the Seventeenth judicial. district, the prayer of the petition was granted, and pursuant thereto a writ of injunction was issued, and from the order so granting said writ, an appeal was duly prosecuted and the cause submitted to this court on the 10th inst. The petition upon which the order was granted, omitting formal parts and the paragraphs giving the names and residences of the parties, and setting forth the prayer for the writ, is as follows:

“Plaintiff is a citizen of the state of Texas and resides in Van Zandt county in said state. The names of the defendants are mentioned in the above paragraph of this petition, and hereafter when they are adverted to in this petition for the_ sake of brevity will be called the executive committee of the Democratic party. Their places of residence are scattered over the state •of Texas, and are designated in the foregoing paragraph, and'will not be further referred to.
“(2) For cause of action plaintiff charges that he is a Democrat and belongs -to the Democratic party, and has always affiliated with it in all of its ’ organizations; that W. D. Williams, who was one of the railroad commissioners of the state of Texas, died, and that his death occurred since the primaries at which the Democratic party selected for its various nominees for the various offices for the state of Texas, and said Williams was not the nominee of said party for said office; that the death of said deceased member of the railroad commission occurred after all meetings of the Democratic party in convention assembled; and that the vacancy, occurring by reason of the death of the said W. D. Williams, has not been filled by nomination of any person by the Democratic party as a candidate to fill the said place, but your petitioner is informed and believes and so charges that the executive committee of the Democratic party of the state of Texas is to meet on the 5th day of October, 1916, in the city of Ft. Worth in the county of Tarrant for the purpose, among other things, of unlawfully and illegally attempting to declare a nominee of the Democratic party for the state of Texas to be placed on the ticket to fill the vacancy on the railroad commission caused by the death of the said W. D. Williams, and of certifying such nomination to the secretary of state of the state of Texas; that there have been two candidates that have announced for the office to fill said vacancy, your petitioner and Charles H. Hurdleston, as has been published by the various papers throughout the state of Texas, and applicant is informed that others may announce, and your petitioner charges that the executive committee of the Democratic party has no power or authority under the laws of the state of Texas, nor has there been given to said executive committee or delegated to them by any lawful authority, the authority to make or declare said nomination or certification. Your petitioner is informed and believes, and so charges, that said executive committee has been called together by the political machinery of this state that now has charge of, and is attempting to dominate,_ the politics of this state, with the avowed intention and declared purpose of declaring Charles H. Hurdleston, who is the appointee of Governor Ferguson to fill the vacancy caused by the death of the said W. D. Williams until the next general election, which is in November, to be the nominee, of the Democratic party for said office and of so certifying to said secretary of state; that said action that is being and threatened to be’taken by said executive committee is unlawful and unjust; that your petitioner is a candidate for said office, and announced before he learned of the course that was going to be attempted to be pursued by the executive committee of the Democratic party of the-state of Texas; and your petitioner is informed and believes, and so charges, that Governor Ferguson, the Governor of Texas, has notified members of the executive committee of the Democratic party of the state of Texas that they will be called together on the 5th day of this month at Ft. Worth, Texas, for the purpose of selecting a candidate to succeed W. D. Williams, deceased. As an earnest of this, your petitioner charges, upon information and belief, that Walter Jones, one of the executive committeemen of the Seventh senatorial district, and James Stubbs of the Seventeenth senatorial district, have each received notice of said meeting from Governor Ferguson. There is absolutely no provision by statute, nor no provision made by any action of the Democratic party acting by and through its conventions and organizations authorized to act, to name or declare a nominee for said party created under this emergency, and your petitioner respectfully shows to the court that the only power and authority that said committee could have, if it takes action at all, is to determine the manner and way a candidate shall be selected by the Democratic party of the state of Texas to be placed on the ticket as its nominee. The great Democratic party of the state of Texas has the power, the right, and the vested right to be heard in the selection of its candidate, and it has a right to speak either by primary or by convention through its people in the selection of its candidate, and no power, nor authority, nor right, is vested in the executive committee of the Democratic party to declare any one the nominee of the party.
“(3) Your petitioner charges that the action of the executive committee of the Democratic party, and if the name of any person as such nominee be so certified to him, of the secretary of state in attempting to declare the nominee of the Democratic party for such office and to place his name upon the Democratic ticket of the state of Texas, if same be not prevented, will be equivalent to an election. Your petitioner is a candidate and has the full right under the Constitution and laws of this state to make the race before the Democratic party óf the great people of the state of Texas for this-office, and if1 the executive committee and the defendants in this case are permitted to meet and in star chamber to declare and speak for the Democratic party of the state of Texas, that he will be deprived of a valuable right and of the privilege, conceded to every citizen of the United States and the state of Texas, to ask the people of -his party to determine either by ballot or by convention his right to have his name placed upon the ticket to fill the office to which he aspires, and if the executive committee is permitted to act, and permitted to unlawfully and illegally declare a nominee, or in other words to declare the appointee of Governor Ferguson, or any other person, the nominee of the Democratic party, and to so certify to the secretary of state, it will be directly taking away from the people and from the people that constitute the Democratic party in the state of Texas, the right to speak, and place it in the hands of the political machinery of the state, and your petitioner will thereby suffer irreparable injury.”

Title 49 of the Revised Statutes of Texas of 1911 provides for elections, both general and primary, by the people of the state to determine the choice of electors for the several offices, executive, legislative, and judicial, required by the form and purposes of our state government. In chapter 5, relating to general elections, an official “ballot” is provided- for. It is declared that such ballot shall contain the printed names' of- all candidates whose nominations for- an elective office have been duly made and properly certified. And article 2966 declares that:

“No name shall appear on the official ballot except that of a candidate who was actually nominated (either as a party nominee or as a non-partisan or independent candidate) in accordance with the provisions of this title.”

It is further provided in the chapter named, article 2968, that:

“Where a nominee shall have declined Ms nomination, or shall have died, and the vacancy so created shall have been filled, and such facts shall have been certified in accordance with the provisions of article 3172, thereupon the secretary of state or county judge, as the case may be, shall promptly notify the official board created by this act to furnish election supplies that such vacancy has occurred, and the name of the new nominee shall then be printed upon the official ballot, if the ballots are not already printed. If such declination or death of the nominee occurs after the ballots are printed, or due notice of the name of the new nominee is received after such printing, the official board charged with the duty of furnishing election supplies shall prepare as many pasters bearing the name of the new nominee as there are official ballots, which shall be pasted over the name of the former nominee on the official ballot before the presiding judge of the precinct endorses his name on the ballot for identification.”

In view of these provisions, and of others perhaps not now necessary to particularly notice, the complainant below, and appellee here, C. E. Gilmore, seeks to support the order appealed from upon articles 3172, 3173, e. 10, tit. 49. These articles read as follows:

Article 3172: “A nominee may decline and annul his nomination by delivering to the officer with whom the certificate of his nomination is filed, ten days before the election, if it be for a city office, and twenty days in other cases, a declaration in writing, signed by him before some officer authorized to take acknowledgments. Upon such declination (or in case of death of a nominee), the executive committee of a party, or a majority of them for the state, district or county, as the office to be nominated may require, may nominate a candidate to supply the vacancy by filing with the secretary of state in the case of state or district officers, or with the county judge in the case of county or precinct officers, a certificate duly signed and acknowledged by them, setting forth the cause of the vacancy, the name of the new nominee, the office for which he was nominated, and when and how he was nominated.”
Article 3173: “No executive committee shall ever have any power of nomination, except where a nominee has died or declined the nomination as provided in article 3172.”

Appellants urgently insist that, notwithstanding the provisions of the statutes noted, injunctive relief should not have been granted, for the reason that the right, privilege, or complaint of the petitioner, Gilmore, is political rather than juridical. If, however, it be true, as appellee insists, that article 3173, above quoted, properly applies to the ease made by the plaintiff’s petition, then the majority, composed of the writer and of Associate Justice BUCK, are not inclined to agree with appellant’s contention. Section 3, art. 1, our state Constitution, provides that all freemen have equal rights, and that no man is “entitled to exclusive separate emoluments or privileges, but in consideration of public service.” And section 19 of the same article provides that no citizen shall be deprived of “life, liberty, property, privileges or immunities, or in any manner disfranchised except by [the] due course of the law of the land.” In view of which and of Revised Statutes, art. 4643, expressly clothing the district courts with power to issue injunctions, “where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to- the applicant,” we feel unable to agree to the contention mentioned.

The petition presents the case of a citizen entitled to align himself with the Democratic party and to vote and to seek the favor of the electors in obtaining an office. These, as1 it seems to said majority, are rights or privileges having their basis in the fundamental law of the land, and that the right of our people to the free and .untrammelled exercise of their constitutional privileges is to be guarded with sleepless vigilance by all who appreciate the blessings of free institutions. Such rights and privileges seem equal in importance to freemen to rights of liberty and property, in protection of which courts constantly exercise their functions. Assuming the application of the statutes relied upon by appellee, no sound reason appears to said majority why the general language of article 4643, hereinbefore quoted in part, should not apply and be available. Under the averments of the petition, which must be accepted as true in our-determination, the threatened act would be such impairment of the plaintiff’s privileges as to amount to an entire destruction of them, and this under the circumstances' was admitted on the submission. If in fact the threatened act of the executive committee be expressly forbidden, as appellee insists, then as the majority named view it, the question becomes legal in part at least. In such case it would properly be a function of the court to declare the effect of the law, and the mere fact that the action of the committee, or the action of this court, might have a political effect does not make the legal question involved political instead of judicial. See State of Wisconsin v. Cunningham, 83 Wis. 90, 53 N. W. 35, 17 L. R. A. 145, 35 Am. St. Rep. 27; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980; In re Sawyer, 124 U. S. 200, 8 Sup. Ct. 482, 31 L. Ed. 402; Anthony v. Burrow (C. C.) 129 Fed. 783; 3 Bouvier’s Law Dictionary, p. 2961; McDonald v. Lyon, 43 Tex. Civ. App. 484, 95 S. W. 67; Robinson v. Wingate, 36 Tex. Civ. App. 65, 80 S. W. 1068; Harding v. Commissioners’ Court, 95 Tex. 175, 66 S. W. 44; City of Dallas v. Consolidated Street Ry. Co., 105 Tex. 337, 148 S. W. 292; Fletcher v. Tuttle, 151 Ill. 41, 37 N. E. 683, 25 L. R. A. 143, 42 Am. St. Rep. 220; Winnett v. Adams, 71 Neb. 817, 99 N. W. 681; Alderson v. Commissioners, 32 W. Va. 640, 9 S. E. 868, 5 L. R. A. 334, 25 Am. St. Rep. 840; State v. Poster, 111 La. 939, 36 South. 32; Kearns, v. Howley. 188 Pa. 116, 41 Atl. 273, 42 L. R. A. 235, 68 Am. St. Rep. 852; 15 Cyc. 331.

W|o need not, however, elaborate the views above expressed inasmuch as the majority, composed of the writer and Associate Justice DUNKLIN, are of the opinion that articles 3172 and 3173 have no proper application to the facts set forth in the plaintiff’s petition, and that, therefore, as will more fully hereinafter appear, the question presented to us is political rather than judicial, and that, hence, the plaintiff was not entitled to the relief sought and awarded him by the court’s order below. It seems evident from the petition that the right or privilege of the plaintiff, in the absence of an applying statute, is wholly political. If the threatened act be consummated, he may yet continue to be a candidate and seek the office to which he aspires. It is not alleged in the petition that the threatened act necessitates the loss or destruction of anything of determinable pecuniary value, and it is merely speculative to say that an unimpeded, untrammelled candidacy, such as he seeks, would result in his election. So that, as stated, in the absence of an applying statute, the question presented is undoubtedly political. Do, however, the statutes invoked apply? In 1905 (Laws Tex. vol. 12, p. 520 et seq.) our Legislature passed an act covering the entire field of elections, prescribing the qualifications of voters', provided that votes should be by ballot, providing for the divisions of counties and cities into voting precincts, the proper notices and returns of election, election supplies and returns, defining the powers and duties of the officers of election, and prescribing the method of conducting elections, etc. Said act, from section 1 to section 101, has relation to general elections ; the act further, however, provides under a different heading for primary elections, and from section 102 to section 193, inclusive, relates to such primary elections. As codified, the law is found in title 49 of Revised Statutes of 1911. In both the act of 1905 and in the codification, the two subjects, to wit, the subject of general elections and of primary elections, are kept almost wholly separate. Chapters 1 to 9, inclusive, of the title relate to general elections, the concluding chapter on this subject consisting of “Miscellaneous Provisions.” In the chapters relating to the general election we note but one reference to provisións' found among the articles relating to primary elections, and that is in article 2968, c. 5, which we have already quoted, which provides that, where a nominee shall have declined the nomination or shall have died, the vacancy so created shall be filled in accordance with article 3172, also quoted, and which authorizes an executive committee to make a nomination to fill the vacancy. Chapter 10 of the codification relates almost if not entirely to the subject of primary elections'. The necessary qualifications of voters and of officers, the character of ballot, the method of conducting the election, of canvassing the result, of making the returns, etc., are all prescribed distinctly and independently of like provisions relating to general elections'. And it is in this chapter of the codification, as likewise in the act of 1905, under the heading of “Miscellaneous Provisions,” that we find article 3173 already quoted, and upon which appellee relies, prohibiting an executive committee from making a nomination except where a nominee has died or declined the nomination, as provided in the preceding article 3172. It seems quite plain to the majority last stated that the “nominee” in the mind of the Legislature at the time of the enactment of articles 3172 and 3173, was the nominee of a primary; for among other things, as will be seen by a re-reference to article 2968 already quoted, that in the contingency of the declination or death of a nominee, after the official ballots have been printed, that then pasters shall' be provided bearing the name of the new nominee, which “shall be pasted over the name of the former nominee on the official ballot.” In the case of W. D. Williams this direction could not be followed. He was in no sense a nominee. His name, under any reasonable construction of the statutes, could not lawfully be placed upon the official ballots in the coming election. He was not a candidate1 before the primary. Did time admit, we might, we think, cite numerous instances, where it had been held that terms of general import in statutes were restricted by the connection in which they had been .used. It is said in 36 Cyc. p. 1119, par. (II), that:-

“By the rule of construction known as ‘ejus-dem generis’ where general words follow the enumeration of particular classes of persons or things, the general words will be construed as applicable only to persons or things of the same general nature or class as those enumerated.”

And in Bear Bros. & Hirsch v. Marx & Kempner, 63 Tex. 301, it was said by our Supreme Court that:

“In construing a statute, it is often proper, and even necessary, that the meaning of words may be ascertained -by reference to the meaning of words associated with them. This rule is thus stated by an elementary writer: ‘In the construction of statutes, likewise, the rule “noscitur a sociis” is very frequently applied; the meaning of a word, and consequently the intention of the Legislature, being ascertained by reference to the context, and by considering whether the word in question and the surrounding words are, in fact, ejusdem generis, and referable to the same subject-matter.’ ”

Article 3173 must, therefore, be read in the light of its connecting articles and of the subject under consideration of the lawmakers at the time, and, as already indicated, in the mind of the majority last-named, the Legislature in the enactment of article 3173-did not have in contemplation the contingen-ey that has been presented, by the death of the Hon. W. D. Williams. If this be true, as already stated, then the question of whether the Democratic executive committee of Texas shall undertake to make a nomination and certify such nomination to the secretary of state is wholly political, the right and wrong of which is dependent upon rules and regulations prescribed by the Democratic party, or of its controlling authorities, and not upon any law to the execution of which the courts are committed. As was said by the Court of Appeals of Kentucky in Davis v. Hambrick, 109 Ky. 276, 58 S. W. 779:

“Political parties are voluntary associations for political purposes. They are governed by their own usages, and establish their own rules. Members of such parties may form them, reorganize them, and dissolve them at their will. The voters constituting such party are, indeed,1 the only body who can finally determine between contending factions or contending organizations. The question is one. essentially political, and not judicial, in its Character. It would be alike dangerous to the freedom and liberty of the voters, and to the dignity and respect which should be entertained for judicial tribunals, for the courts to undertake in any case to investigate either the government, usages, rules, or doctrines of a political party, or to determine between, conflicting claimants’ rights growing out of its government.”

See, also, State ex rel. R. C. Jennett v. Owens, 63 Tex. 261.

Nor is it alleged in the plaintiff’s petition that by any rule of the Democratic party, of which he is a member, that the state executive committee is precluded under the circumstances shown in this case from making a nomination. So far as we can be advised by the record the threatened procedure is in accord with party regulations.

It is alleged and insisted that this state is predominately Democratic, that a nomination is equivalent to an election; but what if it were otherwise? Let us suppose that the voting strength of the Democratic party and the Republican party, or of the Socialist party, was very nearly equal, so nearly so that two or more candidates of the Democratic party for any given office would almost so certainly divide the strength of the party as to make certain the election of the nominee of the Republicans or of the Socialists. Then should it be said from the viewpoint of the party man that a Democratic Legislature, in the enactment of article 3173, intended to preclude its chief executive and supervisory body, selected under the provisions of our election law by the voters of the various districts ol' Texas, from safeguarding the pasty interests by making a nomination when a vacancy in a state office had been created by death too late, as here, to name or nominate another by primary convention before the date of the general election, at which, under the general election laws, the officer must be selected? We think not. It can make no difference in principle that the state is largely Democratic instead of Republican or Socialist. The principle is the same, and if under the circumstances the plaintiff in this proceeding can lawfully invoke the aid of the court to prevent a party nomination, we see no reason why a Republican or a Socialist might not do the same. It would certainly be to the political advantage of either of said parties, if the state was politically closely divided, to prevent concerted action on the part of its political adversary, and, as stated, we think it could make no difference in principle whether or not it is so divided. With the success or failure of the different parties, or of the various candidates, the courts have nothing to do, other than as the written law may require of them. And where, as here, the question is unprovided for in the law and is wholly political, as we think it is, the authorities are almost, if not entirely, uniform that the courts will take no cognizance of such controversies. City of Dallas v. Consolidated Street Ry. Co., 105 Tex. 337, 148 S. W. 292; Townsen v. Merfelder, 49 Tex. Civ. App. 289, 109 S. W. 420; Robinson & Watson v. Wingate, 98 Tex. 267, 83 S. W. 182; Id., 36 Tex. Civ. App. 65, 80 S. W. 1067; Watson v. Cochran, 171 S. W. 1068; Annapolis v. Gadd, 97 Md. 734, 57 Atl. 941; State v. Foster, 111 La. 939, 36 South. 32; Alderson v. Commissioners, 32 W. Va. 640, 9 S. E. 868, 5 L. R. A. 334, 25 Am. St. Rep. 840.

We might profitably add much, perhaps, to what we have said, but the exigencies of the case and the insistence of the parties have been such that we feel somewhat hurried, and therefore will conclude our hastily expressed views by saying that in our judgment, until such time as our Legislature shall provide for á contingency such' as is involved in this action, the properly constituted political authorities concerned are supreme. We therefore are of opinion that the trial court erred in granting the prayer of plaintiff’s petition, and in ordering the issuance of an injunction. It is, accordingly, adjudged that said order be set aside, and the injunction issued in pursuance thereof be vacated.

BUCK, J., dissents in part and reserves the privilege of indicating his views in writing.

DUNKLIN, J.

(dissenting). My reasons for dissent from the conclusions of th'e majority upon the issue first discussed in the opinion are as follows:

The controlling question is one of jurisdiction to grant' the relief prayed for by ap-pellee Gilmore. >

All political rights are derived from the Constitution or Statutes, or from both those sources." If, by article 3173 of our Statutes, the Legislature intended to deny to the state executive committee of a political party the authority to nominate a candidate for office under circumstances alleged in the present suit, and if the purpose of that Statute was to permit any and all candidates to make the race for such an office, untrammeled by such a nomination, 'yet the statutory rights thus given to appellee, and other candidates in the same situation, are none the less political by reason of the fact that they are conferred by Statutes.

• The power vested in judges of district and' county courts by article 4643 to grant writs of injunction relate only to suits within the jurisdiction of said courts, and the general jurisdiction of the district court is prescribed in chapter 3, tit. 24, of the Statutes. Those jurisdictional statutes refer alone to civil suits. In the absence of some special ■provision of the Statutes to the contrary, the character of such suits is determined by the common law, which' is adopted b.y Statutes of this state, and it is well settled by the common law that civil demands do not include demands for the enforcement of political rights. City of Dallas v. Consolidated St. Ry. Co., 105 Tex. 337, 148 S. W. 292; Harding v. Commissioners’ Court, 95 Tex. 175, 66 S. W. 44; McDonald v. Lyon, 43 Tex.Civ.App. 484, 95 S. W. 67; Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980.

Hence the writer is of the opinion that even though article 3173 of the Statute be given the interpretation invoked by appel-lee, the district court in which, this suit was instituted had no jurisdiction of it, and that the judge thereof had no authority to grant the writ of injunction.

BUCK, J.

.(dissenting). 'As stated in the majority opinion, the writer agrees with the views expressed by Chief Justice CONNER that if articles 3172 and 3173, Vernon’s Say-les’ Texas Civil Statutes, 1914, apply to the case presented by .plaintiff’s' petition, then article 4643, Id., provides for injunctive relief for appellee. Chapter 11, § 50, Acts of the. 29th Legislature, pp, 520-565, provides that: “Á nominee may decline and annul his nomination,” by following the course therein prescribed. This section further likewise provides that in the case of the death of a nominee, the executive committee of the party of which the deceased w,as the nominee may nominate a candidate, and have his name placed on the ticket as the nominee of said party, in lieu of the name of the person so deceased. Certainly this provision, preserved in part in article 3172, supra, has reference not merely to general elections, as contradis-tinguished from primary elections, but also to the substitution of a nomination by the executive committee in place of a nomination by primary election, where the death of the nominee has occurred subsequent to such primary election, and therefore deals with and has reference to the system of primary nominations subsequently provided for in this act.

As a part of said section 50 of this act, and preserved in article 2968 of the Civil Statutes, it is provided that: “No paster shall be used except as herein authorized, and, if otherwise used, -the names pasted shall not be counted.” Thus evidently intending to prohibit the counting of the votes cast for a candidate in the general election who has not been nominated by one’ of the methods provided for, and whose name has been pasted on the ticket. Section 118 of the same act, now preserved in article 3173 of the Statutes, provides:

“No executive committee shall ever (italics the writer’s) have any power of nomination except where a nominee has died or declined the nomination as provided in section 50 of this act.”

It would seem more specific, plainer language could hardly be used to inhibit an executive committee from nominating a candidate except in the case where a nominee has died or declined the nomination.

It is conceded by my Brethren that W. D. Williams was not, at the time of his deplored death, a nominee of the Democratic party in the sense the word is used in this act. Therefore, no such exigency arose as authorized a nomination by the executive committee provided for in section 50 of said act. It is further conceded by Chief Justice Conner that inasmuch as the Legislature has seen fit to enact legislation covering party nominations, and has therein prescribed how such nominations shall be made, and has prohibited their being made except as provided, that injunction may be resorted to to prevent .the doing of some act prejudicial to the rights of a petitioner, which act the law has absolutely forbidden. In this view he is fully sustained by the authorities he. cites, as well as others of equally eminent respectability. It would, in the opinion .of the writer, make no difference if it were in fact (as suggested in the majority opinion) a rule of the Democratic party that the executive committee should nominate a candidate under any other conditions than the two mentioned in the statute. The rules of every party must be circumscribed and limited by the law -as enacted by the Legislature. Certainly, then, it was not incumbent upon the petitioner in this case to contravene in his petition the existence of such inhibited rule.- If, under the statutes and under the Constitution, plaintiff is entitled to make his canvass for this office without having his opponent receive an advantage at the hands of the executive committee, which advantage is not only not provided for by statute, but absolutely prohibited by the enactment of the Legislature, then'it seems to the writer that the injunction would lie, and that the judgment of the trial court should in all things be affirmed.

As is well said by the appellee:

“The rights of a candidate in elections, where 'the procedure is prescribed by law, are legal rights and the question in the instant case goes beyond the mere right to be a candidate and involves the right to be denominated on the official ballot as one who is the legal nominee of the Democratic party.”

It was said in the case of Fletcher v. Tuttle, 151 Ill. 57, 37 N. E. 688, 25 L. R. A. 145, 42 Am. St. Rep. 220, cited and relied on by appellants:

“If a public officer, charged with the political administration, has disobeyed or threatens to disobey the mandate of the law, whether in respect to calling or conducting an election or otherwise, the party injured or threatened with injury in his political rights is not without remedy; but his remedy must be sought in a court of law, and not in a court of chancery.”

Under the blended system of this state, no such distinction between legal and equitable remedies is observed as in the Illinois jurisdiction. Under article 4643, Vernon’s Saylés’ .Texas .Civil Statutes, injunctions may be granted:

“(1) Where it shall appear that the party applying for such writ is entitled to the relief demanded, and such relief or any part thereof requires the restraint of some act prejudicial to the applicant.”

As said in the case of Lane v. Kempner, 184 S. W. 1090-1093:

“These provisions of the statute have been construed in many cases by the courts of this state as giving an applicant, putting himself within their terms, a right to the injunctive relief, irrespective of the existence of a legal remedy at law. It is not a sufficient answer to say that the applicant had a remedy at law, and that he should first be forced to resort to such legal remedy.”

See, also, Sumner v. Crawford, 91 Tex. 129, 41 S. W. 994; Tipton v. Railway Postal Clerks Association et al., 173 S. W. 562; and other cases cited in Lane v. Kempner.

The cases of City of Dallas v. Consolidated Street Ry. Co., 105 Tex. 337, 148 S. W. 292, Harding v. Commissioners’ Court, 95 Tex. 175, 66, S. W. 44, McDonald v. Dyon, 43 Tex. Civ. App. 484, 95 S. W. 67, Walls v. Brundidge, 109 Ark. 250, 160 S. W. 230, Ann. Cas. 1915C, 980, cited by Associate Justice DUNK-DIN in his dissent, do not, in the opinion of the writer, give support to the contention that one who is doing, or threatening to do, an illegal act to the prejudice and injury of .a citizen of this state, may not be enjoined, because, forsooth, such act, actual or threatened, is connected with, or pertains to, the machinery ’Of a political party. In .the first ■cited case the Supreme Court merely held that courts have no power to interfere by injunction with canvassing returns and declaring results of an election on the ground that the regulation sought to be adopted by popular vote was not one which could be enacted, and would, if adopted, interfere with property rights of the complaining party. In this cited case those sought to be enjoined were alleged in plaintiff’s petition to be threatening to pursue the course prescribed by statute, and Mr. Justice Phillips in •discussing the question said:

“Elections belong to the political branch of the government,' and the general rule is that they are beyond the control of the judicial power. The authority resides in the courts to determine their validity, and in cases of invalidity. to protect property rights which may be wrongfully impaired if their result is suffered to become effective and is sought to be enforced; but a proper deference for their respective powers that is imposed upon the several departments of the government, should constrain the courts to caution and certainty when their authority is invoked against the determination of the popular will.”

In City of Austin v. Cemetery Association, 87 Tex. 330, 28 S. W. 528, 47 Am. St. Rep. 114, and Wade v. Nunnelly, 19 Tex. Civ. App. 256, 46 S. W. 668, it was held that an injunction will lie to restrain the enforcement of a void city ordinance, where it is shown that the enforcement of the ordinance would result in irreparable injury to the applicant.

The writer believes the same principle as here contended for by appellee is enunciated in the case of Board of Medical Examiners of Texas v. Taylor, 56 Tex. Civ. App. 291, 120 S. W. 574, where the Texarkana court held that where a State Board of Medical Examiners places such a construction on the law as to deprive a citizen of unquestionable legal right, under circumstances that a citizen has no right to appeal and no other remedy, a court having jurisdiction to issue mandamus may review such determination on such writ. In City of San Antonio v. Routledge, 46 Tex. Civ. App. 196, 102 S. W. 756, it is held that mandamus will lie to compel the performance of an act which the law enjoins as a duty resulting from an office, trust, or situation. With equal force it seems that an officer, person, or official body, threatening to do an act prohibited by law and prejudicial to the rights of another, should be subject to injunction toi restrain the threatened act.

Hereinabove the writer, in the limited time allowed, has sought to express his views, and regrets that the exigencies of the situation do not allow him more time for the investigation of the important questions involved.
      <§urjFar other eases see sanie topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: FLY, C. J.

license: Public Domain

text:
    SAN ANTONIO & A. P. RY. CO. v. MOERBE.
    (No. 5701.)

    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 18, 1916.
    Rehearing Denied Nov. 15, 1916.)
    1. Railboads &wkey;>482(l) — Fires—Damage to Goods — Suw?iciency or Evidence.
    Evidence in an action for the loss of a seed-house, etc., by fire negligently communicated from boarding and lodging cars on defendant’s side track, held sufficient to sustain a verdict for the plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1730; Dec. Dig. &wkey;482(l).]-
    2. Railroads <&wkey;480(2) — Fires—Negligence —Presumption.
    Where the foreman of a railroad was occupying a boarding car in which fire originated, the presumption was, in the absence of testimony tending to sustain a different conclusion, that it began through some act or failure to act on the part of the foreman, or other employés.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 1710, 1733; Dec. Dig. &wkey;480(2).]
    3. Appeal and Error <&wkey;>1050(l) — Harmless Eeeoe — Evidence — Fibes — Actions pob Damages — Joinder oe Insurer.
    In an action against an underwriter’s receiver and a railroad for damages from fire negligently communicated from boarding cars on a side track, evidence that the property had been insured, and evidence as to property not insured, and which was destroyed, introduced while the insurer was a party, and which, after its dismissal, the railroad made no effort to have withdrawn, was not prejudicial to the railroad.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153, 4157; Dec. Dig. <&wkey;1050(l).]
    4. Trial <&wkey;2 — Trying Cases Together.
    In such action, there was no error in hearing the two cases together.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 3-5; Dec. Dig. <&wkey;2.]
    5. Railroads <&wkey;457 — Fires—Negligence.
    Where fire started in boarding cars on a railroad siding which the employés were using in the promotion of the railroad’s business, it was gross negligence for the foreman representing the railroad to fail to make any effort to prevent its spread to plaintiff’s nearby seedhouse and gin-house, whether it was Sunday or not.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1661; Dec. Dig. &wkey;457.]
    6. Appeal and Error &wkey;>882(12) — Right to Allege Error — Invited Error.
    In an action for the destruction of property from fire communicated from boarding cars on defendant’s siding, where the court on defendant’s objection struck out a charge that the burden was on the plaintiff to establish the material issues submitted, any error in such action was invited error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3602; Dec. Dig. <&wkey;>882(12).]
    7. Trial <&wkey;255(10) — Instructions — Re-Q17ES!F«
    In such action, the defendant, if it desired a charge on the burden of proof, should have requested it.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 637; Dec. Dig. &wkey;255(10).]
    8. Trial <&wkey;194(15) — Instructions—Weight op Evidence.
    In an action for the destruction of property by fire communicated from boarding ears on defendant’s siding, defendant’s requested special charges, directly on the weight of the evidence, were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 465; Dec. Dig. <&wkey;194(15).]
    9. Trial =&wkey;252(9) — Instructions—Immaterial Issues.
    In such action, special charges requested by defendant upon immaterial issues and upon matters not raised by the testimony were properly refused.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. § 603; Dec. Dig. &wkey;252(9).]
    10. Railroads &wkey;^457 — Fires—Duty to Prevent Spreading.
    Where a fire started in boarding cars on a railroad’s siding near plaintiff’s seedhouse, the duty to prevent its spread was on the railroad, and not upon the plaintiff.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 1661; Dee. Dig. &wkey;>457.]
    11. Evidence <&wkey;472(4) — Opinion or Conclusion.
    In an action for the destruction of property by fire communicated from boarding cars on defendant’s siding, testimony of a witness as to whether everything was done to save the property was properly excluded, as invading the province of the jury.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2189; Dee. Dig. <@=»472(4).]
    12. Appeal and Error <&wkey;742(l) — Assignments op Error.
    An assignment of error which is not a proposition itself and is not followed by a proposition, and where the objection to the evidence is not shown by the brief, would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. <&wkey;742(l).]
    13. Appeal and Error <&wkey;727 — Assignments op Error — Abstract Error.
    In an action for the destruction of property from fire communicated from boarding cars on defendant’s siding, an assignment of error in the taking of the policy of insurance to the jury room, in the absence of any alleged injury therefrom, was a mere abstraction.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2998, 3010-3024; Dec. Dig. &wkey;727.]
    Appeal from District Court, Fayette County; Frank S. Roberts, Judge. '
    Action by Ben Moerbe against the receiver of the Southwestern Underwriters of San Antonio and the San Antonio & Aransas Pass Railway Company. Judgment dismissing the receiver, and judgment for plaintiff against the defendant Railway Company, and it appeals.
    Affirmed.
    Duncan & Burleson, of La Grange, for appellant. George Willrich, of La Grange, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

Appellee instituted this suit against the receiver of the Southwestern Underwriters of San Antonio and appellant, wherein he sought to recover against them jointly the sum of $2,660, and against appellant alone the sum of $1,120. The suit was’ based on the loss by fire of a certain seed-house, ginhouse, gin stands, press, boiler, and engine which were insured by the underwriters in the sum of $3,000 against fire, and on appellant’s negligence in connection with the destruction of the insured property as well as other property not insured. The Southwestern Underwriters was dismissed from the suit, and the cause as to appellant submitted to a jury on special issues, and on the answers judgment was rendered in favor of appellee for $3,400.

The evidence shows that the fire originated in a car standing on a spur or side track near a seedhouse belonging to appellant. There were several cars on the siding, whieh were being used as lodging and eating places for employés, and the fire started in the car occupied by Richardson, the foreman of appellant, and was communicated from it to the “commissary” car, which was alongside and about five feet from the seed-house. The seedhouse caught from the commissary car, and the ginhouse from the seed-house. The two cars mentioned and the houses were totally destroyed. Although the ear occupied by Richardson caught on fire 20 or more minutes before it reached the commissary car, no effort was made by the foreman or the 30 or 40 employés to move the ears or extinguish the flames. The Richardson car could have been moved and the commissary car and houses saved if the em-ployés had made any effort to move the car. This they failed to do, although requested time and again by Will Hart, a citizen near by, who went to the fire. The property of appellee destroyed by the fire was of the value found by the jury. The evidence fails to disclose any contributory negligence on the part of appellee.

The first, second, and eleventh assignments question the sufficiency of the evidence to sustain the verdict. They are answered by our conclusions of fact. If the evidence of appellee’s witness, Hart, is to be credited, as it undoubtedly was by the jury, appellant’s foreman and employés were grossly negligent in making no attempt to prevent or check the spread of flames arising in a car owned by appellant, standing on a siding in close proximity to appellee’s property. The foreman of appellant was occupying the car in which the fire originated, and he was not put on the stand or his deposition taken to show how the fire started, and the presumption would prevail, in the absence of testimony tending to sustain a different conclusion, that it began through some act or failure to act on the part of the foreman or other employé. Ineffectual efforts were made by parties visiting the fire to obtain assistance in moving the foreman’s car in which the fire had not made much headway at the time, and the commissary car which was not ignited at that time ,and was standing alongside the seedhouse. The commissary car was ignited from the foreman’s car, and if it had been moved out of reach of the flames, the seedhouse might not have caught from the other car. In the case of Railway v. Anderson, 173 S. W. 908, a fire originhted in a boarding car, while standing on a side track, and spread to a farm adjacent thereto and destroyed the grass thereon. There was no positive evidence of negligence in starting the fire, except that it started in the car and appellant did not account for how it started. The Court of Civil Appeals of the Second District held that if appellant was guilty of negligence in permitting the fire to spread from the car to the farm, it would be liable. The Supreme Court refused a writ of error in the case. The decision is well sustained by Texas cases, therein cited.

The third assignment claims error in the court refusing to sustain its plea in abatement for misjoinder of parties and causes of action. The'court did not refuse to sustain the plea in abatement, as appears from the qualification of the bill of exceptions, but the court postponed action on the plea until he heard the evidence, and after the evidence was heard appellee dismissed as to the insurance company. That action fully disposed of any complaint as to misjoinder of causes and parties. The assignment of error is overruled.

The record fails to indicate that evidence prejudicial to appellant was introduced under cover of the presence of the insurance company in the case. The fact that the property had been insured, and that the insurance company had failed, could not have injured appellant. The evidence as to the $1,120 worth of property which was not insured and was destroyed was properly admitted. The insurance company had nothing to do with that property. The issues submitted by the court had no reference to the evidence complained of. The evidence was introduced while the insurance company was a party, and after its dismissal appellant made no effort to have the evidence as to insurance withdrawn from the jury. There was no error in hearing the two cases together. Skipwith v. Hurt, 94 Tex. 322, 60 S. W. 423; Underwriters v. Railway, 31 Tex. Civ. App. 104, 71 S. W. 419.

The fifth, sixth, and seventh assignments of error are overruled. It does not matter whether it was Sunday or not, or whether the servants were employed to extinguish fires or not; it was their duty when a fire started in the property of the master-to use all reasonable means to prevent its spread to the property of others, and it was gross negligence in the foreman, representing appellant, to stand idly by and make no effort to prevent the spread of the fire to ap-' pellee’s seedhouse and ginhouse. The employés were using the cars in the promotion of the master’s business, and they were under as strong obligations to use all reasonable means to prevent the spread of a fire originating in the cars as would be the trainmen of a train from which fire had been communicated to grass or other combustible material on the right of way. In the case of Railway v. Platzer, 73 Tex. 117, 11 S. W. 160, 3 L. R. A. 639, 15 Am. St. Rep. 771, the Supreme Court said:

“Without entering into any discussion as to the degree of care a railway company should use to extinguish a fire caused by the escape of fire from its engines, we feel constrained to hold that the duty does exist however careful such companies may be to prevent the escape of fire from their engines, and that the failure to exercise such care as the circumstances of a given case would indicate to a prudent man was proper, will give cause of action for an injury resulting.”

The negligence would be the same whether the fire originated through negligence or not.

The court had embodied in the charge the following:

“The burden of proof is upon the plaintiff to establish by a fair preponderance of the testimony the material issues submitted.”

This clause was objected to by appellant as follows:

“This defendant excepts to that portion of the charge of the court in the concluding part of his charge, because the same does not properly declare the law applicable to the facts in this case, and no such charge should be given.”

In response to that objection, the court struct that portion of the charge relating to the burden of proof from the charge, and appellant now claims error, through the eighth assignment of error, in the court doing the very thing that it then thought should be done. If it was error, it was clearly invited by appellant. If appellant desired a charge on the burden of proof, it should have requested it.

The ninth and tenth assignments of error are overruled. The special charges requested by appellant were directly on the weight of the evidence, were on immaterial issues and on matters not raised by the testimony. There was no testimony that Jackson was appellee’s watchman, but he swore positively that he was not; this fact, however, is stated in the first charge to have been undisputed. If he had been a watchman there was no evidence of negligence on his part. The second charge attempts to raise an issue not made by the evidence as to the employés in the early morning hours being in the employ of appellant. The attempt to raise the question of comparative negligence was not authorized by the law or the facts. The court submitted every issue fairly raised by the evidence. It did not make any difference whether the fire originated inside or outside the cars; the issue being: Did appellant use any diligence to prevent the spread of the fire from its cars to the property of appellee?

The twelfth and thirteenth assignments of error are disposed of in the consideration of other assignments, and they are overruled. Hart swore positively:

“When I got there, I did not see Richardson or any one of the hands making any effort to put the fire out.”

Will Rives swore:

“I did not see the hands do anything towards trying to save the other property.”

No effort was made to check the fire in the foreman’s car or the commissary car. Some water was carried to the third car which stood north of the commissary car, away from the seedhouse. Neylon, a witness for appellant, testified:

“If I had had charge of that gang, and they had obeyed me, I believe I could have saved that gin. The hands were at work all right, but were working at the wrong end. I never saw Mr. Parvin. If intelligence had had control of those hands there, I believe they could have moved that first car, and have saved the ginhouse and property.”

And yet in the face of this array of testimony it is stated:

“That the employés who were boarding in said cars exercised all reasonable diligence to prevent the spread of the fire.”

The duty to prevent spread of the fire was on appellant in whose property it had started, and not upon appellee.

The fourteenth assignment of error is overruled. The attempt of appellant to have the witness Eversole take the place of the jury and decide as to whether everything was done to save the property was properly frustrated by the court. What the witness would have sworn in answer to the question is not disclosed, but it can be reasonably presumed that he would not have sworn that everything was done “that could be done under the circumstances to save the property,” because he testified that by proper efforts the fire could have been extinguished at its beginning.

The seventeenth assignment is not a proposition in itself, nor is it followed by a proposition. What the objection to the evidence was is not shown by the brief.

It does not appear that the taking of the policy of insurance to the jury room injured appellant, and no such claim is made. The assignment of error raising this point is a mere abstraction. Beeks v. Odom, 70 Tex. 183, 7 S. W. 702. If a bill of exceptions was taken to the action of the court in permitting the policy to be taken to the jury, no reference is made to it in the brief. The eighteenth assignment is overruled.

The judgment is affirmed.
      <g=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      &wkey;>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BUCK, J. BUCK, J.

text:
    FT. WORTH & D. C. RY. CO. v. STATE.

    (No. 8407.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    July 1, 1916.
    Rehearing Denied Oct. 14, 1916.)
    1. Railroads <&wkey;226 — Station Accommodations—Statutes—Construction.
    Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6592, as to station accommodations, requires that reasonably clean and sanitary comfort stations for men and women be maintained only where the railroad maintains a building commonly known as a depot.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. § 740; Dee. Dig. <&wkey;226.]
    2. Railroads &wkey;>226 — Station Accommodations—' ‘Depot.”
    Neither a store building of an individual authorized to sell tickets and handle freight, wherein seats are installed for waiting passengers, nor a box car on trucks from which tickets are sold, and in which passengers wait and freight is stored, is a depot, so as to require installation of comfort stations in accordance with Vernon’s Sayles’ Ann. Civ. St. 1914, art. 6592.
    [Ed. Note.—For other cases, see Railroads, Cent. Dig. § 740; Dec. Dig. <&wkey;>226.
    For other definitions, see Words and Phrases, First and Second Series, Depot.]
    Buck, J., dissenting.

      Appeal from District Court, Montague County; C. F. Spencer, Judge.
    Action by the State against the Ft. Worth & Denver City Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment ordered for defendant.
    John Speer, of Bowie, and Thompson & Barwise and Geo. W. Wharton, all of Ft. Worth, for appellant. Paul Donald, of Montague, and Templeton & Milam, of Ft. Worth, for appellee.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

This suit was filed June 2,1915, by the county attorney of Montague county, to recover penalties aggregating $15,400, for the alleged failure of the defendant railway company to comply with article 6593, Vernon’s Sayles’ Texas Civil Statutes, the petition alleging that for a period from July 1, 1909, until June 1, 1915, 308 weeks, defendant “maintained and kept a passenger depot building on its line of railway at the town of Fruitland; that within a reasonable and convenient distance from its said depot building, during all of said time, appellant had maintained water-closets for the accommodation of its passengers, and of its patrons and employes at such depot building; that it had, continuously during said time, a train schedule by which passenger trains regularly stopped at Fruitland in the nighttime, to take on and to discharge passengers, and that during that time its passenger trains were stopped at night at Fruitland for passengers; that during all of said time appellant had wholly failed, neglected, and refused to keep said water-closets and depot grounds adjacent thereto well lighted at such hours in the nighttime as its passengers and patrons at such station had occasion to be at the same, for the purpose of taking passage on the trains, or waiting for the arrival thereof, or after leaving the same, for at least 30 minutes before the schedule time for the arrival of said trains, and after the arrival thereof, wherefore appellant had become indebted to appellee in penalties, under the act of the Thirty-First Legislature of the state of Texas, in the sum of $50 for each of the 308 weeks mentioned, amounting in all to the sum of $15,400.” Defendant answered by general demurrer and various exceptions, by general denial, by a plea to the constitutionality of the act upon which the suit of plaintiff was based, by a plea that the defendant was engaged in interstate transportation of passengers, and therefore was not amenable to the act mentioned, and by the further plea that for a greater portion of the time mentioned, it had kept the water-closets at said station well lighted and “sufficiently so to enable any and all persons who desired to use same to do so.” The case was tried with a jury, and from a verdict and judgment in favor of the plaintiff in the sum of $15,000, the defendant appeals.

The evidence shows that for a period beginning prior to July 1, 1909, and ending about September 25, 1912, there was located on defendant railway company’s grounds, and about 10 or 15 feet from the center of the track, a building used by J. T. Reeser, and after his death by his son-in-law, F. F. Green, and his two sons, Paul and John Reeser, for the purpose of conducting a mercantile business. While the land upon which the building was situated was owned by the railway company, the building was owned by Reeser and his heirs until the date of the fire. On this building and above the door Reeser placed, at the suggestion of the railway company, a sign furnished by it and reading, “Fruit-land.” J. T. Reeser, and later his two sons, John and Paul, in succession, were employed by the railway company to sell tickets, though it was not shown that they had authority to sell, or in fact ever did sell, a ticket beyond the state line. The railway company furnished such employé with a cap, to be worn while in the discharge of the railway company’s business, with the name, “Agent,” on the front thereof. Letters and other communications from the railway company to such person in charge were addressed to the “Agent at Fruitland.” It was shown that such person, whom we will hereafter call “agent,” was authorized by the railway company to receive freight for shipment, but was not authorized to make out bills of lading therefor, but that the shipper received from such agent a receipt for the goods delivered to the railway company and a blank bill of lading filled out with the description of the goods, to be signed by the agent of the railway company at Bowie or Sunset, according to whether the goods were being shipped north or south; that the agent, though not especially authorized so to do, did, in fact, receive and take care of some goods shipped to Fruitland, consisting principally of household furniture and of goods shipped to the agent himself, as a merchant. The agent received as compensation transportation for himself and perhaps his family, and the sum of $1 per month. The agent was also the representative of the Adams Express Company which shipped goods over defendant’s railway. In this store was the post office and for part of the time a barber shop. It was shown that the main .purpose of Ree-ser and others in securing the right to sell tickets for the railway company was the effect it would have in bringing trade to the store. There were placed in the front of the store settees or chairs for passengers waiting for, or disembarking from, trains. The store was painted the same color as other depots of defendant railway company by painters employed by the railway company to paint their depots generally, but the owner of the store paid for such work. The receipts from the sale of tickets during the period covered by the suit ran from $35 to $80 per month, or an average of $57.50, but the evidence fails to show any specific instance of a sale of tickets for tlie midnight train, or what proportion of the average proceeds mentioned arose from sales for the night trains. Fruit-land is a village of some 50 to 75 inhabitants within a radius of a half mile from the station, and the freight business is light. During a part of the period mentioned there were two stores, a blacksmith shop, two churches, and a Woodmen hall. Later one of the stores and the blacksmith shop were discontinued.

In November, 1912, after the store was burned, a .box car was placed on the side track where tickets were sold, and such freight as was offered for shipment and could be placed therein, was stored. Seats were also placed therein for the accommodation of the public while waiting for trains. In the latter part of 1914, the railway company removed the trucks from under the box car, and continued to use it for the purposes here-inabove set out up to the time of the suit.

Prior to the burning of the store, passengers desiring to purchase tickets at night, or to take the train, there being one night train each way, stopping on signal, or to discharge passengers having tickets for Fruitland, were accustomed to go to the agent’s house and inform him of their desire. Ordinarily they waited for trains either at the agent’s house, or at the house of some neighbor, up to SO minutes before train time, when the agent would open up his place of business. The water-closets were some 300 feet in front of and south of the store, and when the store was open a lamp was ordinarily placed on the counter, and the light therefrom, shining through the door, would extend out towards the closets, but no lights were placed in or near the closets during any of the time in controversy. During the entire period from July 1, 1909, to the date of the suit, no one ever asked the privilege of using the toilets at night, or made any complaint that they were not properly lighted.

We believe the foregoing is a fair statement of the facts developed on the trial, and is sufficient for the purposes of this opinion, and will so be considered, unless it shall appear further in the course of the opinion necessary to note other evidence.

Appellant urges in a group of kindred assignments: First. That the evidence is insufficient to show that it maintained a depot at Fruitland: (a) From July 1, 1909, to September 25, 1912; (b) during the period when the box car used as a place for selling tickets was on wheels; and (c) during the' time after the trucks were removed therefrom. Second. By another group of assignments, that the act of the Legislature under which this suit was brought is in violation of the Fourteénth Amendment to the United States Constitution, in that it is an effort to deprive the defendant of its property without due process of law, and to deny it the equal protection of the law. Third. By another group of assignments, that said act is void because too vague and indefinite, and because it gives no reasonable rule or standard by which a railway company could know when it had furnished a well-lighted water-closet, and adjacent depot grounds. Appellee cites, in support of the contention urged in this group, State v. T. & N. O. Ry. Co., 103 S. W. 653, M., K. & T. Ry. Co. v. State, 100 Tex. 420, 100 S. W. 766, and other cases.

In' construing article 6592, Vernon's Sayles’ Texas Civil Statutes, requiring railroads and railway corporations to maintain and keep reasonably clean and sanitary suitable and separate water-closets for both male and female persons at each passenger station on its line of railway, either within its passenger depot, or in connection therewith, etc., it was held, and we think properly so, by the Court of Civil Appeals for the First District, in State v. Jasper & E. R. Co., 154 S. W. 331, that such act only requires the erection and maintenance of toilets by railroads at stations where it has constructed and maintains a building, commonly known as a “depot,” for the accommodation and protection of passengers received and discharged thereat, and does not require such maintenance at way and flag stations where no depot or building has been erected.

Therefore, in consideration of the questions raised by appellant’s first group of assignments, we must determine whether or not the use by the railway company of either of the structures from which tickets were sold during the period covered by this suit was in the contemplation of the statute, a depot. In Railway Co. v. Smith, 71 Ark. 189, 71 S. W. 947, it is said:

“The term ‘depot’ usually includes, not only the idea of a stopping place [for trains], hut also that of a building, or something of the' kind, for the protection and convenience of passengers and freight.”

In Karnes v. Drake, 103 Ky. 134, 44 S. W. 444, it is said:

“When we speak of a depot at a railroad, we mean a building which is used for the accommodation ánd protection of railway passengers or freight.”

Other definitions of similar import are found in State v. Edwards, 109 Mo. 315, 19 S. W. 91; Railway Co. v. State, 61 Ark. 9, 31 S. W. 570; Maghee v. Camden, etc., Transp. Co., 45 N. Y. 520, 6 Am. Rep. 124; State v. New Haven & N. Co., 37 Conn. 163; Plunkett v. Minneapolis, etc., Ry. Co., 79 Wis. 222, 48 N. W. 519; Fowler v. Loan & Trust Co., 21 Wis. 79; L. & N. Ry. Co. v. Commonwealth, 33 S. W. 939, 17 Ky. Law Rep. 1136.

In State v. T. & P. Ry. Co., 173 S. W. 900, the Court of Civil Appeals for the Dallas District, held, in construing article 6592, supra, that said article applied only to stations where a building is erected for the protection and accommodation of passengers and freight, and that it did not apply to the place where trains stopped for passengers, but where no building of any kind for passengers or freight is maintained, though the merchant near such stopping place was authorized to sell tickets;1 as a “depot,” in the usual and recognized meaning of the word, which the Legislature must have intended, is a building for the accommodation and protection of passengers and freight. In that case the company having no agent at Crow, in Wood county, the merchant applied to it for permission to sell tickets over the road, which was granted, and he was furnished tickets, which he kept ini his storehouse, where the post office was also kept, and for selling tickets he was allowed a commission which amounted .on an average to $10 per month; the sales amounting to about $100 per month. The road did not have any interest in the building, nor did it furnish any place for selling the tickets, nor any accommodation in the building for outgoing or incoming passengers. The merchant procured the right to sell tickets for the purpose of drawing trade for his mercantile business. ■Crow was a prepaid station for freight, and the merchant handled none, except his own, or in particular instances for accommodation when he was requested by parties to look after it. The railway company furnished him with blank bills of lading, but he was not authorized to sign them, but would furnish parties with one who wished to fill them out and get them signed at the next station. The merchant owned two privies, one about 300 feet from his store, and the other in his residence near his store, which parties were permitted to use when request was made therefor. Ladies waiting for a train generally went to his house to call on his wife.

The facts in the cited case are very similar to the facts in the ’ case at bar, probably the only distinguishing feature being that in the instant case the building used was on the railway company’s grounds, while in the cited case it apparently 'was not.

In Ry. Co. v. State, 61 Ark. 9, 31 S. W. 570, in a suit involving the construction of a statute requiring railway companies to provide separate waiting rooms for the1 white and African passengers in all of the passenger depots, it was held by the Supreme Court of Arkansas that a store on a railroad company’s right of way where railroad tickets were sold, and which was resorted to by passengers while waiting for the cars, and over which the company had no control, was not a passenger depot within the meaning of the article. See, also, State v. B. & O. R. R. Co., 61 W. Va. 367, 56 S. E. 518; St. L., I. M. & S. Ry. Co. v. Berry, 86 Ark. 309, 110 S. W. 1049; Land v. Wilmington & W. R. Co., 104 N. C. 48, 10 S. E. 80.

The majority, at least, are of the opinion that in the use of the building on its grounds for the purposes indicated from July 1, 1909, to September 25, 1912, the railway company did not maintain a depot in the sense in which the word is used in articles 6592 and 6593, and therefore that it cannot be held liable for a failure to keep well lighted the water-closets near to said building and used in connection therewith. They are further of the opinion that1 in the use of the box car on wheels the railway company did not maintain a “depot,” in the sense in which the word is used in said articles. St. L., I. M. & S. Ry. Co. v. Berry, 86 Ark. 309, 110 S. W. 1049; R. R. Co. v. Smith, 71 Ark. 189, 71 S. W. 947. Therefore the majority hold that no recovery can be had for the time the box car used as a place for selling tickets was on trucks. They are of the opinion that while said car was temporarily used as a place for selling tickets, yet it was a part of the rolling stock of the company, and in no sense does it measure up to the requirements of the word,- “depot,” as defined in Railroad Co. v. Smith, supra. As was said in that case:

“A ‘box car’ is not a building. The latter implies a permanent structure, and not a part of the rolling stock of the company, which may be moved at will along the line of the. railroad. We think that the word ‘depot,’ as used in the deed, was intended to mean a permanent structure of some kind to be used as a receptacle for freight and passengers, and was to be of the kind the railway company erected at similar stations along its line of railway.”

As to the use of the box car after it was taken from its trucks, covering a period from the latter part of 1914 until June 1, 1915, both Chief Justice Conner and Associate Justicé Dunklin believe that the railway company should not be held liable for the penalties claimed. Justice Dunklin is of the opinion that in the light of the authorities cited and others to the same effect, such a structure could not be held to be a depot in the sense used in this statute. He is of the opinion, further, that as the earnings of the company from the maintenance of the depot in question were of insubstantial amount; as all public officers charged with the duty of enforcing the statute, as well as the public generally, by their silence acquiesced in the belief, apparently entertained by appellant in good faith, that there had been no infraction of the statute; as the depot was not used to such , an extent as even to suggest that the failure of appellant to maintain the lights contemplated by the statute caused any damages or inconvenience to any one for whose benefit it was enacted, and as the punishment of $15,000 appears, under all the circumstances, to be extremely severe— the case calls strongly for the application of the rule announced in Sutherland on Statutory ' Construction, §§ 208, 347, that penal statutes, fixing penalties designed to enforce their observance and not as reparation to any party that may be injured by their violation, must be strictly construed, and the more severe the penalty, the more strict the construction. He is of the opinion, further, that as the use made of the box ear at the station is the only basis for the contention that it was a depot building within the meaning of articles 6592 and 6593 of our statutes, and as no one could contend that the car, either with or without trucks, was such a building before it was applied to that use, there is no more reason for holding that by such use, as a mere makeshift, the car was metamorphosed into a depot building than there would be for holding that a flat car, or a depot platform, or even a discarded locomotive, would likewise become such a building if applied to the same uses. And, further still, he is of the opinion that as those statutes do not specifically provide that a storehouse belonging to another and used by him as Reeser and his sons used the store in the present suit, or a box car used as the car in question was used by the railway company, shall be considered as a depot building, within the meaning of the statutes, and that as the question whether or not such is their meaning is one of construction, governed by the general law of statutory construction, the reasons advanced in the decision of the Supreme Court of the United States in the case of S. W. Tel. & Tel. Co. v. Danaher, 238 U. S. 482, 35 Sup. Ct. 886, 59 L. Ed. 1419, L. R. A. 1916A, 1208, for holding that the judgment of the trial court in that case should not be enforced apply with full force in the present case, in which the judgment complained of is even more oppressive and severe; and that it would be unreasonable to suppose that in enacting those statutes, the Legislature ever intended that they should be given such a construction.

Chief Justice Conner, while in some doubt as to whether or not the structure last mentioned should be deemed a depot, in the sense in which it is used in the statute, yet is of the opinion that, by reason of the long acquiescence, or' implied acquiescence, on the part of the state and its representatives in Montague county in the conclusion evidently reached by the railway company that such a structure was not a depot, and the reliance thereon by the railway company in good faith, and, in view of the somewhat diverse holdings by the appellate courts as to the construction of the kindred statute (article 6592, Vernon’s Sayles’ Texas Civil Statutes), it having been held, in State v. T. & N. O. Ry. Co., 103 S. W. 653, and M., K. & T. Ry. Co. v. State, 100 Tex. 420, 100 S. W. 766, violative of the Fourteenth Amendment to the United States Constitution, though its constitutionality was later in effect sustained, that it would be oppressive and in effect violative of the Fifth and Fourteenth Amendments to the United States Constitution to permit such a large recovery against the railway company in this case under the circumstances stated and covering the period of the state’s acquiescence. In this particular, as he considers, there is ground for an application of the view presented in S. W. Tel. & Tel. Co. v. Danaher, 238 U. S. 482, 35 Sup. Ct. 886, 59 L. Ed. 1419, L. R. A. 1916A, 1208. In the cited ca«e the plaintiff sued the defendant telephone company for alleged discrimination against her and the refusal to furnish her with telephone service, except upon certain alleged unreasonable conditions. The recovery in the trial court was sustained by the Supreme Court of Arkansas, and an appeal was taken to the Supreme Court of the United States. Justice Van Devanter delivered the opinion for the latter court. After stating that the state Supreme Court held that the statute, under which the suit was brought, was constitutional, and the regulation and requirement of the defendant company as a prerequisite to furnishing plaintiff with the desired service was unreasonable, and its enforcement against the plaintiff was a discrimination against her, and that upon this construction of the statute the holding of the state Supreme Court was binding upon the United States Supreme Court,. yet it was further held that, inasmuch as the state Legislature had not declared such a regulation on the part of the defendant company unreasonable, and as in good faith the company had adopted and promulgated the rule and required observance of it on the part of its patrons, and was guilty of no intentional wrongdoing, and no departure from any prescribed or known standard of action and no reckless conduct, to inflict upon it the heavy penalty recovered in the suit ($6,300) was plainly arbitrary and oppressive, and in violation of the Fourteenth Amendment prohibiting the taking of property without due process of law. Therefore the majority conclude that the judgment should be reversed and judgment be here rendered for appellant; that plaintiff take nothing by reason of its suit

The writer does not agree with some of the conclusions reached by his Brethren; but, owing to the nearness of the end of this' term of court, and the press of other work, will not here attempt to enter the reasons for his dissent, but will later file them.

Judgment reversed, and here rendered for appellant.

BUCK, J.

(dissenting). As indicated in the majority opinion, the writer is unable to entirely agree with some of the conclusions reached by the majority. He will here briefly note the grounds of his dissent. He recognizes the severity of the penalty which the trial court’s judgment visits upon the railway company for its alleged failure to comply with the statutory requirements, yet if it can be reasonably said that the appellant company disregarded the plain provisions of the law, it cannot be relieved of the consequences thereof simply because they are onerous. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 29 Sup. Ct. 220, 53 L. Ed. 417, 430.

The writer is unable to avoid the conclusion that in the use by the railway company of the storehouse it maintained a “depot,” in the sense in which the word is used in the statute under which this action is brought. The fact that the railway company' did not own the ground upon which the building stood, it seems to the writer, would not affect the duty of the' appellant to comply with the law. As he sees it, the railway company might own the building and lease the ground, or rent the building and own the land,’ or own both, or lease both, and yet “maintain a depot,” if the structure was a building used by such company as a place provided by it for the protection and convenience of its passengers. It is commonly known that railroad companies, owning their depots in cities, let parts of their buildings to express companies, to news companies, to the postal department of the United States government, and for other purposes not directly connected with the railway service, and yet the portions of such buildings used strictly for the protection and convenience of their passengers are none the less depots.

The evident purpose of' the act under consideration was to provide for the accommodation of employés in and around the depots and of passengers while waiting for trains, or after disembarking therefrom. Therefore it certainly was not contemplated by the Legislature that a railroad could, with impunity, avoid the prescribed duty by renting a building rather than owning it, or by securing a building for depot purposes, not owned by the railroad, and for which no money rent was paid. Without reference to where the title to a building or to the ground upon which it was erected might be vested, the question to be determined is, Was the railway company maintaining a depot?

“It.is unquestionably a fundamental canon of construction that such interpretation shall be given to acts of the Legislature as will effectuate the intent and purpose of the lawmakers in their enactments, when the intent of the law is plain and obvious, rather than to follow its literal import or a mere grammatical construction” Ellis County v. Thompson, 95 Tex. 32, 64 S. W. 927, 66 S. W. 48.

In Russell v. Farquhar, 55 Tex. 359, Judge Moore uses the following language:

“While it is for the Legislature to make the law, it is the duty of the courts to ‘try out the right intendment’ of statutes upon which they are called to pass, and by their proper construction to ascertain and enforce them according to their true intent For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence or otherwise by the Legislature to express its intent, and to follow which would pervert that intent.”

In 2 Lewis Sutherland’s Stat. Const. (2d Ed.) § 347, the author says:

“It is indispensable to the correct understanding of a statute to inquire: First, what is the subject of it; what object is intended to be accomplished by it? When the subject-matter is once clearly ascertained and its general intent, a key is found to all its intricacies; general words may be restrained to it, and those of narrower import may be expanded to embrace it to effectuate that intent. When the intention can be collected from the statute, words may be modified,- altered, or supplied so as to obviate any repugnancy or inconsistency to such intention.”

See, also, Hill & Morris v. Railway Co., 75 S. W. 874; State v. Railway Co., 37 Conn. 153; Railway Co. v. Thornsberry, 17 S. W. 521.

With these fundamental principles governing statutory construction in mind, it is difficult for the writer to see that the duty and relationship of the railway company to its employés and passengers employed in and frequenting the building used at Fruit-land as a depot, would in any way be affected by the fact that the railway company did not own the building, used, in part at least, by it for railway and depot purposes. It had constructed closets, thereby evidently recognizing the need therefor; the building was used by the passenger public practically in the same way and to the same extent that it would have been used if it had been occupied only for railway purposes. The agents of the railway company were none the less employés, for whose benefit in part the statute was enacted, because the money consideration or salary paid them was nominal. The benefits accruing to such agents were none the less real and substantial because they did not come in the form of a salary. The right to have the storehouse building placed upon the railway company’s ground was a valuable, if not an expressed, consideration. The writer thinks the case at bar is distinguishable from the Crow Case, 173 S. W. 900, cited in the majority opinion, in several respects, at least: (1) In the Crow Case, the railway company did not own or furnish the ground upon which the storehouse was located; (2) in this case the building was located 10 or 15 feet from the center of the track, while in the cited case the house was located 76-feet from the track, and off the right of way; (3) in the instant case the sign “Fruitland” was furnished by the railway company, in the cited case the sign, “Railroad Ticket Office,” was placed over the front door of the store by Greer himself; (4) in the instant case the railway company furnished the closets, while in the cited case such closets as there were, were furnished by Greer, and were, inferentially, the closets used by him in connection with his business and in his home prior to the time that he secured the right to sell tickets for the railway company. These differences, though, perhaps, slight in any one instance, when taken together, may reasonably be sufficient to have justified the trial court in holding, in the instant ease, that the building was a depot used for railway purposes by the railway itself, and in the cited case that it was not.

While the writer is not thoroughly convinced that the box car, either with or without trucks, was a depot in the sense the word is used in the statute, yet he does not think that the Berry Case, cited in the majority opinion, is sufficient authority for holding that it was not. In concluding in the Berry Case that a box car was not a depot, the Supreme Court of Arkansas had under consideration the question whether the placing of a box car on a side track, and at which freight was received and cars stopped when flagged, was a compliance by the railway company with a stipulation in the deed that it would put a “depot on the land.” Berry was part owner of a large tract of land along the railway company’s right of way, and in part consideration for the conveyance to the railway company of a right of way, including siding, depot grounds, etc., through his land, he stipulated that the railway company should erect a depot. In the sense in which the word was used in the deed, and in consideration of the evident purpose of the grantor in making a stipulation, the expectation of the consequent enhancement in value of his lands and the convenience to those living and working thereon, the writer believes that the court correctly held as it did. But he is not so certain that in the instant case the same construction should follow.

Without extending these remarks further, the writer respectfully enters his dissent, believing that the state was entitled to recover the statutory penalty for the period beginning July 1, 1909, to September 25, 1912, when the depot or storehouse was burned, and that at most the judgment should be reformed so as to allow recovery only for the period mentioned.
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author: DAVIDSON, J. PRENDERGAST, P. J., and HARPER, J.

text:
    RENFRO v. STATE.
    (No. 4176.)
    (Court of Criminal Appeals of Texas.
    Oct. 25, 1916.)
    Cbiminal Law <S=»872% — Veedict by Less than Twelve Jubobs — Misdemeanoe Oase —Statute.
    Under Const, art. 5, § 13, and Code Or. Proe. 1911, art. 765, relative to verdict in misdemeanor cases by less than 12 jurors, in a prosecution for a misdemeanor, where the jury was composed of 12 men, only 11 of whom signed the verdict, one not agreeing to the conviction, judgment of conviction could not stand, the district court being without authority to receive a verdict of less than 12 jurors in misdemeanor cases, except where one or more of the jurors have been discharged after the cause has been submitted to them, if there be as many as nine remaining, as the statute, pursuant to constitutional authority, provides.
    [Ed. Note. — For other cases, see Criminal Law, Dec. Dig. <®=»872%.]
    Appeal from Criminal District Court, Dallas County; Robt. B. Seay, Judge.
    Salty Renfro was convicted of keeping a disorderly house, and he appeals.
    Judgment reversed, and cause remanded.
    El. J. Gibson, of Dallas, for appellant. C. C. McDonald, Asst. Atty. Gen., for the State.
   DAVIDSON, J.

Appellant was convicted for unlawfully and knowingly permitting to be kept a disorderly house; his punishment being assessed at a fine of $200 and 20 days imprisonment in the county jail.

There are quite a number of questions suggested in bills of exception why this judgment should be reversed. Two of them are stressed in the brief. The case was tried in one of the criminal district courts of Dallas county, which seems to have jurisdiction, under the act of the Legislature, to try misdemeanors.

The jury was composed of 12 men. The judgment shows -that 10 of the 12 signed the verdict. The record seems however, independent of the judgment, to show that 11 of the jurors ■ signed the verdict. One of the jurors not only did not sign the verdict, but refused, and would not agree to the conviction. The contention of appellant is that this was error, and we believe his contention is sound. The Constitution (article 5, § 13) provides:

“ * * * In trials of civil cases, and in trials of criminal cases below the grade of felony in the district courts, nine members of the jury concurring may render a verdict, but when the verdict shall be rendered by less than the whole number, it shall be signed by every member of the jury concurring in it. When, pending the trial of any case, one or more jurors, not exceeding three, may die, or be disabled from sitting, the remainder of the jury shall have the power to render the verdict: Provided, that the Legislature may change or modify the rule authorizing less than the whole number of the jury to render a verdict.”

This provision of the Constitution took immediate effect, legislation not being necessary. It authorized a verdict by nine jurors subject to be changed by the Legislature. IF is apparent from reading the Constitution that the Legislature was empowered to change or modify the rule therein set out in regard to this particular matter. This was also held in Bowen v. Davis, 48 Tex. 101. The act of the Legislature with reference to this matter is article 765 of the Code of Criminal Procedure, as follows:

“In cases of misdemeanor, in the district court, where one or more of the jurors have been discharged from serving after the cause has been submitted to them, if there be as many as nine of the jurors remaining, those remaining may render and return a verdict; but, in such case, the verdict must be signed by each one of the jurors rendering it.”

So it will be seen from this statute that, in order for less than 12 jurors to return a verdict, not more than 3 must be discharged from serving after the case has been submitted to them, provided, of course,'' it cannot be reduced below 9. There must be a discharge, and this discharge must be subsequent to the time the case is submitted to the jury. Article 758 of the Code of Criminal Procedure bears upon this question, and reads as follows:

“In a misdemeanor case, in the district court, if nine of the jury can be kept together, they shall not be discharged; but, if more than three of the twelve are discharged, the entire jury must be discharged.”

The Legislature having express authority to enact these statutes, they are, of course, constitutional. It is unnecessary here to discuss the question what would be a sufficient ground for the discharge of one or more of the jurors under the circumstances provided by the Constitution and the statute. It must be a legal ground and such as authorizes the court to discharge the juror. The law provides there must be. 12 jurors in the district court in misdemeanor cases. .There were 12 in the case in hand. None of them were discharged. Ten or 11 of them agreed to a verdict. The twelfth refused to coincide. Under the Constitution and the statute there is no authority in the district court to receive a verdict of less than 12 jurors in misdemeanors, except under the circumstances therein stated. While the jury remains intact with the full complement the verdict must be by the 12. If for legal cause one or as many as 3 are discharged, the remainder may render a verdict. We have found no authority, and none has been pointed out to us, where the court can receive a verdict in the district court in a misdemeanor case with less than the verdict of a full jury, all of them being present. Without discussing this matter further, we are of opinion that the action of the trial court was error for which this judgment must be reversed.

It is contended that the evidence is not sufficient to support the conviction. The writer is of opinion this position is sound. There are several counts in the indictment. The state proved the bad reputation of the house and the bad reputation of some of the inmates. Appellant’s wife at one time, it seems, had been in bad repute for chastity. There were two or three women in the house whose reputation was bad, and had before this been lewd women, and their reputation was still bad. They had lived in a different part of Dallas. They were friends of appellant’s wife. After he and his wife married they moved to a different part of the city of .Dallas and rented a house. These women went to appellant’s house and were staying there or boarding there; at least they were in the house. The record shows that one of the women had not heretofore lived under suspicious circumstances, but had been seduced and given birth to a child, and she was at this house with this child.’ The evidence, as the writer understands this record, does not show that these women committed any act of lewdness at the place where appellant lived. A witness testifies that he was there on two or three occasions and was served with beer, and that when the beer was brought in from the dining room he would see a dollar on the table in the dining room, though he was in a different room. He saw nobody put the dollar at the place designated, and does not know that any beer was paid for when he was there; and he testified that he saw no one pay any money to anybody for the beer. This is the only witness who testifies anything with reference to any sale of intoxicants. Reputation alone is not sufficient to justify a conviction under the bawdyhouse statute. *There must be something in addition to, that which shows the inmates of the house were carrying on the business of prostitution, or were having sexual intercourse.

As these are the two questions presented by the brief, we have discussed those. The evidence took a very wide range, running back over the lives of these women for a long while and prior to the time they moved to appellant’s house. The writer is of opinion that the exceptions taken to some of this testimony should have been sustained. If these women had been lewd heretofore and had left the part of town where they carried on such business and gone to a different part of it, they ought not to be held guilty unless it be shown they were still plying their vocation. There ought to be some act showing they were still lewd women. They may not have reformed, and they may be still lewd women, but there ought to be some evidence to show that fact; reputation is not alone sufficient. That reputation seems to have been based very largely on the fact of their previous bad conduct. Whether the writer is correct or not in this matter, there ought to be some evidence of the fact that they were engaged in that business. While reputation may be proved as authorized by the statute, still reputation is not enough to make out a case or overcome the presumption of innocence and reasonable doubt; there must be some fact independent of reputation going to prove the state’s case.

The judgment is reversed, and the cause remanded.

PRENDERGAST, P. J., and HARPER, J.

We concur on the first question decided, but express no opinion on the second question wherein Judge DAVIDSON expresses his individual views.
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