text:
    RICH v. EASON et al.
    (No. 25.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 11, 1915.)
    Libel and Slandeb <5&wkey;38' — Pkivileged Communications — Geand Jubobs.
    As the law defining the duties of the grand jury does not authorize that body to make reports concerning the moral character or fitness of officers, a report by the grand jury, questioning the moral fitness of the sheriff, but not presenting any indictment against him for crime, is not privileged.
    [Ed. Note. — For other cases, see Libel and Slander, Cent. Dig. §§ 117-123; Dec. Dig.
    Appeal from District Court, Nacogdoches County; L. D. Guinn, Judge.
    Action by H. C. Rich against George W. Eason, and others. From a judgment for defendants plaintiff appeals.
    Reversed and remanded.
    George F. Ingraham, of Nacogdoches, for appellant. Blount & Strong and S. M. Adams, all of Nacogdoches, for appellees.
   BROOKE, J.

It was agreed that the following is a correct statement of the ease, and the result of the suit: The appellees were impaneled as the grand jury for Nacog-doches county, Tex., at the fall term, 1914, of the district court of that county. Appellant was sheriff of the county at that time, his term expiring in November thereafter. He was serving his second term. Appellee, after looking into the offenses committed, on the 8th day of October, reported to the court in writing that they had so done. Their report consisted of seven sections, and is attached to the amended petition. The first section is about returning bills of indictment; the second recommending the appointment of a finance committee; the third is a eulogy on the educational interests of Nacogdoches county. The fourth is:

“We find, after our deliberations, that the peace and dignity of our county is good and worthy of special mention, that crime is abating, and the peace and quiet of our homes reflect a happy condition of morals and society.”

The fifth is:

“We show to your honor that we have personally inspected the county jail, and find that it is comparatively well kept, and is in a sanitary condition, and those confined therein should have no grounds for complaint.”

The sixth is:

“JVe regret exceedingly that it becomes our duty to report to your honor that we have been apprised of the fact that the sheriff’s office, Constable precinct No. 1, and marshal of the city of Nacogdoches, are guilty of immoral conduct unbecoming the dignity of their exalted position. We make this report that public may have the benefit of our investigations, and may be able to avoid the election of officers in the future, who may become derelict of their moral obligations to the people who elect them.”

The seventh is thanks to the district court and the district and county attorneys. Appellant alleges averments of the meaning and effect and intention of sections 4, 5, and 6. The report was filed by each of appellees individually. Appellant filed this suit against them for libel on the 80th day of October, 1914, and filed his amended petition, upon which the case was submitted, suing- for $10,-000 actual and $10,000 exemplary damages, basing his suit upon sections 4, 5, and 6 of said report, and principally upon paragraph 6 thereof. Appellees answered, filing their amended answer on February 11, 1915, consisting of demurrers, denials, plea of good faith, and the truth of the report. Appellant files his supplemental petition, consisting of demurrers and denial of the truth of said report. On February 15, 1915, all parties being present, the case was heard on special exception of appellee to the petition and the report attached thereto, and nothing else, that the report was a privileged communication, upon which a suit for libel could not be based. The court sustained the special demurrer, and adjudged that the report was a privileged communication, and could not be made the basis of a suit for libel. Appellant declined to amend. The court dismissed the case, to which judgment of the court, the appellant excepted, and gave notice of appeal to the Court of Civil Appeals at. Galveston, which said case has been transferred to this court for consideration.

Appellant assails, by his first assignment of error, the action of the court in sustaining the demurrer to plaintiff’s petition, and in holding that the report of the grand jury was a privileged matter upon which a suit cannot be based, and in dismissing the case. The articles in our criminal procedure which define the duties of the grand jury are silent with respect to any report, such as is alleged to have been made with reference to the misconduct or moral character of the appellant, as claimed in this case. We are cited to a number of authorities by the briefs of both appellant and appellee. We have carefully read the same, but are frank to say that the same do not reflect much light upon the real issue in this case. We have -failed to find any case reported in our state, and therefore we are relegated to the text-writers and to the decisions of the other states. An eminent authority, writing upon this proposition, says:

“A privileged communication is a communication which, under ordinary circumstances, would be defamatory, made to another in pursuance of a duty, political, judicial, social, or personal, so that an action for libel or slander will not lie, though the statement may be false, unless in the two last cases actual malice be proved in addition.”

Continuing,, the writer says:

“The great underlying principle upon which the doctrine of privileged communications rests is public policy. This is more especially the case with absolute privilege, where the interests and necessities of society, require that the time and occasion of a publication or utterance, even though it be both false and malicious, shall protect the defamer from all liability to ¡prosecution for the sake of the public good. It rests upon the same necessity that requires the individual to surrender his personal rights and to suffer loss for the benefit of the common welfare. Happily for the citizens, this class of privilege is restrained to narrow and well-defined lines. Confined privilege exists in much larger numbers of cases. It extends to all communications made bona fide upon any subject-matter in which the party communicating has an interest, or in reference to which he has a duty, to a person having a corresponding interest or duty; and the privilege embraces cases where the duty is not a legal one, but where it is of a moral or social character of imperfect obligation. The occasion on which the communication was made rebuts the inference of malice prima facie arising from a statement prejudicial to the character of the plaintiff, and puts upon him the burden of proving that there was malice. In short, that the defendant was actuated by motives of personal spite or ill will, independent of the occasion on which the communication was made.” Newell on Slander & Libel, §§ 492, 493.

The same writer, above quoted, says:

“In the less important matters, however, the interests and welfare of the public do not demand that the speaker should be freed from .all responsibility, but merely require that he should be protected so far as he is speaking honestly for the common good. In these cases the privilege is said not to be absolute, but qualified; and a party defamed may recover damages, notwithstanding the privilege, if he can prove that the words were not used in good faith, but that the party availed himself of the occasion willfully and knowingly for the purpose of defaming the plaintiff. In this class of cases it will be convenient to divide the occasions into four classes: (1) Where the circumstances of the occasion cast upon the defendant the duty of making a communication to a certain other person to whom he makes such communication in the bona fide performance of such duty; (2) statements made for protection of private interests ; (8) where the defendant has an interest in the subject-matter of the communication, and the person to whom he communicates it has a corresponding interest1; (4) reports of the proceedings of courts of justice and legislative bodies.”

Continuing, tlie writer says:

“In those cases where the circumstances of the occasion cast upon a party the duty of making a communication, the duty may be either one which the party owes to society, or one which he owes to himself or his family. Communications made in pursuance of the duty owed to society are: (1) Characters of servants ; (2) confidential communications of a private nature; (3) information as to the misconduct of others and crimes; (4) charges against public officers.” Newell on Slander & Libel, §§ 561, 562.

The case of Rector v. Smith, reported in 11 Iowa, 306, is almost similar to the case before us. Quoting from that case, the petition alleged that, on or about the 19th day of March, 1859, in the town of Sydney in Fremont county, Iowa, the defendant falsely, wickedly, etc., did compose and publish, and cause to be composed and published, of and concerning the plaintiff, and of and concerning his official misconduct when he was county judge of said county, a certain false, malicious, scandalous, and defamatory libel, containing, among other things, the following words:

“We feel it our duty also to call attention to a few particulars of accounts under the management of Frederick Rector, which appears to be to indicate extravagance, and in some instances something worse than extravagance, in the appropriation of the funds of the county. * * * Hirst, of extravagance, we find among other minutes the following expenses at the land trial at Council Bluffs, $2,712.85, together with five hundred dollars, for which no account is given on the minute book, but said to have been expended for the same object; making in all $3,212.85, as expenses of said land trials at Council Bluffs, in 1857. * * * We find warrants for money canceled and evidences of money paid to him, for which no acknowledgment can be found.”

The defendant’s answer contains two counts. The first admits that plaintiff was county judge, but denies malice, and the in-nuendoes set out in the petition. The second count sets up as a defense the following allegations:

“That at the March term of the district court of Fremont county, to wit, on or about the 19th day of March, 1859, he, this defendant, was one of the grand jurors impaneled and sworn and charged at said term of said court, and whose duty it was by law specially made to inquire into all willful and corrupt misconduct of all county officers and the management of the affairs of said county, and to perform all and singular the duties of grand jurors according to the statute in such cases made and provided. And he says that he, in connection with his fellows, acted in the capacity of grand jur-orss and as such grand jury, in the course of their legal investigations, and in the discharge of their duty, without hatred, malice, or ill will, and in good faith, did, during the said term of said court, find from the records of said county and other evidence legally produced before them the facts stated in a certain report of a grand jury at said term, in which report is the pretended libel given in plaintiff’s petition, and that on or about the 19th day of March, 1859, this defendant, being then and there the clerk of said grand jury, appeared in open- court with his fellows with their presentments and indictments, among which was the aforesaid report, which is the identical publication referred to in plaintiff’s petition as a libel, which report was then and there read by this defendant, as such clerk, by the direction of said grand jury; and he says the said report and the said reading are the pretended libel and publication thereof referred to by plaintiff in his petition. That said grand jury found the facts therein stated in the course of their investigations, as they were legally bound to do, and that said grand jury ordered him, as their clerk, to write the same, and that after it was written it received the sanction of and was adopted by said grand jury unanimously, and that they directed him as their clerk to read said report in said court, which he did, as he had a perfect right to do, and as was his duty as a member and' the clerk of said grand jury. And the defendant further says that neither he nor his fellows, as such grand jury, were actuated by malice or ill will, nor by any improper motive nor desire to injure the plaintiff, but that they found said facts, and prepared and read said, report in good faith and for the public good, in the discharge of their duty.”

To this count the plaintiff demurred upon the following grounds: (1) That the matters set forth are not in law privileged communications; (2) that the said grand jury had no right, in law, to report upon said matter in the manner set forth in the answer; (3) the answer does not allege that the matters reported by said defendant, as clerk of the grand jury, are true. This demurrer was overruled and plaintiff appeals.

The court, speaking through Baldwin, J., says:

“There is but one question presented for our determination in this case, and that is whether the defendant can plead in justification of the publication of libelous matter concerning the plaintiff as county judge that when such libel was published the defendant was acting as a grand juror; that the matter charged as libelous was a privileged communication made by him as a juror to the court. The communication thus claimed by. defendant as privileged charges the plaintiff with willful and corrupt misconduct as a county officer, which is an indictable offense. It is made the duty of the grand jury, when they find that an indictable offense has been committed within their county, to present the same by indictment. * * * By section 2992 it is made the special duty of the grand jury to inquire into the matters specified in the subdivisions of this section. It is under the provisions of this section that the defendant claims that the law authorized and justified him in presenting to the court, as a grand juror, the report in regard to the actions of plaintiff as county judge. The grand jury had no power, nor is it their privilege or duty to present any person for a criminal offense, except by indictment. If the misconduct of an officer does not amount to a crime and is not of such magnitude as would justify the jury in, finding an indictment, their powers over the offense complained of are at an end. It is claimed that by section 2992 of the Code the grand jury have the power to report otherwise than by indictment upon the subjects named in the subdivisions of this section. And this construction is claimed upon the ground that the second subdivision * * • contemplates a report by the grand jury, and that if a report can be made upon one of the subjects, the consideration of which is thus specially enjoined upon the jury, a report may be made upon each of the subjects named in this section, or at least they can report upon the condition of the prison and upon the conduct of county officers. An indictment may be presented under each of those subdivisions. Should there be a person imprisoned in the county, it is made the special duty of the jury to inquire into the offense charged, so that the criminal may be brought to speedy trial. Should there have been a willful neglect of duty by the keepers of the prison, they are liable to be indicted for such willful neglect. There can be no question as to the power of the grand jury to indict under the other two subdivisions. A report by a grand jury presents nothing upon which .the court can act, unless it is in reference to the condition of the prison. The court can take no jurisdiction over the complaint charged by such report. Nor can a person, thus presented have an opportunity to show himself innocent of the matters complained of. With this view of the question we conclude that the report presented by defendant as a juror was not a privileged communication, and that he cannot plead this in bar of plaintiff’s right to recover. The defendant, however, in his answer denies all malice in this publication, and avers that it was made in‘the discharge of a public duty, and in good faith. If the publication was made without malice and, as the defendant supposed, in the discharge of a public duty, and without .any ill will or hatred toward the plaintiff, we are of the opinion that plaintiff ought not to maintain his action.
“Chief Justice Shaw, in the case of Bradley v. Heath [12 Pick. (Mass.) 163, 22 Am. Dec. 418], says: ‘Where words imputing misconduct to another are spoken by one having a duty to perform, and the words are spoken in good faith, and in the belief that it comes within the discharge of that duty, * * * no presumption of malice arises from the speaking of the words, and therefore no action can be maintained in such cases without proof of express malice. If the occasion is used merely as a means of enabling the party to utter the slander, to indulge his malice, and not in good faith to perform a duty, * * * the occasion will furnish no excuse.’ 12 Pick. 163 [22 Am. Dec. 418].”

In line with the above case, we find a decision handed down by our sister state, Louisiana, reported in Eisk v. Soniat, 33 La. Ann. 1400, in which the same doctrine is announced as in the above case.

We are of the opinion that the case above referred to expresses the correct principles, and is decisive of the instant case, and, so believing, we are impelled to sustain appellant’s first assignment, and hold that the lower court erred in sustaining the demurrer and in dismissing the case.

Reversed and remanded.
      <S=^For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BROOKE, J.

license: Public Domain

text:
    McFADDIN et al. v. JOHNSON.
    (No. 9.)

    (Court of Civil Appeals of Texas. Beaumont.
    Oct. 14, 1915.
    Rehearing Denied Nov. 25, 1915.)
    1. Boundaries <&wkey;3 — Description—Control by Metes and Bounds.
    Where a deed on its face was not ambiguous as to the description of the land conveyed, there being no conflict in the calls, although the general description of the deed as including a survey was in conflict with the field notes of such survey, the particular description by calls of the land conveyed was not overridden by the general description, since, where a grantor conveys specifically by metes and bounds, so that there can be no controversy about what land is included and really conveyed, a general description cannot control in case of repugnance between the description by metes and bounds and the general description.
    [E'd. Note. — For other cases, see Boundaries, Cent. Dig. §§ 3-41; Dec. Dig. <&wkey;>3.]
    2. Evidence <&wkey;460 — PAROL Evidence Affecting WRITINGS — DESCRIPTION OF DEED.
    Where there was no ambiguity in the description of the land conveyed upon the face of a deed, the calls not being in conflict, but tlfiSre was a conflict, in that the field notes of the survey named as the land conveyed in fact did not show that such was the case, there was no ambiguity in the description of the land, rendering admissible, in a controversy between the parties, parol evidence to resolve any ambiguity of the deed, since the conflict between the field notes of the survey and the general description did not justify the disregard of the descriptive particulars of the calls, which were clear and unambiguous, and identified the land conveyed as being that of the survey.
    [Ed. Note. — For other eases, see Evidence, Cent. Dig. §§ 2115-2128; Dec. Dig. &wkey;460.]
    Appeal from District Gourt, Jefferson County ; W. H. Davidson, Judge.
    Action by W. P. H. McFaddin and others against B. J. Johnson. Judgment for defendant, and plaintiff McFaddin appeals.
    Affirmed.
    F. J. & O. T. Duff, of Beaumont, for appellant. Jas. A. Harrison and Watts & Wheat, both of Beaumont, for appellee.

      Writ of error pending in Supreme Court.

   BROOKE, J.

This was an action of trespass to try title, brought January 1,1913, by the appellant and the heirs of V. Wiess. However, the heirs of V. Wiess have not joined in this appeal, and same is being prosecuted by W. P. H. McFaddin alone. The land alleged to have been conveyed by the defendant and his wife to plaintiffs is described in said deed of conveyance as follows:

“The State of Texas, County of Jefferson.
“Know all men by these presents, that we, B. J. Johnson and wife, Jodie Johnson, of the county of Jefferson, state of Texas, for and in consideration of the sum of nineteen hundred four and BO/ioo ($1904.50) dollars, paid by W. P. H. McFaddin and V. AYiess, the receipt whereof is hereby acknowledged, have granted, sold, and conveyed, and by these presents do grant, sell, and convey, unto the said W. P. H. McFaddin and V. Wiess, of the county of Jefferson, state of Texas, all that certain undivided one-half interest in and to the following described property, with exceptions and reservations as hereinafter designated, as follows, to wit:
“A part of the A. Reuss survey, lying and being situate in Jefferson county, Texas, on what is generally known as the Back Ridge, near the town of Sabine Pass, said tract being more particularly described and bounded as follows: Beginning on the west line of the Dennis Gahagan league, a post at the northeast corner of a labor made for A. F. Smith, assignee of Elijah Isaacs; thence north on Gahagan’s west line, 886 varas, to stake and mound in prairie; thence south 38 degrees west, 757% varas, to a stake in salt water marsh; thence south, 886 varas, to stake in marsh; thence north 58 degrees east, at 650 varas prairie, at 757% varas place of beginning — and same being known as the Cronia Place, containing 119 acres of land, more or less; said land being fully described in deed from T. P. Harris and F. O. McReynolds to B. J. Johnson, which deed is of record in Book 2, page 275, and also in deed from Joe Johnson to B. J. Johnson, which deed is of record in Book Q, page 406, Deed Records of Jefferson County, Texas.
“Excepting and retaining to said grantor, B. J. Johnson, his heirs and assigns, all of the mineral rights in, upon, or under said property herein conveyed, together with the right of ingress and egress, and to opérate well-boring and mining machinery, lay necessary pipe lines, etc., and to remove therefrom at any time all oils, gases, ores, or minerals of whatever character;it being intended to reserve to grantor, his heirs and assigns, all oil, gas, and mineral rights of whatever nature, and the right to prospect upon said premises, develop, and operate such mining rights as fully as if this conveyance were not made.
“Excepting and reserving, also, all of those certain improvements, consisting of a_ dwelling house and barn, outhouses, and fencing upon and around about five acres of said land; said improvements being known as George Johnson’s home.
“To have and to hold the above-described premises, together with all and singular the rights and appurtenances thereto in any wise belonging, unto the said W. P. H. McEaddin and V. Wiess, their heirs and assigns, forever, and we do hereby bind ourselves, our heirs, executors, and administrators, to warrant and forever defend all and singular the said premises unto the said W. P. H. McFaddin and V. Wiess, their heirs and assigns, against every person whomsoever lawfully claiming or to claim the same or any part thereof.
“Witness our hands at Sabine Pass, this 7th day of March, A. D. 1908.
“[Signed] B. J. Johnson.
“Jodie Johnson.
“The State of Texas, County of Jefferson.
“Before me, F. H. Robinson, a notary public in and for Jefferson county, Texas, on this day personally appeared B. J. Johnson, known to me to be the person whose name is subscribed to the foregoing instrument, and acknowledged to me that he executed the same for the purposes and consideration therein expressed.
“Given under my hand and seal of office, this 7th day of March, A. D. 1908.
“[Signed] F. H. Robinson,
“Notary Public in and for Jefferson County, Texas.”

This deed was also properly acknowledged on the 7th day of March, A. D. 1908, by Jodie Johnson, and was filed with the clerk of the county court of Jefferson county for record on the 7th day of March, A. D. 1908.

The defendant answered, first setting up that he was guardian of certain minors, who owned an undivided interest of about 11 % acres in the A. Reuss survey; and, second, save and except as to this undivided interest of 11% acres, he disclaimed all interest in the A. Reuss survey, except the mineral rights therein, and admitted that the same was the property of the plaintiffs. He further answered, alleging that he was the owner of a tract of 100 acres of land, a part of the Dennis Gahagan and a part of the Stephen Everett subdivision of said Dennis Gahagan survey, adjoining the A. Reuss survey, describing the 100 acres of land as follows:

“Beginning on the Gahagan west line at the southwest corner of said Everett subdivision; thence in an. easterly direction with the said Everett’s south line to a point a sufficient distance by running due north to said Everett’s north line to embrace 100 acres of land; thence north to said Everett’s north line; thence west, with said Everett’s north line, to his northwest corner on the Gahagan west line; thence south, along said Gahagan west line, to the place of beginning”

—claiming this land by limitation. The defendant further admitted that about five acres of the A. Reuss survey was within his inclosure, but as guardian of the minor children, first named in his petition, he claimed the right to this five acres. He further answered by plea of not guilty and general denial.

The plaintiffs, in reply to this answer, filed their supplemental petition, and especially answered as follows:

“These plaintiffs say it is not true, if defendant means and intends to mean by that portion of his answer that he is the owner of 100 acres of land in the Dennis Gahagan survey, situated in Jefferson county and adjoining the A. Reuss survey, said 100 acres being a portion and part of what is heretofore and has for a long time been known as the Cronia place, and aiso what has heretofore been known as the B. J. Johnson tract, and in this connection these plaintiffs say that they are the owners of all of the land situated in the A. Reuss or the Dennis Gahagan survey, constituting what has for a long time been commonly and generally known as the Cronia place, said land being the same land bought by these plaintiffs from B. J. Johnson and Jodie Johnson, and is also described in a deed from T. P. Harris and F. O. McReynolds to B. J. Johnson; and these plaintiffs deny that said B. J. Johnson owns any interest whatever in any portion or part of this land, whether situated in the' A. Reuss or in the Dennis Ga-hagan surveys, which was, as aforesaid, known as the Cronia place, or Back Ridge, in Jefferson county, Texas, all of which said iand and place is more particularly described in deeds from B. J. Johnson and Jodie Johnson to these plaintiffs.”

Plaintiffs further alleged in said supplemental petition that if it be true that any portion of the land is in the Dennis Gahagan survey that it was the intention of the defendant and the said Jodie Johnson, by their deed dated the 7th of March, 1908, and they did by said deed bargain, sell, and convey unto these plaintiffs all of the land constituting what was known as the Cronia place, or Back Ridge, and the B. J. Johnson homestead, as same was described in said deed, and that, if it be true that the said B. J. Johnson had acquired the title to any portion of this land by limitation, it was the intention of said parties to convey said land by the aforesaid deed, and the same was conveyed, and is now the property of these plaintiffs by virtue of said deed.

The defendants filed supplemental answer, in response to plaintiffs’ supplemental petition, and alleged that what has always been known as the Cronia place is and was situated on the 119-acre tract of land, part of the A. Reuss survey, and was conveyed by this defendant to the plaintiffs by the deed mentioned in said supplemental petition, and that the defendant does not assert, but disclaims, any right, title, or interest in and to the same, and the defendant, further replying to the said supplemental petition, avers that what is known as the B. J. Johnson homestead tract is situated on the Dennis Gahag-an survey, and that no part of it is on the A. Reuss survey, and that no part of the B. J. Johnson homestead tract was conveyed or intended to be conveyed by this defendant to the plaintiffs by said deed of conveyance, and the defendant denies that it was his intention to convey to the plaintiffs by said deed any other land than that situated on the A. Reuss survey, as is evident from the calls in said deed to the plaintiffs, which call for the land as on the A. Reuss survey, and give the field notes calling for the Dennis Gahagan survey, and making the west boundary line of the Dennis Gahagan survey the east boundary line of the land so conveyed by the defendant to the plaintiffs; and defendant further expressly denied that he ever intended to convey any part of the Dennis Gahagan survey to the plaintiffs by said deed, and says that, in the negotiations leading up to the purchase and conveyance of said land between himself and the plaintiffs to the plaintiffs, this defendant expressly notified and stated to the plaintiffs that he would not convey any land whatever, except that which was upon the A. Reuss survey, and 'that it never was his intention or purpose to convey any other land than what was on said A. Reuss survey, which intention was well known to the plaintiffs at that time, and denied that he ever at any time intended to convey by said deed of conveyance to the plaintiffs the B. J. Johnson homestead place, or any part of same, and that this intention on his part was well known to the plaintiffs at and before said deed of conveyance was executed and delivered to the plaintiffs.

On the above pleadings a trial was had upon special issues, submitted by the court to the jury, resulting in a verdict and judgment upon their answers, in favor of the defendant. Motion for new trial was presented in due time, and was overruled by the court.

At the outset we are confronted with a motion filed by appellee to strike out and not consider appellant’s first assignment of error, and appellee objects to the consideration of the same, because he says that said first assignment violates rule 29 governing Courts of Civil Appeals (142 S. W. xii). We are not prepared to say that the brief is not subject to the criticism offered, but inasmuch as the appellant has only two propositions, which are decisive of the case, we are unwilling to strike out the assignment, and same will be considered.

The appellant undertakes to group the first, second, and eighth sections of paragraph 1 and the fourth, fifth, sixth, and ninth sections of paragraph 2 of plaintiffs’ motion for new trial, and asks that the same be considered as one assignment of error. He has two propositions under the assignment, which he presents to this court. The first proposition practically embraces both, and is as follows:

“The plaintiffs having set up in their pleadings that it was the intention of B. J. Johnson and his wife to convey the land known as the Cronia place to them, and that said deed executed by them did in fact convey the land known as the Cronia place, and having introduced evidence tending to establish these allegations contained in their pleadings, the court should have submitted the issue to the jury, under proper instructions, for their determination.”

There is no ambiguity in the description of the land upon the face of the deed from ap-pellee to appellants, but it is claimed and earnestly insisted that when we come to apply the description, as contained in the field notes, to the land, that there is an ambiguity ; that there is a general description in the deed which is in conflict with the field notes as set out; in other words, that the A. Reuss survey does not include all of the Back Ridge near the town of Sabine Pass, but only a part of the Back Ridge, and that while the house or houses of Cronia, the original settler, was within the particular description in said deed, and was on the A. Reuss survey, that a part of the field of the original settler and of B. J. Johnson was on the Dennis Gahagan league. The facts show that B. J. Johnson first lived in the same house or houses originally occupied by Cronia, and that after the storm of 18S5 he moved from that place, and from the A. Reuss survey, over the line on the Dennis Gahagan survey. The facts further show that George Johnson, at the time of the conveyances above set out, still lived on the A. Reuss survey, and his improvements, containing four or five acres and buildings, were on the A. Reuss survey, and were specially excepted from the operation of the deed.

In the construction of an instrument, where there is a particular description by metes and bounds, and there is a repugnance between the particular description in the deed and a general description, it has been held that where a grantor conveys specifically by metes and bounds, so that there can be no controversy about what land is included, and really conveyed, a general description cannot control. A general description may be looked to in aid of a particular description that is defective or doubtful, but not to control or override a particular description, about which there can be no doubt. There can be no doubt about what land appellee conveyed to appellants, whatever he may have intended to convey. Cullers v. Platt, 81 Tex. 258, 16 S. W. 1005.

There is a contention in this case that the description belongs to the class in which parol evidence would be admissible in a controversy between the parties, and to aid the court in solving questions left in doubt by the terms of the deed. There is no conflict in the calls of the deed to justify the disregard of descriptive particulars. Nor does the effort to apply the description to the ground give rise to any sort of ambiguity to be removed by parol evidence showing the intention. Both upon the face of the deed and in its application to the ground, the description is clear and unambiguous, and indentifies the land conveyed as being the A. Reuss survey, and as embracing within its lines the house or houses occupied by Cronia. We do not believe that parol evidence can make a ■ deed convey land that it does not purport to convey, nor prevent it from conveying that which it does clearly purport to convey, and if parol testimony were properly admitted in this case, said testimony does not, in our judgment, raise any doubt that the land as described by metes and bounds in the deed was the land intended by the parties ■to be conveyed. It has been held that, where the description of a deed is definite and cer-tain, parol evidence that other land than that described was intended to be conveyed is not admissible in trespass to try title; it being only in a suit to correct a deed on the ground of fraud or mistake that its terms •can be so varied or contradicted. Yarbrough v. Clarkson, 155 S. W. 955. In support of the views above expressed, the following cases are cited: Culler v. Platt, 81 Tex. 263, 16 S. W. 1003; Boggess v. Allen, 56 S. W. 195; Yarbrough v. Clarkson, 155 S. W. 954; Davis v. George, 104 Tex. 106, 134 S. W. 326, and cases there cited; Bond v. Garrison, 127 S. W. 839; Tate v. Betts, 97 S. W. 707; Gorham v. Settegast, 44 Tex. Civ. App. 254, 98 S. W. 669; Powers v. Minor, 87 Tex. 83, 26 S. W. 1071.

It follows, from what has been said, that the learned trial judge was correct in his •ruling. The appellant’s assignment is overruled, and the judgment of the lower court ■is in all things affirmed.
      &wkey;>For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HUFF, C. J.

text:
    RECTOR et al. v. CONTINENTAL BANK & TRUST CO.
    (No. 849.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 20, 1915.)
    1. Appeal and Error &wkey;>745 — Briefs—Assignments of Error — Failure to File Below — Statute.
    Under Rev. St. 1911,. art. 1612, providing that the appellant shall in all cases file with the clerk of the court below all assignments of ■error before he takes the transcript of record, from the clerk’s office, and rule 23 for the ■Courts of Civil Appeals (142 S. W. xii), providing that the record should contain assignments of error as required by statute, and, if it ■ does not, the court will not consider any error but one of law apparent upon the record, where an assignment of error was not filed in the lower court and brought up in the transcript, the Court of Civil Appeals would strike and not consider it.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3039, 3042; Dec. Dig. 745.]
    :2. Appeal and Error <&wkey;756 — Briefs — Assignments of Error — Numbering—Statute.
    Under Rev. St. 1911, art. 1612, providing that the appellant shall in all cases file with the clerk of the court below all assignments of error before he takes the transcript of record from the clerk’s office, and rule 29 for Courts of Civil Appeals (142 S. W. xii), providing that the assignments as presented in the brief shall be numbered from first to last in consecutive order, but that the order in which they appear in the original assignments may he disregarded, where the fifth paragraph of appellant’s motion for new trial was divided into subheads, .and subhead No. 1 was assignment No. 2 in his brief, subhead No. 2 was assignment No. 3, etc., appellant’s disregard in his brief of the numbering of his subheads of the motion for new trial, making each subhead of paragraph 5 a separate assignment of error, was a substantial compliance with the rule of the court and statute.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3091; Dec. Dig. <&wkey;>756.]
    3. Gifts <&wkey;18 — Inter Vivos.
    Under Rev. St. 1911, art. 3968, providing that no gift of chattels, not by deed or will, shall be valid unless the donee secures actual possession, where a father gave his minor daughter by parol a mare, there being no delivery of the animal which ran at large on the range, property therein did not pass to the daughter, and the mare’s increase did not belong to her.
    [Ed. Note. — For other cases, see Gifts, Cent. Dig. §§ 29-33; Dec. Dig. &wkey;>18.]
    4. Gifts <&wkey;30 —Inter Vivos — Delivery — Statute.
    Under Rev. St. 1911, art. 3968, providing that no gift of chattels not by deed or will shall be valid unless the donee secures actual possession, where a father by parol gave live stock to his minor children, there being no delivery, and thereafter such stock was sold and part of the money deposited in bank in the name of one child, subject to his check, and the rest given to the other child, such money passed to the children by gift inter vivos, irrevocable on account of the actual delivery, and live stock purchased by the children with the money, together with its increase, belonged to them by purchase and not by gift, since money deposited in bank in the name of the donee, and delivery of the passbook or the like, constitutes a valid gift, and were not subject to execution by the father.
    [Ed. Note. — For other eases, see Gifts, Gent. Dig. §§ 52-57; Dec. Dig. &wkey;30.]
    5. Fraudulent Oonveyances <&wkey;96— Gift by Insolvent Debtor — Statute.
    Under Rev. St. 1911, art. 3967, providing that every gift made by a debtor not upon valuable consideration shall be void as to prior creditors unless the debtor at the time of the gift was solvent, where a father gave money to his children, the proceeds of the sale of his live stock, and was not possessed of money to pay his debts, such attempted gift was void as to an existing creditor.
    [Ed. Note. — For other cases, see Fraudulent Oonveyances, Cent. Dig. §§ 289-322; Dec. Dig. &wkey;96.]
    Appeal from Fisher County Court; M. A. Hopson, Judge.
    Suit by Terrell Rector and others, by B. R. Rector, next friend, against the Continental Bank & Trust Company. Judgment for defendant, and E. R. Rector appeals.
    Reversed and remanded.
    J. C. Randel, of Hamlin, for appellant. J. D. Barker and L. H. McCrea, both of Roby, for appellee.
   HUFF, C. J.

The appellee has filed its motion to be considered with its brief, urging that this court should strike out and not consider the assignments of error presented by the appellants.

The first assignment of error so presented was not filed in the lower court and brought up in the transcript.

“The appellant * * * shall in all cases file with the clerk of the court below all assignments of error, * * * before he takes the transcript * * * record from the clerk’s office.” Art. 1612, R. O. S.

The motion of appellee as to this assignment must be sustained. Rules 23 and 29 for Courts of Civil Appeals (142 S. W. xii); Overton v. Colored Knights of Pythias, 163 S. W. 1053.

The appellee objects to the consideration of the second, third, and fourth assignments, for -the reason that the assignments briefed are not the assignments filed in the court below and brought up in the transcript. In paragraph 5 of appellant’s motion for new trial, the appellants set up therein the grounds assigned by assignments Nos. 2, 3, and 4, and copied in the brief. The fifth paragraph of the motion for new trial is subdivided into subheads, Nos. 1, 2, and 3. Subhead No. 1 is assignment No. 2 in the brief, subhead No. 2 is assignment No. 3 in the brief, and subhead No. 3 is assignment No. 4 in the brief, and arei literally quoted in the assignments. The assignments in the brief “is not required that they shall be presented in the order in which they appear in the original assignments of error filed in the office of the clerk of the trial court, and the numbers of such original assignments may be disregarded.” Rule 29 for Courts of Civil Appeals. In briefing ap-pellants have simply disregarded the numbering, making each subhead of paragraph 5 of the motion a separate assignment. This we believe to be a substantial compliance with the statute and rules. The motion to disregard the brief and the last three assignments so briefed will be overruled.

This is a suit for the trial of the rights of property. Terrell Rector, Mabel Rector, and Effie Rector, by their next friend and natural guardian, E. R. Rector, presented their claimant’s oath and bond for certain horses, mules, and cattle levied on by the sheriff of Fisher county, as the property of E. R. Rector, by virtue of an-execution issued out of the district court of Tarrant county, November 23, 1914, in cause No. 37316, Continental State Bank of Ft. Worth v. E. R. Rector. Issues were made up under the direction of the trial court and upon a trial before the court, without a jury, resulted in a judgment for the appellee bank, for the value of the property levied on, $365, with interest from the 30th day of December, 1914, with 6 per cent, interest thereon per annum, and 10 per cent, of the value of the property under the statute, $36.50, against the claimants and the sureties on the claimants’ bond. The case is here without a statement of facts, upon the issues presented and upon the findings of the trial court filed in the trial court.

The trial court finds that the execution was levied on the following property: “One Jersey cow, branded T left hip; one Jersey steer yearling; 1 brown Jersey, four years old, branded R on hip; one bay bald-face saddle horse; 1 brown Jersey cow; one brown mare; one bay mare mule” — and that this is the same property claimed by the claimants hi this suit.

The court further finds that the claimants are the children of E. R. Rector. Effie is 14 years old; Mabel 11, and Terrell 10 years old, respectively, all living with their parents, and maintained and supported by them, and not emancipated. That E. R. Rector is insolvent, and had been in failing circumstances since 1907.

“I further find that all of said property claimed by claimants is the direct result of a gift from E. R. Rector to said children and shown to have occurred as follows: That in the summer of 1909, the said E. R. Rector give to his son a horse, and in the summer of 1912-'there-after said father and son sold said horse for $65.00 and said father (E. R. Rector) deposited the money in the First State Bank of Hamlin, Texas, in the name of Terrell Rector; that within a few weeks the son Terrell Rector gave his check on said bank and signed his own name, Terrell Reetor; to said check for $35, to one N. E. Porter; said check being cashed in payment for said one Jersey cow branded T, at that time only a calf, same cow as shown in sheriff’s returns, and its mother which is now dead; that the Jersey yearling levied upon in this cause is the calf of the above Jersey cow branded T, and claimed by Terrell as the increase of cow purchased; that the brown Jersey cow, branded R on hip, and levied upon, was paid for by a check on the above account, with said bank about two years ago, given upon the above said bank, signed by Terrell Rector, and cashed by one Ed Beck in payment of same; that the said brown Jersey cow two or three years old, and levied upon, was obtained by swapping one calf of the above said cow branded R and purchased from Ed Beck, for this one; that about eight years ago, E. R. Rector gave to MabeJ Rector one roan mare, and that within a few months said E. R. Rector and Mabel sold this mare, and after Mabel Rector received the money for said animal, she purchased with this money one sorrel mare which is the mother of the mare mule, levied upon as aforesaid, and has been claimed by Mabel Rector all its life; that the bay bald-face horse claimed by Mabel, and levied upon in this cause, was the colt of the sorrel mare purchased by Mabel with money as aforesaid; that the bay or brown mare, levied upon, and claimed by Effie Rector, and about four or five years old, is a colt of a mare named Criekett, the said Grickett mare being given to Effie by E. R. Rector about seven years ago; that the above seven head of stock is all the stock levied upon in said suit, but that there was a levy made upon a house and lot in block 23 of the town of Royston, Fisher county, Texas, and so shown in the sheriff’s return. That said E. R. Rector does not claim the house and lot. I further find, as a matter of fact, that none of the stock except the T cow was branded for said children, and that no brand was ever placed of record, and that said property has run at large on the range, and that no delivery, other than mentioned above, was ever made of said property from E. R. Rector to said claimants. And that all of said gifts by E. R. Rector to said minors were verbal gifts. I further find that all of said seven head of stock, except two head, is younger than five years of ag&. And some from one year old to five.”

The second assignment is to the effect that the court erred in rendering judgment in favor of appellee for the mule and bald-face horse claimed by Mabel Rector.

The third assignment is that the court erred in holding that the four head of cattle-claimed by Terrell Rector was subject to bis father’s debts.

The fourth assignment is the court erred in holding the mare claimed by Effie Rector was subject to the father’s debts.

The appellee in this case relies upon the statute that:

“No gift of any goods or chattels shall be val.id unless by deed or will, duly acknowledged or proven up or recorded, or unless actual possession shall come to and remain with the agent or some one claiming under him.” Art. 3968, R. C. S.

As to the mare claimed by Effie, we think there can be no doubt as to the correctness of the court’s findings; there was no such possession which came to and remained with her as will constitute a gift under the statute, and the decisions of the courts of this state thereunder. We believe under his findings the court was correct in holding this animal subject to the execution. Eldridge v. McDow, 46 Tex. Civ. App. 270, 102 S. W. 435; Love v. Hudson, 24 Tex. Civ. App. 377, 59 S. W. 27; Eldridge v. McDow, 132 S. W. 517; Cowen v. Bank, 94 Tex. 547, 63 S. W. 532, 64 S. W. 778; Bank v. McWhorter, 179 S. W. 1147, by this court, not yet officially reported.

The findings of the court as to Terrell and Mabel are different. The court finds generally that all of the property claimed “is the direct result of the gift from E. R. Rector to said children and shown to have occurred as follows:” In the summer of 1909 the father gave to his son a horse, and in the summer of 1912 the son and father sold this horse for $65, and deposited it in the bank in the name of Terrell Rector. Within a few weeks Terrell gave his check on this account for $35, in payment for a Jersey cow, of which part of the animals levied on is the increase; and the other cow was purchased by cash so deposited, which was traded for part of the animals levied on. The father gave Mabel a mare. The daughter and father sold this animal for money. This money the father delivered to the daughter, with which she purchased the mother of the mule and bald-face horse in controversy. The court certainly finds it was the purpose of the father to make the gift to these two children of the original horses named. It may be conceded that the animals first given the son and daughter were not delivered, and under the statute did not pass to the donees; when the father, with the son and daughter, sold the animals, and the father gave into their possession the money, the gift as to the money became complete. The court finds it was the purpose to give and that it was completed by actual delivery. The title and right in the son and daughter to their respective sums of money was complete. 20 Cyc. 1193. The gift of the money so established was executed, and could not thereafter be revoked. 20 Cyc. 1212; Thompson v. Caruthers, 92 Tex. 530, 50 S. W. 331. The animals thereafter purchased with this money, together with their increase, was the property of the son and daughter, respectively, by purchase and not gift. As to such animals so purchased, the statute quoted did not apply, but the title to the animals being in the children, if they were on the range, would be in the constructive possession of the children. As to property so purchased, as we conceive the law to be, it was not necessary that the possession “come to and remain with actual delivery.” If the title vested by purchase, they could hold the property by actual, constructive, or symbolic delivery. Money deposited in a bank in the name of the donee, and a delivery of the passbook or the like, makes the transaction valid as a gift. 20 Cyc. 1204; Hill v. Escort, 38 Tex. Civ. App. 487, 86 S. W. 367; Cowen v. Bank, 94 Tex. 547, 63 S. W. 532, 64 S. W. 778; Burns v. Lowe, 161 S. W. 942; Thompson v. Caruthers, 92 Tex. 530, 50 S. W. 331; same case 51 S. W. 1093. We believe when the donor deposited the money in the bank subject to be checked out by the donee and it so stood in the name of the donee, that it should be treated as such delivery as will constitute a gift in law. The findings of the court as to Terrell and Mabel we believe show the purpose on the part of the father to give, and the delivery of the money which followed will support the gift of the money. The trial court was therefore in error we believe in holding the animals claimed by these children subject to execution against the father.

The findings of the court do not show that at the time of the gift the appellee was a prior creditor of E. R. Rector. By his findings he only gives the date of the rendition of the judgment, which shows to have been some time after the gift had been made as found by him. If it should be shown by the evidence that the father was at the date of the gift, or either of them, indebted and was not possessed of property sufficient to pay his existing debts, the gift then so made as to such existing creditor would be void. Art. 3967, R. C. S.; Maddox v. Summerlin, 92 Tex. 486, 49 S. W. 1033, 50 S. W. 567.

The trial court having failed to find the separate value of the animals, we cannot therefore reverse and render the judgment as requested by appellant. The case, however, will be reversed and remanded as to all of the claimants.
      @=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MOURSUND, J.

text:
    COLEMAN-FULTON PASTURE CO. et al. v. ARANSAS COUNTY et al.

    (No. 5624.)
    (Court of Civil Appeals of Texas. San Antonio.
    Oct. 27, 1915.
    Rehearing Denied Dec. 1, 1915.)
    1. Municipal Coepoeations <&wkey;863 — Poweb TO CONTBAOT — LIMITATION BY TAXING POWEE.
    The power of a municipal corporation to contract is limited by its power to tax.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1824 — 1827; Dec. Dig. <&wkey;8G3.]
    2. Counties <&wkey;153% — Powek op County-Constitution — “Roads” — “Macadamized” — “Geavebed” — “Paved” — “Causeway.”
    Const, art. 3, § 52, provided that the Legislature could not authorize any county to lend its credit in aid of any individual or corporation. The section was amended in 1903 to provide that any county, upon a two-thirds majority vote of the resident property taxpayers voting thereon, may issue bonds for the construction and maintenance of “macadamized, graveled or paved roads and turnpikes, or in aid thereof.” Held, that such provisions did not authorize the construction of a causeway across a bay some 13,000 feet long, 3,000 feet of which, spanning deep water was to be a bridge; the word “roads” not being the equivalent of “roads and bridges,” and the words “macadamized/’ “graveled,” and “paved” not being descriptive of bridges, and a “causeway,” though coming within the term “road” would not come within the authority conferred, where a part of it constituted a bridge.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 221, 222; Dec. Dig. &wkey;153y2.
    For other definitions, see Words and Phrases, First and Second Series, Roads; Macadamize; Gravel; Pave; Causeway.]
    Appeal from District Court, Aransas County; F. G. Chambliss, Judge.
    Suit by the Coleman-Fulton Pasture Company and others against Aransas County and othérs, to restrain the County Judge and Commissioners’ Court from issuing bonds. From an order refusing a temporary injunction, plaintiffs appeal.
    Judgment reversed, and cause remanded, with instructions.
    See, also, 180 S. W. 316.
    Proctor, Vandenberge, Crain & Mitchell, of Victoria, and Templeton, Brooks, Napier & Ogden, of San Antonio, for appellants. E. A. Stevens, of Roekport, and Dougherty & Dougherty, B. D. Tarlton, Jr., and H. S. Bon-ham, all of Beeville, for appellees.

      Writ of error pending in Supreme Court.

   MOURSUND, J.

This is an appeal from an order of the judge of the Thirty-Sixth judicial district refusing a temporary injunction. The suit was brought in the court below to restrain the county judge and commissioners’ court of Aransas county from issuing $300,000 of the bonds of Aransas county for the purpose of building what they term a “causeway” across Aransas Bay, between Lamar peninsula and Live Oak peninsula, and from negotiating or selling said bonds, and from applying said bonds or the pro-. ceeds thereof to the construction of said structure. The character of structure termed by them a “causeway” is fully set out in the petition, and in the plat or map and the specifications attached as exhibits thereto, and these show that it is a structure about 13,000 feet long, running across the waters of the bay between the points above referred to, and that the water between said points varies from 3 to 13 feet in depth. Specifications of the structure, with a drawing thereof, prepared by an architect employed by the commissioners’ court, are made part of the petition. These show that the structure is to consist of the following:

“(1) A hydraulic fill 50 feet wide at the crown to a level of 6 feet above M. H. T., extending from either end of the trestle structure to the mainland terminals.
“ (2) A reinforced concrete bridge of the beam and girder type, supported on concrete pile bents, spaced 30 feet apart, spanning the deep water in the bay for a distance of 3,033 feet, including the draw span, and having a clear roadway width of 20 feet.
“(3) A drawbridge, with 20-foot roadway and 50-foot clear span, crossing the channel at its deepest point, in order to provide passageway for boats and comply with the requirements for navigation.”

The architects, in further describing the proposed bridge, say:

“Our plans show four piles, 16"xl6'' in section, reinforced to act as posts, and driven or jettied down to a safe penetration, requiring lengths varying from 40 to 80 feet, each, will be used for each bent. Upon these bents, spaced 30 feet apart, center to center, will be cast monolithically, except for expansion joints, the superstructure of reinforced concrete, as delineated on the several sheets.”

The bridge is to be paved with wood blocks. The petition shows that an election has been held and has resulted in favor of the issuance of the bonds by a vote of more than two-thirds of the property tax paying voters of said county, and that the said commissioners’ court, unless restrained, will proceed to issue said bonds and incur the necessary expense incident thereto, and will proceed to sell the same and apply the proceeds thereof to the erection of said structure. The petition further shows that the said defendants are attempting to justify their right to issue said bonds under a special act of the Legislature and under subdivision (c) of section 52 of article 3 of the Constitution of the state of Texas, which authorizes the issuance of bonds for:

“The construction, maintenance and operation of macadamized, graveled and paved roads and turnpikes, or in aid thereof.”

Appellants set up in their petition a number of grounds on which they claim the bonds are illegal, the principal one being that the structure proposed is neither a “macadamized, graveled, or paved road,” and that said court has no authority under the Constitution or laws of this state to issue the bonds referred to. The other grounds of invalidity are: (1) That Aransas Bay, over which the structure is proposed to be built, is part of the navigable waters of the United ■States, and that it is contrary to the statutes and laws of the United States to construct it across said waters without the consent of the Chief of Engineers and Secretary of War of the United States, and that this consent has not been given; (2) that the form of ballot used at the election was illegal, in that it required the voter to vote, not merely for or against the issuance of the bonds, but also on the question of the levy of tax for the interest and sinking fund; (3) that the special act referred to was unconstitutional, because it applies to a particular structure to be erected between the points in that county; and (4) that it was unconstitutional, because it relates to the financial affairs of a particular county for that particular purpose — that is, the issuance of bonds for the building of a particular improvement — and is a matter that should have been governed by the general law.

Article 8, § 9, of the state Constitution, as amended in 1883, prohibited counties from levying a tax of more than 15 cents on the §100 valuation for roads and bridges, except for the payment of debts incurred prior to the adoption of the amendment. In 1890 article 8, § 9, was amended so as to give the Legislature the power to authorize an additional tax, not exceeding 15 cents, to be levied for the further maintenance of public roads, provided the majority of the qualified tax paying voters voted such tax. These provisions absolutely limited the power of the Legislature to permit the levying of taxes by counties for road and bridge purposes. As the power to contract is limited by the power to tax (Gould v. City of Paris, 68 Tex. 516, 4 S. W. 650), it necessarily follows that the Legislature was prohibited from authorizing the issuance of bonds, if the tax necessary for the payment of interest and sinking fund exceeded the constitutional limit.

In 1903 the Constitution was amended by adding an additional grant of power to the Legislature with reference to roads. This grant was not made an amendment to section 9 of article 8, which limited the amount of county taxes, but was made in the form of a proviso to article 3, § 52. That section, prior to such amendment, prohibited the Legislature from authorizing any county to lend its credit or grant public money or thing of value in aid of or to any individual, association, or corporation. Evidently the Legislature considered this prohibition unnecessarily severe, as well as the prohibition with reference to the amount of tax which could be levied for roads, so it submitted an amendment to said article 3, § 52, which was adopted, and that section was made to read as follows:

“The Legislature shall have no power to authorize any county, city, town or other political corporation or subdivision of the state, to lend its credit or to grant public money or thing of value in aid of, or to, any individual, association or corporation whatsoever, or to become a stockholder in such corporation, association or company: Provided, however, that under legislative provision any county, any political subdivision of a county, any number of adjoining counties, or any political subdivision of the state, or any defined district now or hereafter to'be described and defined within the state of Texas, and which may or may not include towns, villages or municipal corporations, upon a vote of a two-thirds majority of the resident property tax payers voting thereon who are qualified electors of such district or territory to be affected thereby, in addition to all other debts, may issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such district or territory, except that the total bonded indebtedness of any city or town shall never exceed the limits imposed by other provisions of this Constitution, and levy and collect such taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, as the Legislature may authorize, and in such manner as it may authorize the same, for the following purposes, to wit:
“(a) The improvement of rivers, creeks and streams to prevent overflows, and to permit of navigation thereof, or irrigation thereof, or in aid of such purposes.
“(b) The construction and maintenance of pools, lakes, reservoirs, dams, canals and waterways for the purposes of irrigation, drainage or navigation, or in aid thereof.
“(c) The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof.”

By the adoption of such amendment an exception was ingrafted upon section 52, art. 3, to the effect that aid could be granted an individual, association, or corporation for certain purposes, among them being “the construction, maintenance, and operation of macadamized, graveled or paved roads, and a further exception was created to the prohibition contained in section 9 of article 8, namely, that for the purpose of the construction, maintenance, and operation of macadamized, graveled, or paved roads the limit of taxation fixed for ordinary purposes would not apply, and taxes for roads of the kinds so excepted could be authorized to the extent necessary to pay bonds in an amount not exceeding one-fourth of the assessed valuation of the real property of the county. These provisions of the Constitution make it plain that the power to issue bonds and to levy a tax for road and bridge purposes is expressly limited, and it cannot be contended that because a structure is called a causeway the prohibition does not apply. The Legislature which passed the act authorizing Aransas county to hold the election expressly referred to section 52, art. 3, of the Constitution, for authority, and used the very words of said section in so far as it relates to roads, with the addition of the words “highway” and “causeway.” See chapter 92, Special Laws, 34th Leg. Such power cannot be exercised under section 9 of article 8, for, as is shown by the petition, Aransas county has exhausted its taxing power under that section, and besides the tax nceessary to pay interest and sinking fund for the proposed bonds would be 80 cents upon the $100 valuation of property, an amount far in excess of tbe limit fixed in said section 9 of article 8. It therefore becomes necessary to decide whether the words relating to roads in said section 52, art. 3, authorize the issuance of bonds and the levy of a tax for the purpose of the construction of a structure such as is described in plaintiffs’ petition.

Appellees contend that the words “or in aid thereof” mean that structures may be erected which would enable travelers to pass from one section of a macadamized, graveled, or paved road to another. There is no merit in the contention. Such words must be construed in connection with that part of section 52 which was amended, and when this is done it is evident that they mean that the county may lend its aid to any person, association, or corporation for the purpose of the construction, maintenance, and operation of macadamized, graveled, or paved roads and turnpikes. Simmons v. Lightfoot, 105 Tex. 212, 146 S. W. 871. This brings us to the real issue in the case, and that is whether the word “roads” was used in said section 52 in such a broad sense as to include a structure such as is described in plaintiff’s petition. That structure, to the extent of 3,033 feet, is a bridge; so, in order to uphold the tax and bond issue, it is necessary to decide that the authority to build macadamized, graveled, or paved roads means the authority to build bridges. The words “macadamized,” “graveled,” and “paved” are very appropriate when applied as descriptive of roads, but are not used in describing bridges, for bridges take their names from the material principally employed in their structure. Therefore the words qualifying and limiting the word “roads” tend to show that such word was not used with the intention of making it include bridges. If the legislative committee which drew the substitute amendment, which passed the Legislature without charge of verbiage, and was adopted by the voters, had intended to authorize the creation of bridges, as well as the construction of roads, it could easily have done so by adding the words “and necessary bridges.” This Legislature had before it several provisions of the Constitution, in each of which roads and bridges were separately mentioned. See section 2, art, 11; section 24, art. 16; section 56, art. 3; section 9, art. 8. As a general thing, the same word is supposed to be used in tlie same sense wherever it occurs in a Constitution. Cooley’s Constitutional Limitations (7th Ed.) p. 95. This rule is of little force when a word is used in different meanings; but when, as in our state Constitution, the word “roads” has uniformly been used in a sense which did not include bridges, it seems such fact is one of considerable cogency in determining the meaning of the word “roads” as used in the amendment under consideration.

The same Legislature also passed an act amending article 877, R. S. 1895. See Acts of 1903, 1st Called Session, p. 9. This amendment was for the purpose of providing that bonds could be issued for improving and maintaining the public roads; said article theretofore having only provided for bridge bonds. In amending the article, the Legislature carefully made provision for both bridge and road bonds, and permitted an election for the two purposes as one proposition. This act shows that said Legislature was fully conversant with the fact that roads and bridges had been mentioned separately in our Constitution and statutes, and that when it provided for both purposes it realized the necessity of saying so in plain and apt language.

Many acts of prior Legislatures are cited by both sides in an effort to substantiate their contentions, and while we have read and carefully considered all of the same, it would unduly extend this opinion to discuss to any extent such acts. The word “road” has been often used, and sometimes it has been given a very broad meaning; but invariably, when provision was made for the creation of roads and a necessity existed for bridges, the right to construct same was specially given. In all general statutes and constitutional provisions providing for the creation of roads and bridges, the building of bridges is separately mentioned. In statutes relating to the working of public roads, the word “road” has been given a meaning broad enough to include all of the public highway, including bridges. Some of the provisions examined by us are the following: Articles 6966, 6977, 6959, 6934, 642, 2254, and 2241, R. S. 1911.

Our attention has been called to several acts of succeeding Legislatures dealing with the amendment, from which a construction thereof may be deduced; but in the main these acts have been of a local character, and sometimes different constructions must be deduced from acts of the same Legislature. See Acts 32d Leg. c. 87; Special Laws 33d Leg. Reg. Session, cc. 72, 112, and 154; resolution for amendment of section 52 of article 3, passed by 33d Leg., adding the word “bridges” to subdivision (e), Gammell’s Laws, vol. 16, p. 457. Under the rules relating to legislative construction, we consider the acts cited to be of no assistance in determining the issues in this case. It has also been contended that the Attorney General’s department has construed section 52 of article 3 in accordance with appellees’ views by approving a bond issue to build a “causeway” across Nueces Bay. An investigation of the bond record discloses that said election was for the purpose of determining whether a “causeway or combination bridge and roadway” should be constructed. Nothing was said about “macadamized,” “graveled,” or “paved” roads, and the bond issue was limited to such an amount that the tax authorized by article 8, section 9, of the Constitution, for the building of roads and bridges, was not exceeded. In fact, a tax not exceeding 10 cents was voted, and only 7 cents levied. It is apparent that no sucb question as we have before us was passed upon by tbe Attorney General’s department.

Appellees rely strongly upon tbe case of Dallas County v. Plowman, 99 Tex. 513, 91 S. W. 221, in wbicb it was beld that tbe amendment to section 9 of article 8 of tbe Constitution, adopted in 1890, providing for an additional levy of tax for tbe maintenance of public roads, should not be beld to mean that tbe funds could only be used to repair existing roads, but should be given tbe broader meaning of authorizing tbe funds to be used for all purposes necessary to increase tbe capacity. of tbe county to maintain a system of public roads. Tbe court was construing tbe word “maintenance,” and not tbe word “roads.” It did not bold, and we do not think it will bold, that tbe word “roads,” used in that amendment, means roads and bridges.

It is true, after we have made use of all the lights which the instrument itself affords, if there be doubts to clear up and ambiguities to explain, we may look at tbe object to be accomplished by the .clause in which tbe ambiguity is met with. That rule cannot be invoked to add to a plain grant of power merely because we think it would have been wise for tbe grant to have been increased. It is always an easy matter after-wards to see how improvements could have been made in giving a power; bnt when the power is expressed in plain words it cannot be extended. To charge the Legislature with an intent to provide for the erection of bridges upon such a far-fetched theory, when it could have, and as a body of sensible men would have, added the words “and necessary bridges,” imputes to that body unusual foresight in seeing difficulties and extraordinary carelessness in meeting and obviating tbe same. Surely, if they thought at all about bridges being necessary, and decided to allow tbe construction thereof, as men of common sense, they would have added tbe words necessary to make their intention clear.

It is also contended that as the amendment was for tbe public welfare or convenience, for the construction of works of great public utility, it should be liberally construed, and that therefore the word “roads” should be held to include bridges. To this contention we consider tbe language of Mr. Justice Dibrell, speaking for the Supreme Court in the case of Simmons v. Lightfoot, 105 Tex. 212, 146 S. W. 873, in discussing this same amendment, furnishes an appropriate answer, viz.:

“Whatever may be the consequences of this construction placed upon the Constitution to cheek or thwart public improvement, we can only answer that our duty as a court is to construe the language of that instrument in its ordinary sense and clear import. If it was the design and purpose of those who framed the section of the Constitution to authorize the creation of a debt not to exceed one-fourth of the assessed value of the real property situated in each of such districts for each of the said purposes, it should have been so written. Since it has not been so written, it is not within the power of this court to interpolate such a meaning.”

We conclude that the words “macadamized, graveled or paved roads,” used in the amendment under consideration, cannot be construed to have been used with the intention of their being the equivalent of the words “roads and bridges.” If the amendment be held to mean bridges, the Legislature which passed the laws putting it into effect, and used the same language (see articles 627 and 628, R. S. 1911), would be held to intend the same meaning, and the order for the election could be drawn in the same general way. After the election at which the taxpayers had voted their views on a proposition reading “for the construction of macadamized, paved, or graveled roads,” the authorities could use the funds to build a bridge. Surely the Legislature which framed the amendment did not intend to make possible such an imposition upon the people. In this ease the people of Aransas county knew exactly what they were voting on; but the fact that abuse could be made of the power, if given as contended for by appellees, is a circumstance to be considered in arriving at the intention of the framers of the amendment.

Appellees contend further that, if the word “roads” is held not to include a bridge, then the power given to build a road by implication carries the power to build bridges. They say that,. as the amendment provided fo,r the construction of roads in “any definite district now or hereafter to be described and defined within the state,” it by necessary implication gave the right to erect bridges, because, if not, then there is no provision of law which authorizes a ta-x levy to build bridges in such district, and therefore the road would be useless. It occurs to us that this theory is rather far-fetched. There is no law which would prohibit the counties from erecting bridges, although used as a part of a macadamized road running through a defined district made up 6f several counties or portions of counties. Such a road would be a great help to each county through which it ran, and surely the Legislature would not take it for granted that the commissioners’ courts of such counties would necessarily refuse to build bridges. It is true, if a turnpike was being built by private capital, the commissioners’ court would refuse to build bridges; but the Legislature might well have considered that, if the taxing district aided the private enterprise to construct the road, such enterprise might well afford to build bridges itself — the presumption being that it had some capital.

Again, there are many counties in the state in which there are no bridges over streams of considerable magnitude which are crossed by public roads, and it may not bave occurred to tbe Legislature to provide for bridges as well as roads. There is no merit in the contention that a road without bridges over the streams would be worthless, and therefore the power to build bridges must by necessary implication accompany the power to build roads. There was a time when we had roads all over this state and did not find them useless, although the streams had to be forded, and in many portions of the state those conditions still exist. The macadamized, graveled, and paved roads would be a valuable asset without bridges, and, while bridges would add greatly to the value of the roads, it must be rem’embered that we cannot add to a grant of authority further authority, because it would make the grant more valuable, but can only imply the giving of such rights as will be necessary to make the grant effectual. “The implication under this rule must be a necessary, not a conjectural or argumentative, one.” Cooley on Constitutional Limitations (7th Ed.) p. 98. The Constitution cannot be extended to meet particular cases in which, owing to unforeseen difficulties, the grant of power may not be of much value.

The petition shows that no macadamized, graveled, or paved road or causeway can be built across Aransas Bay without erecting a bridge 3,033 feet long, and that the election was called for the particular purpose of building a structure of that kind across said bay. This being the case, it clearly appears that the election was held for a purpose not authorized by law, and that the proposed bonds will be invalid, and the issuance thereof should be enjoined. A causeway, as defined by Webster, would undoubtedly be a part of a road, within the meaning of the Constitution; but a causeway such as is designed to be built in this case is, to the extent of 3,033 feet, a bridge.

The judgment of the trial court is reversed, and the cause remanded, with instructions to issue a temporary injunction, enjoining the issuance of the bonds as prayed for.
      <g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: FLY, C. J.

text:
    COLEMAN-FULTON PASTURE CO. et al. v. ARANSAS COUNTY et al.
    (No. 5629.)

    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 3, 1915.
    Rehearing Denied Dec. 1, 1915.)
    1. Counties <&wkey;153% — Securities—Issuance oe Bones — Divehsion oe Proceeds — “Bridges’ ’ — “Roads. ’ ’
    Where the people of a county voted bonds to construct, maintain, and operate macadamized, graveled, or paved roads, the diversion of over half the funds realized from the sale of the bonds by county authorities to the building of bridges and causeways necessary to effectuate the highway improvement will be restrained, since the Constitution does not authorize the issuance of county bonds for the construction of bridges, while “bridges” are not roads.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 221, 222; Dec. Dig. &wkey;153%.
    For other definitions, see Words and Phrases, First and Second Series, Bridge; Road.]
    2. Counties <&wkey;153% — Securities — Issuance oe Bonds — Diversion oe Proceeds— “To Pave” — “Paved Roads.”
    Where the people of a county voted bonds to construct and operate macadamized, graveled, or paved roads, the county authorities were authorized by the Constitution to use the funds realized from the sale of the bonds to erect shell roads, which are “paved roads,” within the provision of the Constitution authorizing the bond issue, since “to pave” means to lay or cover with stone, brick, or other material to make a firm, level, or convenient surface for horses, carriages, or persons on foot to travel on, so that the words “paved roads” include roads made of shell or mud shell.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 221, 222; Dec. Dig. &wkey;153y2.
    For other definitions, see Words and Phrases, First and Second Series, Pave.]
    Appeal from District Court, Bee County; F. G. Chambliss, Judge.
    Suit by the Coleman-Fulton Pasture Company and others against Aransas County and others to restrain a diversion of money voted for the construction of roads. From an order dissolving a temporary injunction, plaintiffs appeal.
    Judgment reversed, and cause remanded, with instructions.
    Proctor, Yandenberge, Grain & Mitchell, of Victoria, Templeton, Brooks, Napier & Ogden, of San Antonio, for appellants. E. A. 'Stevens, of Rockport, Dougherty & Dough-erty, B. D. Tarlton, Jr., and H. S. Bonham, all of Beeville, and A. J, Parker, of San Antonio, for appellees.

      Writ of error pending in Supreme Court.

   FLY, C. J.

This is an appeal from an order dissolving a temporary injunction, which had been granted to restrain appellees from diverting certain money derived from the sale of $25,000 worth of bonds, voted by the people of Aransas county for the purpose of constructing, maintaining, and operating macadamized, graveled, or paved roads, from that purpose to that of building bridges and building roads with shell or mud shell. A temporary restraining order was granted, but upon hearing the facts the order was dissolved.

The facts show that over one-half the funds realized from the bond issue were to be used by appellees in erecting bridges, a purpose for which the bond issue was not authorized by the Constitution or the vote of the people. We need not enter into a discussion of this point, for in a thoroughly considered opinion of this court in a companion case it was held that funds voted as these were cannot be used to build bridges. Coleman-Fulton Pasture Co. v. Aransas County, 180 S. W. 312, not yet officially published. The question is not whether the county can use such funds for building necessary culverts and causeways in order to render public roads safe and suitable for use, but tbe naked question: Can money voted under the Constitution to construct macadamized, graveled, or paved roads be diverted to the purpose of building bridges? It may be that if the money, or a portion thereof, voted for road purposes, is not used for the erection of bridges, the whole object and intent of the voters is destroyed; but that cannot deter a court from upholding and maintaining the Constitution, which has not authorized such use. That instrument has definitely given the grant of power, and that far and no further can counties of the state go. The Constitution is plain and unequivocal in granting the power, under such bond issues, to construct roads, and bridges are not roads, however essential a part they may be in linking together parts of a road or roads, and rendering them fit for use. This construction of the constitutional grant may retard progress and work hardship upon counties; but it is the plain and obvious meaning of the Constitution, which this court is bound to uphold and maintain.

We are of opinion that appellees have full authority to use the funds arising from the sale of the bonds to construct, maintain, and operate roads, whether they be macadamized, graveled, or paved, and as there was sufficient testimony to show that the shell roads to be erected were paved roads, within the contemplation of the Constitution, the court properly refused to restrain appellees from using the money to construct such roads. “To pave” is defined by Webster’s Unabridged Dictionary:

“To lay or cover with stone, brick, or other material, so as to make a firm, level, or convenient surface for horses, carriages, or persons on foot, to travel on.”

The testimony shows that shell or mud shell will make a hard, smooth road, that is durable and lasting. The words “paved roads,” we think, are broad enough to include roads made of shell or mud shell. It cannot be supposed that the Constitution meant to confine the words to roads with solid toppings, as asphalt or concrete, because it is well known that such materials are never used in Texas in building public roads, but are used only in towns and cities. Macadamized and graveled roads are mentioned, and then, as comprehending all other roads, the word “paved” was used. We think appellees have the right and authority to expend the money arising from the bond issue in the construction and maintenance of roads built, as indicated in the testimony, of shell or mud shell. The evidence was positive that shell roads are “paved roads.”'

The judgment is reversed, and the cause remanded, with instructions to the trial court to issue a temporary injunction restraining appellees from using the funds arising from the bond issue in building bridges, but not as to the roads, as prayed for in the application of appellants.
      (g^jFor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MIDDLEBROOK, J.

text:
    PADGETT v. H. P. PRATT & SON.
    (No. 3.)
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 18, 1915.)
    Courts <&wkey;488 — Reheabins after Transfer of Cause — Statute.
    Under Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1641, providing that any party desiring a rehearing of any matter determined by a Court of Civil Appeals may, within 15 days after the date of entry of judgment, file with the clerk of court his motion in writing for rehearing, etc., where a case was transferred by the Suj preme Court from the First Supreme Judicial District to the Ninth, and appellant, eight months after the Court of Civil Appeals of the First District- had ordered the bills of exceptions stricken, moved to -vacate the judgment, such motion could not be considered by the Court of Civil Appeals of the Ninth Supreme Judicial District, since it would have come too late for consideration if made in the court of the First District.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1316-1323; Dee. Dig. &wkey;488.]
    Appeal from Sabine County Court; J. B. Lewis, Judge.
    Action by H. P. Pratt & Son against E. P. Padgett. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    E.'P. Padgett, of Hemphill, pro se. Hamilton & Minton, of Hemphill, for appellees.
   MIDDLEBROOK, J.

This cause was tried in the county court of Sabine county, Tex., and judgment rendered therein on the 2d day of December, 1914, in favor of the plaintiffs for the sum of $202.35, with legal interest thereon. Appeal was perfected to the First Court of Civil Appeals at Galveston on the 22d day of December, 1914.

On the 5th day of January, 1915, appellant filed in the trial court his bills of exceptions and statement of facts. On March 12, 1915, appellees filed motion in the First Court of Civil Appeals, at Galveston, to strike out appellant’s bills of exceptions, and also the statement of facts. On March 24, 1915, appellees’ motion to strike out the statement of facts and bills of exception was submitted before the honorable Court of Civil Appeals at Galveston, and on March 25th that court sustained the motion as to the bills of exceptions, but overruled the motion as to the statement of facts. On October 15, 1915, appellant filed its motion in form of an affidavit, in this, the Ninth Court of Civil Appeals, to arrest and set aside the judgment of the Court of Civil Appeals for the First Supreme Judicial District, at Galveston, rendered on the 25th day of March, 1915, on appellees’ motion to strike out the bills of exception, which motion, on being submitted to this court, was taken with the case.

We have made this full statement of the proceedings heretofore had in this cause, not that this court has any inclination to review the judgment heretofore entered by the Court of Civil Appeals at Galveston, but in order to show a complete record and disposition of the cause.

The motion to set aside the order heretofore made on the 23d day of March, 1915, by the honorable Court of Civil Appeals at Galveston was not filed until nearly eight months after said order was entered.

Article 1641, Vernon’s Sayles’ Civil Statutes, provides:

“Any party desiring a rehearing of any matter determined by said courts, may within fifteen days after the date of entry of the judgment or decision of the courts, or the filing of the findings of fact and conclusions of law, file with the clerk of said courts his motion in writing for a rehearing thereof, in which motion the ground relied upon for the rehearing shall be distinctly specified, and the name and residence of the counsel of the opposing party if known, and if not known then the name and residence of the opposing party, as shown in the record.”

Under this statute, and the numerous decisions of the courts, if the case had never been transferred by the Supreme Court from the First Supreme Judicial District to this, the Ninth Supreme Judicial District, appellant’s motion to vacate the judgment would be too late for consideration in the First Court of Civil Appeals, and said court would not be warranted in considering the same, to review its own work, and certainly this court would not be warranted in so doing. Hence appellant’s motion to vacate and hold for naught the judgment by the honorable Court of Civil Appeals for the First Supreme Judicial District is overruled.

This suit was brought within statutory time, and the cause of action is not barred by limitation. It was brought in the proper forum, and there are abundant facts to support the findings of the jury and the judgment of the court, and appellant’s bills of exceptions having been stricken out, and, no error apparent of record, or fundamental error apparent, the case must be affirmed.

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