author: FLY, C. J.

text:
    TERRELL, Comptroller of Public Accounts, v. MIDDLETON.
    (No. 5689.)

    (Court of Civil Appeals of Texas. San Antonio.
    June 14, 1916.
    Rehearing Denied June 29, 1916.)
    1. States i&wkey;168% — Injunction—Action-Right op Action.
    A citizen and taxpayer may institute and maintain an action to restrain state officers from performing illegal and unauthorized and unconstitutional acts, since, when a state officer acts without legal authority, he is not acting for or in the interest of the state, and suit against him is not a suit against the state.
    [Ed. Note. — For other cases, see States, Dec. Dig. &wkey;168%.]
    2. States <&wkey;168:<4 — Injunction—Grounds— Public Offices — Acts Which May be
    RESTRAINED-STATUTE.
    Rev. St. 1911, art. 5732, providing that no court shall have the power, authority, or jurisdiction to issue the writ of mandamus or injunction or any other mandatory or compulsory writ of process against any of the officers of the executive department of the government to compel the performance of any act, or duty which they are by law authorized to perform, does not deprive the district court of power to restrain the performance of an illegal or unconstitutional act by a state officer, since there is a distinction between compelling an officer to perform a legal duty and restraining him from carrying into effect an illegal act.
    [Ed. Note. — For other cases, see States, Dee. Dig. &wkey;108%.]
    3! States ■&wkey;168% — Taxpayers’ Action-Jurisdiction — District Court — Statute.
    In view of Rev. St. 1911, art. 1526, as revised by Acts 33d Leg. c. 55, authorizing the Supreme Court t-' issue warrants of quo warranto or mandamus against any district judges or state officers except the Governor, the District Court, which is one of general jurisdiction, retains jurisdiction to issue an injunction against a state comptroller to restrain him from issuing warrants on the state treasurer covering expenditures made by the Governor.
    [Ed. Note. — For other cases, see States, Dec. Dig. &wkey;sl6S%.]
    4. Constitutional Law &wkey;>70(l) — Encroachment on Legislature — Right to Determine Constitutionality op Statute.
    It is settled beyond recall that the courts, state and federal, have the power to pass upon the constitutionality of statutes and the authority to ultimately destroy or enforce laws passed by the legislative branch of the government.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 129, 132, 137; Dec. Dig. &wkey;70(l).3
    5. Constitutional Law <&wkey;67 — Distribution oe Powers — Legislature.
    When discretion is confined to any one branch of the government, a decision upon that particular point cannot be questioned or revised.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 123; Dec. Dig. <i&wkey;(>7.] ■
    6. States <&wkey;60 — Compensation op Govern- or — Statutes — Construction — Constitutional Provisions.
    An act passed February 11, 1915 (Acts 34th Leg. e. 9), making an appropriation covering deficiencies for fuel, water, lights, etc., for the Governor’s mansion, but including items for food, automobile repair, punch, water, hire, and coal, for the Governor’s private use, is violative of Const', art. 4,-§ 5, providing that the Governor shall receive as compensation for his services an annual salary of $4,000 “and no more” and shall have the use and occupation of the Governor's mansion, fixtures, and furniture; and Const, art. 16, § 6, providing that no appropriation for private individual purposes shall be made.
    [Ed. Note. — For other cases, see States, Cent. Dig. §§ 43, 61, 63; Dec. Dig. &wkey;60J
    7. Constitutional Law &wkey;>26 — Construction of Constitution.
    A state Constitution should be liberally construed in contradistinction to a strict construction of the federal Constitution.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 30; Dec. Dig. <&wkey;>26.]
    8. States <®^120 — Debts—Statutes—Construction — Constitutional Provisions.
    Under Const, art. 3, § 49, providing that no debt shall be created by or on behalf of the state except to support casual deficiencies of revenue, and Rev. St. 1911, art. 4342, authorizing appropriations to cover deficiencies, a bill making an appropriation for water, fuel, lights, etc., for the Governor’s mansion, and covering items for food, liquors, engraved cards, and invitations for the Governor’s private use, is invalid.
    [Ed. Note. — For other cases, see States, Cent. Dig. § 119; Dec. Dig. &wkey;120.]
    9. Constitutional Law <&wkey;00 — Powers of Legislature.
    A Legislature has plenary powers subject only to constitutional limitations.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 48, 49; Dee. Dig. &wkey;j50.]
    10. States <&wkey;119 — Limitation on Credit of State — Constitutional Provisions.
    A bill appropriating money to pay bills contracted by the Governor for water, fuel, lights, etc., for - the Governor’s mansion, containing items for food, liquors, groceries, and automobile repairs for the Governor’s private use, is violative of Const, art. 3, § 50, providing that the Legislature shall have no power to authorize the giving or lending of the credit of the state for the payment of the liabilities of an individual.
    [Ed. Note. — For other cases, see States, Cent. Dig. § 118; Dec. Dig. &wkey;119.]
    11. Constitutional Law &wkey;>43(l) — Enforcement of Constitutional Provisions.
    Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the Constitution and appointed judicial tribunals to enforce it.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. § 41; Dee. Dig. <&wkey;> 43(1).]
    Appeal from District Court, Travis County; Geo. Callioun, Judge.
    Suit for injunction by W. C. Middleton against H. B. 'Terrell, Comptroller of Public Accounts of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Pat M. Neff, of Waco, for appellant. John W. Hornsby, of Austin, for appellee.

      Application for writ of error pending in Supreme Court.

   FLY, C. J.

This is a suit by appellee against the comptroller of public accounts of Texas to restrain Mm from issuing warrants on the state treasurer, covering certain expenditures made and incurred by O. B. Col-quitt, while occupying the office of Governor of the state of Texas. The items of expenditure and bills of expense incurred by said Governor began in June, 1914, and were for gas, ice, telephones, “merchandise,” automobile repair to machine (the private property of the- Governor), food for horses privately owned by him, chickens, vegetables, butter, eggs, gasoline, “groceries,” bread, cakes, meat, “horse shoeing,” “invitation cards and envelopes” for private use, “chicken salad,” Saratoga flakes, punch, waiter hire, and coal. It was alleged that the amounts due for such articles could not be made the basis of claiffis against the state of Texas, and were in direct contravention of section 5, art. 4, of the state Constitution, which provides for the compensation of the Governor, and that the Legislature had no power or authority under that article to make, but is prohibited thereby from making, an appropriation for such purposes, as well as by section 51, art. 3, of the Constitution, which provides that:

“The Legislature shall have no power to make any grant, or authorize the making of any grant of public money to any individual, association of individuals, municipal or other corporation whatsoever.”

Appellant filed general and special exceptions to the petition, and alleged that the articles itemized and set-out were purchased by O. B. Colquitt, as Governor, and not for his private purposes; that an appropriation was made by the Legislature on February 11, 1915, to cover deficiencies for “fuel, light, water, groceries and incidentals for the Governor’s mansion and grounds”; and that the comptroller was authorized to issue his official warrants for the debts enumerated in the petition. It was further pleaded that all the debts were created by virtue of article 4342, Revised Statutes, which provides for the creation of deficiencies and pay therefor. The most of the answer consisted of legal deductions and conclusions, few facts being pleaded.

A temporary injunction was issued, and the cause was afterward tried by the court without a jury, and the temporary injunction was perpetuated as to the account of the Dris-kill Hotel for $76.50 for punch, as to account of Driskill Hotel for 15 gallons of chicken salad $90, 5 gallons of olives $7.50, 2 cases of Saratoga flakes $2, almonds $7.50, and case for same $2, 12 gallons coffee $6, sugar $1.50, 14 pounds of mints $8.40, lettuce $5, waiters $12.50, and cooks and helpers $13, amounting in the aggregate, after deducting $3 for olives returned, to $152.40; as to account of Tobin Book Store for 500 engraved and embossed invitations $32.50, and 500 embossed cards and envelopes $21, amounting to $53.50; as to account of W. A. Achilles, & Go. for $98.50 for groceries; as to account of Maer-ki’s Bakery for $14.20 for groceries; as to account of Excelsior Meat Market for $12; as to account of Bryant Bros, for $2.50; as to account of W. J. Forster for $62.45. The temporary injunction was dissolved as to other items, consisting of charges for water, lights, telephone service, and perhaps other things.

The first assignment of error assails the action of the trial judge in overruling an exception questioning the authority of a taxpaying citizen to institute and maintain a suit to restrain the comptroller from issuing warrants; the reasoning being thht the plaintiff has no interest in the subject-matter of this suit, and that the “pleadings affirmatively show that he has no interest in the suit other than as a citizen and as a taxpayer in general with other citizens and other taxpayers.” The allegations affirmatively showed that appellee as a citizen of Texas and a taxpayer had the right, power, and authority to institute and maintain a suit to restrain state officers from performing illegal, unauthorized, and unconstitutional acts. When a state officer acts without legal authority, he is not acting for or in the interest of the state, and a suit against him is not a suit against the state. In deciding who are parties to the suit the court will not look beyond the record. Making a state officer a party does not make the state a party, although her law may have prompted his action, and the state may stand behind as a real party in interest. A state can be made a party only by shaping the bill expressly with that view, as where individuals or corporations are intended to be put in that relation. Osborn v. U. S. Bank, 9 Wheat. 738, 6 L. Ed. 204. To the same effect are United States v. Lee, 106 U. S. 196, 1 Sup. Ct. 240, 27 L. Ed. 171, and Conley v. Daughters of Republic, 151 S. W. 877. In the latter case a writ was granted and the judgment reversed, but in the remarkable opinion by the Supreme Court nothing was said against the holding that the suit was not one against the state.

Appellee was seeking to- prevent the diversion of taxes collected by the state, a portion, no matter how small, of which had been paid by appellee. Citizens are allowed to prevent, by injunction, the collection of illegal taxes, and the reasons for allowing them this power are no stronger than to allow restraint of an officer who seeks to expend the taxes when collected for an illegal or unconstitutional purpose. The diversion of the taxes after collection from legal purposes would be equally as injurious to the taxpayer as the collection of illegal taxes. In either event, the burdens of the taxpayer are increased. As said by the Supreme Court of the United States in Crampton v. Zabriskie, 101 U. S. 609, 25 L. Ed. 1070, and quoted and approved by the Supreme Court of Texas in City of Austin v. McCall, 95 Tex. 565, 68 S. W. 791:

“Of the right of resident taxpayers to invoke the interposition of a court of equity to prevent an illegal disposition of the moneys of the county, or the illegal creation of a debt which they in common .with other property holders of the county may otherwise be compelled to pay, there is at this day no serious question. * * * Certainly in the absence of legislation restricting the right to interfere in such cases to public officers of the state or county, there would seem to be no substantial reason why a bill by or on behalf of individual taxpayers should not be entertained to prevent the misuse of corporate powers.”

The" district court is one of general jurisdiction, and, unless original jurisdiction of any case is specially given by law to some other court, it can exercise jurisdiction over it. Therefore, unless the exclusive authority to try any case similar to the one at bar is given to some court other than the district court, it has the right, power, and authority to hear and determine it.

In 1881, an act was passed by the Seventeenth Legislature providing:

“No court of this state * * * shall have power, authority or jurisdiction to issue the writ of mandamus or injunction or any other mandatory or compulsory writ or process against any of the officers of the executive departments of the government of this state to order or compel the performance of any act or duty which, by the laws of tljiis state, they, or either of them, are authorized to perform, whether such act or duty be iudicial, ministerial or discretionary.” Gammell’s Laws of Texas, p. 7.

By the terms of that law no court could compel, by any writ, the performance of any act or duty of any state officer; hut it is not even hinted that the district court would not have the power and authority to restrain the performance of an illegal and unconstitutional act by a state officer. There is a marked difference in compelling the performance of a duty and the prevention of the violation of a law to the prejudice of a taxpayer. The act of 1881 is embodied in tbe Revised Statutes of 1911, as article 5732.

In 1892, after an amendment to tbe Constitution in 1891, an act was passed authorizing tbe Supreme Court, in term time or vacation, to issue writs of quo warranto or mandamus against any district judge or officer of the state government, except the Governor of the state. The law in question, which is article 1526, Revised Statutes 1911, was amended in 1913, page 107 Laws of Regular Session, by inserting “or Court of Civil Appeals, or judge of a Court of Civil Appeals.” In this law the power to issue injunctions against a state officer is not given, the only power being to issue writs of quo warranto or mandamus. It follows that in the absence of special power, authority, and jurisdiction being lodged in the Supreme Court, or some other court, to enjoin a state officer from a violation of tbe Constitution, tbe law has vested that authority in the district court, the only court of general jurisdiction in the state. The Supreme Court can only enforce the performance of a legal duty, but has no authority to-enjoin the execution of an act except in protecting its jurisdiction. If the Supreme Court has no jurisdiction to act in a case like this, then to whom can the taxpayer look for redress except to the district court to whom all jurisdiction is given, except that specially confided to other courts? There is nothing to the contrary in the cases of Bledsoe v. Railway, 40 Tex. 564, Messner v. Giddings, 65 Tex. 301, and McKenzie v. Baker, 88 Tex. 677, 32 S. W. 1038, cited by appellant. -Appellant does not seem to recognize the, distinction between compelling an officer to perform a legal duty and restraining him from carrying into effect an illegal act. This is undoubtedly the construction placed upon the law by the Supreme Court. Teat v. McGaughey, 85 Tex. 478, 22 S. W. 302. The Supreme Court has never attempted, as an act of original jurisdiction, to restrain the infraction of a law or the Constitution upon the part of any one. Our view .of the matter is fully sustained in a clear and exhaustive opinion of the Court of Civil Appeals of the Third District, delivered through Judge Key. Kaufman County v. McGaughey, 3 Tex. Civ. App. 655, 21 S. W. 261. In that case the Commissioner of the General Land Office took the same position assumed by the comptroller in this, and the court said:

“In this suit it is not sought to compel either of the defendants to do any act or perform any duty which they are authorized to perform; but, on the contrary, the gist of the plaintiff’s case lies in the averment that the acts complained of have been, or will be, committed without and in excess of lawful authority. Manifestly, if, prior to the passage of the statute in question, the district courts were clothed with power to restrain the officers designated therein from the commission of acts without and beyond lawful authority, this statute was not intended to abridge or affect such .power. The defendants, by excepting to the court’s jurisdiction, deny its power to determine whether or not the acts are within the scope of lawful authority; and 'this denial rests solely upon the fact that the petition shows one of the defendants to be the head of one of the executive departments of the state. This contention involves the proposition that if such officers choose to exceed their powers, however much the excess or great the injury, the courts cannot interpose to prevent them.”

That court held, as we do, that the district court had jurisdiction.

In the case of Sterrett v. Gibson, 168 S. W. 16, this court, in passing upon the statute which clothes the Supreme Court with authority to issue writs of quo warranto or mandamus to heads of departments, held:

“The exclusive jurisdiction of the Supreme Court is confined to cases in which it is sought to compel an officer of the executive department to do or perform an act or acts enjoined upon him by the laws of the state, and the statute does not apply to cases in which the rights of persons or property are invaded by such officer. In such cases, swift, decisive action is demanded, and redress would be practically denied for trespasses and torts committed by members of the executive department. What act or duty is appellee seeking to order or compel the commissioner to perform that is authorized by the laws of Texas? He is not seeking to compel him to perform any act or duty, but to restrain him from performing an act or duty enjoined upon him by the laws of the $tate, which appel-lee claims are invalid.”

A writ of error was denied in that case by the Supreme Court.

The first assignment of error has no merit and is overruled.

The second assignment of error assumes that nothing can be held unconstitutional by a court that had met with the sanction of a legislative body. To accede to such a proposition would be to hold that the Supreme Court of the United States for over a century has been usurpiug power and playing the part of a tyrant in passing upon the constitutionality of laws passed by the Congress of the Union. Whatever doubts may have existed at one time as to the authority of courts to decide upon the constitutionality of statutes, that matter has been definitely settled in favor of the affirmative, and while it may be a subject of regret that the court of last resort has seemed desirous at times of usurping the full powers of the government, and laying itself open to the charge of shaping the policies and principles of our government, the fact has been settled beyond recall that courts, federal and state, have the authority to ultimately destroy or enforce laws passed by the legislative branch of the government. The matter is too well settled now for this court to desire to enter into a discussion of it. The assignment of error raising this point is not followed by proposition or authorities that have any pertinency or relevancy to the matters sought to be raised by the assignment, and it, as well as the third assignment, which is like unto it, is overruled. If an act of the Legislature is unconstitutional, the sanction of that body, although reinforced by the approval of the Governor, cannot infuse into it vitality and validity. To so hold would be to hold that no act of the Legislature which has met with executive approval could ever be attacked. In other words, it would clothe Legislatures with infallibility. No such doctrine has ever been promulgated by any Texas court. No one disputes the- proposition laid down. in March v. State, 44 Tex. 64, and cognate cases; the only proposition being that, when a discretion is confided to any one branch of the government, a decision upon that particular point cannot be questioned or revised. No court would hold that, if a Legislature voted to give the Governor $10,000 a year as salary, such act could not be inquired into because it had met with legislative and executive sanction, and yet that is, in its ultimate analysis, the contention of appellant. If an act of the Legislature is not sanctioned by the Constitution, no legislative approval can make it valid, or render it immune from attack in the courts of the country.

The fourth, fifth, sixth, and seventh assignments of error are grouped, and they embody the proposition that the Constitution of Texas permits and authorizes the appropriation of moneys of the state to purchase the groceries, the gasoline, the stationery to be used for social functions, and other articles of comfort, necessity, and luxury desired by the Governor. This brings us to the consideration of the only vital point in this case, tlie others considered by us being mere technical matters as to parties and as to the powers of district and appellate courts. To properly understand the points of contention in this case, it will be interesting and instructive to call to mind the circumstances under which the present Oonstitution was adopted.

It is within the memory of older citizens, and known to all intelligent citizens through the medium of history, that after the close of the fratricidal strife between the North and South, in 1SC5, when the starved and beaten armies of the South returned to their desolated homes to struggle for a livelihood for their impoverished families, a horde of adventurers, aided by citizens who had opposed secession, filled with hatred for our people and seeking for spoils, with the backing of the strong arm of the military, and aided by the disfranchisement of the whites and the enfranchisement of the negroes, seized the reins of government and engaged in exploiting the state and directing its affairs for the financial as well as political benefit of the flotsam and jetsam cast by the chances of war upon a helpless people. The citizens were burdened with oppressive taxes, which were used in the interest of office holders raised to power by an irresponsible, ignorant, and vicious electorate, and the rights of those bearing the burdens laid on them by the political party that had seized the reins of government were ignored and trampled upon. In 1873, when the burdens had reached their limit, when an armed constabulary of former slaves surrounded the polls and sought to intimidate the whites, the freemen of Texas went to the polls and recorded their condemnation of the state administration and elevated Richard Coke to the governorship. The first efforts of the enfranchised citizens of Texas were to obliterate the Constitution foisted upon them largely by renegades, carpetbaggers, and scalawags, and to re-establish a free government. A constitutional convention was called and met in the city of Austin, on September 6, 1875, which framed the present Constitution. The farmers of Texas constituted a large proportion of that convention, and, writhing under the exactions and extortions of the state government forced upon them, the pendulum swung from the extreme of riotous and irresponsive expenditure of public money to the extreme of close economy, if not penuriousness. All kinds of expenses were cut down, and every constitutional bar to extravagance that could be anticipated was inserted in an instrument which when completed had more the appear-’ anee of a code of laws than an enunciation of organic principles upon which to build the laws. The desire for economy caused the convention to provide salaries which wore small and insignificant even in that day of cheap living, and which in modern times have become niggardly and .utterly insufficient. So anxious were the members of that convention to hold down salaries and enforce strict economy, that they provided that the Govern- or of this imperial domain, containing more than 265,000 square miles, larger in extent than any government of Europe except Russia, should receive a beggarly salary of $4,000 per annum. They provided in article 4, § 5:

“He shall, at stated times, receive as compensation for his services an annual salary of $4,000.00.”

And then, as if to anticipate a spirit of liberality or extravagance in the future, they command that he shall receive that sum “and no more,” and then graciously added “and shall have the use and occupation of the Governor’s mansion, fixtures and furniture.”

A reference to the journal of the convention shows that John H. Reagan sought to have the words, “and no more,” stricken from the provision as to the salary of the Governor; but it was voted down.’ The committee appointed to draft the Oonstitution reported in favor of a salary of $5,000 for the Governor, but by a vote of 44 to 32 it was reduced to $4,000. It was then attempted to append after the words, “and no more,” the words, “until otherwise provided by law,” which attempt was promptly v.oted down. In section 5 as reported, the word, “also,” preceded, “the use and occupation of the Governor’s mansion”; but it was stricken out. These acts of the convention tend to show that it was the determination and desire of the constitutional convention that the Governor should receive as compensation the sum of $4,000 and no more. It is to be regretted that the debates of that convention were not preserved, as they would illuminate the different portions of the Constitution and give an insight into the intent and desires of those composing the convention. One thing is apparent, however, not only from the plain and unequivocal words of section 5, but from the meager report of the proceedings of the convention, that it was the object and desire to confine the pay and emoluments of the Governor to $4,000 “and no more.” Many of the delegates were desirous of cutting the Governor’s salary from $4,000 to $3,000, and it was actually reduced from $5,000 as proposed by the committee to $4,000. We find that a delegate sought to ingraft on section 5 the sentence, “He shall receive no fees or perquisites, or extra compensation for the performance of any duties connected with his office” ; but it was rejected. In the absence of the debate on the question, it cannot be definitely determined whether it was desired that he should receive perquisites or extra compensation, or whether it was thought that the words used were sufficiently comprehensive to cover the desired amendment. Erom the economical, if not parsimonious, trend of the convention, we are inclined to think that the last interpretation is more reasonable. The spirit of economy seems to have permeated and dominated the convention, not only as to salaries, but as to advertising the resources of the state and as to all the affairs of the state government. The journal shows such recitations as “the present constitutional convention having reduced their salaries three-eighths of the original amount, of that which was paid members of the Legislature, 'and have promised their constituents and the people generally to practice rigid retrenchment.’’ “Retrenchment” was the watchword of the hour, and everything was sacrificed to gain that end.

Considering the circumstances under which the convention met, the evils sought to be remedied, and the ends to be accomplished, as well as the personnel of the members, it cannot reasonably be held that it ever entered the mind of any member that the Governor* under the guise of maintaining the Governor’s mansion, would be voted groceries to maintain his household, would be voted food and care of the Governor’s horses, gasoline and repairs for his automobile, would be voted embossed cards and printed invitations to his social functions, and liquors, meat, vegetables, and fruits for his table. The “Grangers” who composed that convention would have arisen in their wrath and smitten the unfortunate delegate with their votes who would have •dared to introduce a resolution permitting such rich perquisites and emoluments to the Governor. If he was to receive such a substantial addition to his salary, the words, “and no more,” appended to the amount of the salary, are meaningless; for there can be no substantial difference in voting extra dollars to the Governor and paying the bills he has contracted for necessaries and luxuries purchased by him for himself and his family.

Clearly, the items for which the comptroller sought and desired to issue state warrants, and from which action he was restrained, were for private and individual purposes, and not for the public good, and the appropriation made for that purpose by the Legislature was directly in the face of article 16, § 6, of the Constitution, which commands that “no appropriation for private or individual purposes shall be made.” The articles named were clearly not for the Govern- or in his official capacity, but for his individual satisfaction and gratification. No governmental or official object would be obtained by feeding and shoeing his horses, by repairing and furnishing gasoline for his automobile, or by furnishing groceries or other luxuries for him to consume.

The appropriation by the Legislature to pay for the articles used by the Governor was made under the guise of covering a deficiency, and appellant actually contends that article 3, § 49, of the Constitution, and article 4342, Rev. Stats., authorize the Legislature to make provision for the payment of debts contracted by the Governor for provisions and other things purchased by him between Legislatures. We understand that the rule is that a state Constitution should be liberally construed, in contradistinction to a strict construction of the federal Constitution; but it is liberality of construction running riot, when items purchased for the table, automobile, horses, and library of the Governor can be ranked as “casual deficiencies of revenue,” or “to repel invasion, suppress insurrection, defend the state in time of war or pay existing debts.” None of these contingencies had arisen, and, in regard to the last named, the state had contracted no debt, and it was not in existence. There were no casual deficiencies of revenue to pay for luxuries and necessaries for the household of the Governor, because no attempt had been made to raise revenue for that purpose. No provision could be made for it, for the amount of it would depend on the taste and appetite of the individual who occupied the Governor’s office. The Legislature was chary in its description of the items of the appropriation upon which the comptroller desires to draw his warrants. The language is:

“That the following sums be and they are hereby appropriated to cover deficiencies for the named purposes for the fiscal year ending August 31, 1915: For Governor’s mansion, water, fuel, lights, etc., §1,500.00.”

The “etc.” was very comprehensive, and covered any conceivable articles of food or drink, gasoline, horse feed, stationery, and other articles. By a liberal construction of the Constitution, which was made by the trial judge, but about which an opinion of this court has not been sought, and consequently will not be given, water, fuel, and lights were allowed; but reason would stagger and common sense collapse with a holding that the articles bought for the use of the Governor's family and himself were “for Governor’s mansion.”

Whenever the line defined by the Constitution is once passed, there is no limit to the things for which appropriations will be asked and given. This is clearly shown by the growth of appropriations from Legislature to Legislature since the adoption of the Constitution. The first Legislature thereafter appropriated “$110 a year for gas for the Governor’s mansion”; the second one included “$400 a year for a gardener” and “$200 a year for wood, lights, etc.,” and a contingent fund of “$200 for each year for the mansion”; and so on down until by leaps and bounds the sum of $1,500 was appropriated, not to cover certain expenses, but to cover a deficiency created by the Governor for necessaries and luxuries for himself and family. In addition to the appropriation for a deficiency, the appropriation of “$110 a year for gas” has grown to $5,000 per annum for Governor’s mansion, for labor and employés at mansion, and for “fuel, lights, water, ice and incidentals.” Gen. Laws, Regular Session, 34th Legislature, p. 13. As the encroachments on the Constitution progressed, each successive step is made a precedent and used as an argument to justify a disregard of the Constitution.- The appropriation for the deficiency, out of which the items herein specified are sought to be paid, is in addition to an appropriation made in 1913 for $2,000 for each year of that administration.

The appropriation does not specify what it is intended to cover beyond “water, fuel, lights, etc.,” and yet it is seriously argued that no citizen has the right to go back of that “etc.,” and inquire into what is included under that omnibus provision. Did the Legislature know that it was appropriating money to pay for groceries and the other articles used by the Governor? If so, why did it halt at the articles named? Did it seek to conceal the subject of the appropriation? If an appropriation for “etc.” is ever legal and valid, certainly the taxpayer, in spite of the sanctity with which appellant'seeks to clothe the Legislature, should have the right to inquire into the matters for which the mysterious appropriation is made, and prevent the payment of any items prohibited by the Constitution. It is not a question of the manner of exercise of a power conferred by the Constitution, but the exercise of a power absolutely inhibited by the Constitution. It follows that the numerous authorities cited by appellant condemning the inquiry into the motives of a Legislature in the exercise of a valid power have no pertinency or applicability to an act done in violation of the Constitution.

While not commending the expenditure by.the Pennsylvania Legislature, as shown in Russ v. Commonwealth, 210 Pa. 644, 60 Atl. 169, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825, of money for the ceremonies attending the dedication of a monument, we can see the difference between that expenditure and one for the purpose of increasing the compensation of the Governor in violation of the Constitution. If there was any doubt, as expressed by the Pennsylvania court, as to the powers of their Legislature to make the appropriation of $6,100.64, about half of which was for liquors, there is no doubt in this case. It is not doubted that the Legislature has plenary powers, subject only to constitutional limitations, as expressed in the Iowa case of McSurely v. McGrew, 140 Iowa, 163, 118 N. W. 415, 132 Am. St. Rep. 248, and we are applying that rule to the act of the Texas Legislature in making its deficiency appropriation. We are willing to concede to our Legislature perfect freedom of action within the constitutional limits of its powers, but we are not called upon to respect and uphold an act not only unsupported by the Constitution, but in contravention of it.

If, as contended through the medium of the eighth assignment of error, the purchase of groceries and other necessaries and luxuries for the support and maintenance of the Governor’s household is not an increase in his compensation, we fail to see how a direct payment of money to him would be an increase. The proposition seems to be that, if the money was placed in the hands of the Governor and he had expended it for the articles mentioned, that would be in violation of the Constitution, but if he is allowed, by an appropriation to pay for his purchases, it would not be an increase of compensation. That is a species of sophistry that cannot meet with judicial sanction. The one is as much an increase as the other, and no number of “etcs.” can cover it up. A lending of the credit of the state to a Governor for his private expenses, to increase his compensation is not only a violation of the constitutional provision as to his compensation, but is in violation of article 3, § 50, of the Constitution. The salary of $4,000 was given as the entire compensation of the Governor, and it is clearly provided that his compensation shall be no more than $4,000 annually.

Great stress is put upon the fact that Legislature after Legislature has interpreted the Constitution to give license to supply almost any article of food and drink and other comforts to the Governor, and an infraction of the Constitution is sought to be made sacred and impregnable by the numerous past infractions. As said in Story on Constitutions, § 407:

“Contemporary construction can never abrogate the text; it can never fritter away its obvious sense; it can never narrow down its true limitations; it can never enlarge its natural boundaries.”

The fact that the Legislature that met immediately after the adoption of the Constitution very modestly allowed gas for the Governor’s mansion to the amount of $110 annually cannot be invoked to fortify an appropriation to victual and maintain the governor.

“Acquiescence for no length of time can legalize a clear usurpation of power, where the people have plainly expressed their will in the Constitution, and appointed judicial tribunals to enforce it. A power is frequently yielded to merely because it is claimed, and it may be exercised for a long period, in violation of the constitutional prohibition, without the mischief which the Constitution was designed to guard against appearing, or without any one being sufficiently interested in the subject to raise the question; but these circumstances cannot be allowed to sanction a clear infraction of the Constitution.” Cooley, Const. Lim. (7th Ed.) p. 106.

As said by the Court of Appeals of New York in People v. Allen, 42 N. Y. 378:

“No length of usage can enlarge legislative power, and a wise constitutional provision should not be broken down by frequent violations.”

A wrong cannot be sanctioned by age and acquiescence, and transformed into a virtue. Indifference and lack of vigilance have lost some of the dearest rights to the people, but they can always be regained by energy and persistence.

Courts liesitate to declare the acts of a co-ordinate branch of the government unconstitutional and void, and, in some instances where rights of property have sprung into existence by reason of the unconstitutional-legislation, decline to interfere with the legislation, but a law passed in violation of the Constitution around which no rights of property have grown up should unhesitatingly be declared null and void.

“In exercising this high authority, the judges claim no judicial supremacy; they are only the administrators of the public will. If an act of the Legislature is held void, it is not because the judges have any control over the legislative power, but because the act is forbidden by the Constitution, and because the will of the people which is therein declared is paramount to that of their representatives expressed in any law.” Cooley, Const. Lim. p. 228.

The will of a sovereign people as expressed through their organic law is supreme, and necessity, legislative construction, and legislative act cannot weaken, impair, or destroy it.

There is no doubt that the Governor of Texas is inadequately compensated for his services, and that his niggardly salary is a reproach upon a great people; but the people have evidenced no desire to recede from the provision of the Constitution that he shall receive as compensation $4,000 annually “and no more.” Only a short time since a constitutional amendment was presented to the people which sought to increase the Governor’s salary, but they promptly and vigorously voted it down. Their will, expressed in the Constitution and reiterated at the polls, cannot be circumvented and set aside by legislative action. There is no more sanctity in an appropriation bill than in any other act, and an unconstitutional appropriation cannot be covered up and hidden from judicial inquiry by a legislative “etc.” If the Governor is miserably remunerated for his services, it is the province of the people, and not of the Legislature by evasion or disregard of the Constitution, to remedy it.

In conclusion, we quote the present Chief Justice of the Supreme Court in the case of Waples v. Marrast, 184 S. W. 180:

“Taxes are burdens imposed for the support of the government. They are laid as a means of providing public revenues for public purposes. The sovereign power of the state may be exercised in their levy and collection only upon the condition that they shall be devoted to such purposes ; and no lawful tax can be laid for a different purpose. Whenever they are imposed for private purposes, as was said in Brodhead v. Milwaukee, 19 Wis. 670, 88 Am. Dec. 711, it ceases to be taxation and becomes plunder.”

However commendable may be the desire of our Legislatures to add to the beggarly salary allowed the Governor of Texas, their liberality and sense of right and justice must give way to the mandate of the Constitution which commands that he receive $4,000 annually “and no more.”

The judgment is affirmed.
      (gj^sFor other oases see same topic aucl KEY-NUMBER in all Key-Numbered Digests and Indexes

      <@=Eor other cases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: MOURSUND, J.

license: Public Domain

text:
    WELLER et ux. v. MISSOURI, K. & T. RY. CO. et al.
    (No. 5690.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 14, 1916.)
    1. Appeal and Error i&wkey;742(l) — Assignments op Error — Sufficiency.
    In an action against a railroad company for damages for placing white passengers in a coach also occupied by negroes, assignments of error that the verdict and judgment were contrary to the testimony, in that it showed that the white passengers purchased tickets entitling them to transportation in a coach set apart for white persons, cannot be extended by propositions to raise the point that they suffered men= tal anguish by reason of the proximity of ne-.groes.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 3000; Doc. Dig. &wkey;j742(l).]
    2. Railroads <&wkey;253 — Carriage op Passengers — Actions—Damages.
    A passenger cannot recover even nominal damages against a carrier for an infraction of the separate coach law without showing that he was injured.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 732, 733; Dec. Dig. &wkey;253.]

      8. Appeal and Error <&wkey;215(l) — Presentation op Grounds op Review in Court Below — Instructions—Objections.
    White passengers suing because forced to ride .in a coach partly occupied by negroes, not having objected below to instructions which made recovery contingent upon the suffering of actual damages, cannot assert on appeal that they should have been allowed nominal damages in any event.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1309, 1310; Dec. Dig. &wkey;> 215(1); Trial, Cent. Dig. § 083.]
    4. Appeal and Error &wkey;>1050(3) — Harmless Error — Carriage op Passengers — Evidence — Admissibility.
    Where white passengers were suing because compelled to ride in a coach partly, occupied by negroes, evidence that the two races were commingled because the negro coach was disabled, that they were separated by large signs, one portion of the coach being set off for the negroes, and that many of the white passengers were soon placed in Pullman and chair cars, has such a bearing on the question as to whether white passengers suffered shame and humiliation that, if erroneously admitted, the error does not necessitate a reversal.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. § 4155; Dec. Dig. t&wkey;> 1050(3).]
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by C. B. Weller and wife, against the Missouri, Kansas & Texas Railway Company and others. From a judgment for defendants, plaintiffs appeal.
    Affirmed.
    N. A. Rector, of Austin, for appellants. Eiset, McClendon & Shelley, of Austin, for ■ appellees.
   MOURSUND, J.

We adopt appellants’ statement of the nature of the suit, as follows:

“This suit was instituted by C. B. Weller and his wife, Lucile Weller, against the Missouri, Kansas & Texas Railway Company of Texas for the sum of $1,500 each, and in the total sum of $3,000. Plaintiffs alleged that on the 23d day of December, 1913, in the city of Austin, Travis county, Tex., they purchased from the defendant railway company two first-class passenger tickets which entitled them to be. transported from Austin to San Antonio, Tex., m a first-class coach in which only white people were allowed to ride (the plaintiffs being white people); that the defendant railway company breached its contract, in that it compelled plaintiffs to enter a coach partly filled with negroes and to ride in said coach from Austin to and beyond San Marcos, in Hays county, Tex., a distance over 30 miles; that they were humiliated and mortified on account thereof, and sued for damages suffered because of mental distress and anguish for such outrages. They pleaded, also, the statute which requires a railway' company to furnish separate coaches for the transportation of white passengers and negro passengers, and alleged the violation of said statute by the defendant. The defendant answered by general demurrers and special exceptions, which were overruled, and further answered admitting paragraph 1 of plaintiffs’ petition and otherwise substantially denying the remaining portions of said petition. In subdivisions (a) and (b) in said answer defendant pleaded extraordinary and unprecedented floods in Texas along its route which washed its tracks and bridges out in different places, which rendered its road unsafe and generally interfered with the operation of its trains, and also specially pleaded that it had not equipped the train upon which plaintiffs took passage with a separate coach for negroes, because it alleged that the only coach available for that purpose was in San Antonio. These subdivisions were pleaded, as the defendant claimed, first to show compliance or a substantial compliance with the requirements of the statute, and, secon£, as an excuse for not so complying, and, third, in mitigation of damages.”

The trial resulted in a verdict and judgment in favor of defendant.

Appellants by their first assignment contend that the verdict and judgment are contrary to the testimony, in that the undisputed testimony showed that plaintiffs, who are white people, purchased tickets from defendant company which entitled them to transportation from Austin to San Antonio in a coach or car set apart for the use exclusively of white people, and that they were required by the defendant’s officers and agents to enter a car in one of its trains at Austin bound for San Antonio and to ride from Austin to and through San Marcos in such ear, and that a number of negroes were at the same time permitted to ride in said car.

The second assignment is similar to the first in all respects, except that it is asserted the verdict and judgment are contrary to the great preponderance of the testimony.

These assignments do not embrace any contention that the undisputed testimony or the great preponderance of the testimony showed that plaintiffs suffered mental anguish, distress of mind, or humiliation, and they cannot be extended by propositions so as to raise such question. They simply assert that on proof of certain facts therein set out plaintiffs were entitled to recover. We therefore regard such assignments as raising the same question presented by the third and eighth assignments, namely, whether upon proof of such facts alone plaintiffs

are entitled to recover nominal damages. This court has held, in the case of Norwood v. Railway Company, 12 Tex. Civ. App. 560, 34 S. W. 180, that an individual, though a passenger, cannot recover any damages for the infraction of the separate coach law unless he suffers special damages on account of such infraction. This rule was reiterated in the case of Henderson v. Railway Co., 38 S. W. 1136, and we are still of the opinion that it is correct. We conclude, further, that as plaintiffs did not object to the charge of the court nor the special charge given at defendant’s request, in both of which plaintiffs’ right to recover was made to depend upon the finding of actual damages, they cannot now be heard to insist that the jury should have allowed nominal damages.

Assignments 1, 2, 3, and 8 are overruled.

Appellants contend that the court erred in admitting evidence showing that floods had occurred which had caused trains to be run on slow time and behind their regular schedule, and in this connection to show that it had no separate coach at Waco to place in the train on which plaintiffs took passage at Austin, and further to show that, as an excuse for not having a separte coach for negroes, such negro coach had been left in San Antonio on a former trip and was reported in bad order. They also contend that testimony should not have been admitted to the effect that defendant’s officers and agents had posted placards on the back of the seats in the coach in which plaintiffs rode, designating the front portion thereof “For Negroes,’’ and the rear portion thereof “For Whites”; also, testimony to the effect that an unusually large number of passengers sought passage on the train on which plaintiffs took passage. All of this evidence was objected to as irrelevant and immaterial. The court in his charge did not submit any defense based upon any of this testimony; in fact, refused a special charge in which defendant sought to present a defense based upon the theory that, if it was impossible to furnish other equipment owing to floods and heavy-travel, it should not be held liable. The question to be determined is, therefore’ whether any part of this testimony was inadmissible, and, if so, whether the error in admitting it is of sufficient importance to require a reversal of the judgment.

As it is a matter of common knowledge that white citizens of the South are daily thrown in contact with members of the negro race in almost every walk of life, and negroes are permitted by law to ride on street ears with whites, with only a sign to indicate the place where they are to sit, it seems clear that whether or not proximity to negroes in a coach or train causes mental anguish or humiliation depends to some extent upon the circumstances under which such proximity is brought about and maintained, and we therefore think it was un-dopbtedly permissible to prove that signs bad been put up which showed that the negroes were not permitted to take seats in that part of the coach reserved for whites. Defendant’s conductor testified that he used the coach in which plaintiffs took seats as a coach for negroes, from Waco to Austin, and had placed large cardboard signs in both compartments showing that it was for ne-groes, which signs had been torn down when he entered this car at the bridge as the train was leaving Austin, at which time he ascertained that plaintiffs and other white people had taken seats therein, and that he then put up signs on the seats between the whites and negroes. It is shown that owing to flood conditions no cars were available to add to this train at Waco or Austin or intermediate points, and that many persons were turned back at Austin and not permitted to enter the train; that a Pullman car was added at Austin, and was filled up by the conductor, at the expense of the company, with passengers standing up in the coach used for whites; that at San Marcos a chair car was picked up, and passengers were transferred from the Pullman to the chair car, leaving women passengers in the Pullman, and, shortly after leaving San Marcos, plaintiffs and Mrs. Connally and children, who were with plaintiffs, were moved into the Pullman. It was also proven that the coach ordinarily used for colored people was at San Antonio and reported to be in bad order.

Appellee contends that the unusual flood conditions, the want of proper equipment caused thereby, and the unusually' large crowd that was on the train, were circumstances to be taken into consideration in determining whether or not plaintiffs were humiliated or mortified, and, if so, in measuring the equivalent thereof in money. The proof that a large number of people sought passage on the train was necessarily adduced in showing the crowded condition of the train, and could not have harmed plaintiffs; in fact, was developea by plaintiffs’ own testimony. Of course, any circumstance tending in the slightest to show conditions calculated to prevent humiliation, or reduce the extent thereof, is aumissible, and the difficulties under which defendant was laboring were calculated to make the passengers who were not turned back at the steps of the cars view with more or less resignation the occupancy of the car by both races. Some of the testimony wouid necessarily be adduced in explanation of the act of the conductor in using and designating the coach as one for negroes, in making the run from Waco to Austin, and if it be conceded that it was unnecessary to go into detail concerning the extent of the flood, and to prove that no other car was available, we think, after consideration of all the testimony, that, if error was committed in admitting the evidence objected to, such error does not require a reversal of the judgment. In this connection, it is to be noted that all of these matters were fully pleaded by defendant and no exception thereto was urged by plaintiffs.

The judgment is affirmed.
      ig^sFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    CONNALLY et al. v. MISSOURI, K. & T. RY. CO. OF TEXAS.
    (No. 5691.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 14, 1916.)
    Appeal from District Court, Travis County; George Calhoun, Judge.
    Action by C. W. Connally and another against the Missouri, Kansas & Texas Railway Company of Texas. Prom a judgment for defendant, plaintiffs appeal.
    Affirmed.
   MOURSUND, J.

This is a companion case to No. 5690, styled C. B. Weller et al. v. Missouri, Kansas & Texas Railway Company, 1S7 S. W. 374, this day decided by this court. The eases were tried upon the same evidence, before the same jury, and a verdict was returned in favor of defendant company. The cause is submitted on the same briefs, and, for the reasons set forth in the opinion rendered in said cause No. 5690, the judgment is affirmed.


text:
    MISSOURI, K. & T. RY. CO. OF TEXAS v. HARRELL GIN CO.
    (No. 5687.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 7, 1916.)
    Carriers <&wkey;44 — Action for Penalties — Failure to Furnish Oars — Pleading.
    A complaint in action for penalties prescribed by Rev. St. 1911, art. 6680 (Vernon’s Sa.vles’ Ann. Civ. St. 1914, art. 6080), for alleged failure to furnish a car, alleging application for ear to be placed on a spur track of another railroad, not designating as the place where the ear was desired some station or switch of defendant, is demurrable, under Vernon’s Snylcs’ Ann. Civ. St. 1914, art. 6679, requiring that application for ears shall state the place at which they are desired, and designate a place at some station or switch on the railroad.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122, 230; Dec. Dig. <&wkey;>44.]
    Appeal from Caldwell County Court; J. T. Ellis, Judge. .
    Action by the Harrell Gin Company against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered.
    A. B. Storey, of San Antonio, and Jeffrey, Jeffrey & Fielder, of Lockhart, for appellant. O. Ellis, Jr., S. R. Graves, N. H. Clark, and Fred L. Blundell, all of Lockhart, for appel-lee.
   MOURSUND, J.

This is a suit by appellee against appellant to recover penalties in the sum of $200 for alleged failure to furnish a tank car for the shipment of fuel oil for eight days after the expiration of three days from the time when demand in writing for such car was filed with the railway company. Upon appeal to tlie county court, taken by plaintiff, judgment was rendered in its favor for $175.

Plaintiff alleged that it owned a gin plant located on a spur of the San Antonio & Aran-sas Pass Railway Company at Lockhart, where it stored its oil; that there is a transfer track which connects the main line of defendant railway with the main track, switches, and spurs of the said San Antonio & Aransas Pass Railway; that an arrangement existed between the two railway companies whereby defendant railway, on demand, placed or had placed at points on the tracks, switches, and spurs of the San Antonio & Aransas Pass Railway Company cars for the receiving of freight for transportation over appellant’s lines; that a custom existed between said railway companies whereby defendant company would place cars on the transfer track between the two main lines of said companies, and the San Antonio & Aran-sas Pass Railway Company would at once transfer said car to any switch or spur on its line in Lockhart, Tex., where the defendant desired to load freight for shipment over its line, and the agent of defendant would see to the loading and billing out of such freight in the same way as if it had been received on defendant’s switches; that it was the duty of the San Antonio & Aransas Pass Railway Company to receive the ears placed on the transfer track, and the duty of defendant to place cars on said transfer track and notify the agent of the San Antonio & Aransas Pass Railway Company of the placing of such car and the switch or spur on which it desired the ear placed for loading; that it was not the duty of the San Antonio & Aransas Pass Railway Company to furnish cars in Lockhart, Tex., to be loaded with freight to be transported by defendant to points on its line, nor was it the custom for the San Antonio & Aransas Pass Railway Company to do so, and this was understood by the shipping public in Lockhart and vicinity ; that plaintiff desired to ship fuel oil from its gin plant to New Braunfels, and on July 18, 1914, delivered to the agent of defendant at Lockhart a written application or demand for one car suitable for hauling fuel oil, such car to be furnished at Lockhart on the spur of the San Antonio & Aransas Pass Railway Company’s lines within three days from that date. Plaintiff then alleged the payment of one-fourth of the freight, its receipt and acceptance by the agent, together with the application, and the agreement by the agent to furnish the car as requested. Plaintiff also alleged that the place at which the car was to be furnished was within the corporate limits in the city of Lockhart, and that appellant had a station and an agent in said city; that defendant failed and refused to deliver the car either to plaintiff or on the transfer track within the time required by law, and did not furnish same until July 80, 1914, wherefore it became bound to pay plaintiff the sum of $25 per day for eight days. Plaintiff also alleged fully its readiness and ability to load the ear within 48 hours had it been furnished as requested. Defendant alleged that the transfer track was owned jointly by the two raiiway companies, and plaintiff in a supplemental petition admitted the correctness of such allegation.

Appellant contends that the penalty provided for in article 6680, Vernon’s Sayles’ Statutes, cannot be collected unless the place designated in the demand be at some station or switch on the line of the company to which the application is made, and that plaintiff’s petition is subject to general demurrer on the ground that it fads to allege that the application designated such a place. Article 6679, Vernon’s Sayles’ Statutes, reads as follows:

“Said application for cars shall state tne number of cars desired, the place at which they are desired, and the time they are desired: Provided, that the place designated shall be at some station or switch on the railroad.”

This statute, when strictly construed, undoubtedly means that the place designated must be at some station or switch on the railroad of the company to which application is made. In speaking of this statute our Supreme Court, in the case of H. E. & W. T. Ry. Co. v. Campbell, 91 Tex. 557, 45 S. W. 2, 43 L. R. A. 225, said:

“The statute imposes a heavy penalty, and it is an elementary rule that, such statutes must be strictly construed. This does not imply that the courts are authorized to refuse to give effect to the intention of the Legislature, but it proceeds upon the theory that it is not reasonable to presume it is their intention to impose a punishment, except in so far as that purpose is clearly manifested by the language employed in the statute. It results as a corollary from this rule that the penalty will hot be awarded in a ease which does not come strictly within the terms of the statute. Such is the established canon of construction in this court.”

Our courts have held that in proceedings to enforce statutory penalties the facts constituting the offense must be averred with the same certainty that would be required in a bill of indictment; that the facts must be alleged, and mere inference will not aid them. State v. Williams, 8 Tex. 265; Dorrance v. Railway, 53 Tex. Civ. App. 460, 126 S. W. 694.

Applying the foregoing rules to plaintiff’s petition, we find that it does not allege that plaintiff designated as the place at which the car was desired one at some station or switch on the railroad of appellant company, but, on the contrary, that the petition affirmatively shows that the place designated is situated on the spur track of the San Antonio & Aransas Pass Railway Company. Plaintiff appeared to have some doubt whether it could require appellant to place its car on the track of the San Antonio & Aransas Pass Railway Company under the statute above copied; for it alleged that defendant failed, to deliver the car either to plaintiff or on the transfer track. The transfer track was partly owned by appellant, and it was customary for appellant to place its cars thereon and rely upon the'San Antonio & Aran-sas Pass Railway Company to remove the cars to such place on its track as was desired by the shipper, but no statutory request was made of appellant to place the car on the transfer track, and it is not within the power of the courts to hold that this highly penal statute was.intended to cover cases not coming within the terms thereof when strictly construed.

The first assignment is sustained, and the judgment of the trial court is reversed. As it is apparent that no case for the recovery of the penalty prescribed by article 6680, R. S. 1911, can be alleged, and the suit is for such penalty alone, it would be useless to remand the cause. Judgment 'will therefore be rendered by this court dismissing the case.
      (g^sPor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PLEASANTS, C. J.

text:
    COMMISSIONERS’ COURT OF TRINITY COUNTY et al. v. MILES et al.
    (No. 7262.)
    (Court of Civil Appeals of Texas. Galveston.
    May 5, 1916.
    Rehearing Denied June 1, 1916.)
    1. Counties <®^196(7) — Fiscal Management —Indebtedness in Excess of Constitutional Limit — Injunction.
    Evidence held sufficient to sustain issuance of injunction at suit of taxpayers to enjoin issuance of county warrants on the ground that tax levy was insufficient to pay interest and provide sinking fund for payment of such warrants on maturity, and on the further ground that there was not such competition in sale of warrants or letting of the contract for which the warrants were needed as is required by law.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 808; Dec. Dig. <&wkey;>196(7).]
    2. Counties i&wkey; 196(7) '— Taxpayebs’ Action — Pleadings—Sufficiency.
    . Where in injunction suit the answer contains special denials to most allegations of the petition in addition to a general denial, the allegation that plaintiffs are property taxpayers of the county, not met by special denial, is sufficiently proved by affidavit attached to the petition.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. § 808; Dee. Dig. &wkey;>196(7).]
    3. Appeal and Ekkor &wkey;>638 — Haemless Eb-bok — Statement of Fact — Suffioienoy.
    Under R. S. 1911, art. 2069, providing that, where parties cannot agree upon a statement of facts, the judge shall certify a correct statement from statements furnished by the parties and from his own knowledge, held, that a statement of facts in an injunction suit based in part upon the recollection of a bystander is not reversible error, where the record contains a stipulation that the statement so prepared is correct.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2785, 2786; Dec. Dig. &wkey;> 638.]
    Appeal from District Court, Trinity County; S. W. Dean, Judge.
    Injunction by W. S. Miles and others against the Commissioners’ Court of Trinity County and others. From an order granting a temporary injunction, certain defendants appeal.
    Affirmed.
   PLEASANTS, C. J.

This appeal is from an order of the district court of Trinity county granting a temporary injunction in a suit for injunction, brought by appellees against the appellants, the county judge and members of the commissioners’ court of said county, and the Midland Bridge Company, a firm composed of Freygong and Trocon, to restrain the aefendants from carrying out a contract made by said court with said bridge company for the erection of bridges and roads in said county.

No pleading could be more inartistic thán plaintiffs’ petition. It is confusing and complex, but we cannot say that giving its allegations every reasonable intendment it fails to show any grounds for the relief sought.

The contract provides for the issuance by Trinity county of warrants in the sum of $100,000 to be drawn on the road and bridge fund of the county. These warrants were to be dated January 1, 1916, and to bear interest at the rate of 6 per cent, per annum, payable semiannually, said warrants to be payable in 15 annual installments. The bridge company agreed to furnish the material and labor for the construction of such bridges and roads as should be designated by the commissioners’ court, at prices named in the contract, the total amount so furnished not to exceed 85 per cent, of the amount of said warrants, the remaining 15 per cent, of said amount to go to the bridge company for engineering and superintendence of said work, the warrants to be delivered to the bridge company in payment of said labor and material as the worn progressed.

The petition, which is properly verified, alleges that plaintiffs are resident property taxpayers of Trinity county. The issuance of the $100,000 in warrants is sought to be enjoined because the tax levy of 15 cents on the $100 is not sufficient to pay the interest and provide a sinking fund for the payment of said warrants as they mature. The petition further charges that the contract is illegal because there was not such competition as the law requires in the sale of the warrants of the county and in the letting of the contract for furnishing the material and labor for the construction of bridges and roads to cost $100,000. It is further alleged that of the 15 per cent, allowed the bridge company for engineering and superintendence of the wofk 5 per cent, was, in fact,’ allowed to cover discount on the warrants.

The trial court found that there was evidence to sustain all of these allegations, and that pending a full and final hearing of the cause a temporary injunction should issue restraining defendants from proceeding to carry out said contract. From this order the members of the commissioners’ court have appealed. The* bridge company has not appealed. We think there is evidence in the record sufficient to sustain the allegations of the petition, and the trial court did not err in so holding.

The hearing was upon the sworn pleadings of the parties and upon documentary and oral testimony. The defendants’ answer contains a general denial, and also special denials of most of the allegations of the petition. There is no special denial of the allegation of the petition that plaintiffs are property taxpayers of Trinity county. In the absence of such denial, the affidavit attached to the petition was sufficient evidence of the truth of the allegation.

The appellants urge that the judgment should be reversed because the statement of facts prepared by the trial judge, after the parties had failed to agree upon a statement, is not certified as required by the statute, and, the appellants having been, because of this insufficient certificate, deprived, without fault of theirs, of a statement of facts which this court can consider, the judgment should be reversed.

The certificate of the judge to the statement of facts is as follows:

“The State of Texas, County of Trinity.
“I, S. W. Dean, judge of the district court of Trinity county, Tex., do hereby certify that, the parties plaintiff and defendant having failed to agree upon a statement of facts in this cause, and having each submitted to me their respec-tivo statements, I have from such statements, and from my own knowledge, and from the evidence of N. H. Phillips, an attorney of record for plaintiff, and Hayne Nelms, a party present during the trial of said cause, made out the foregoing correct statement of the facts and all the facts proven upon the trial of said cause, and hereby direct the clerk to file the same as a part of the record therein.
“To certify which witness my hand this 17th day of February, A. D. 1916.
• “S. W. Dean,
“Judge Twelfth Judicial District.”

This certificate is not in accordance with the requirements of the statute, and ordinarily an appellant would not be required to submit his case in an appellate court upon a statement of facts prepared by the trial judge from testimony heard after the trial as to what was the evidence upon the trial, but such statement must be made from the statements furnished him by the parties and from his own recollection of the evidence. Article 2069, Revised Statutes 1911; Toland v. Turner, 152 S. W. 852.

Tlie statement of facts in this case has appended to it a certificate of the stenographer who took down the testimony that it is a true and correct transcript of his notes of all the testimony heard upon the trial, and has also an agreement signed by the attorneys for the appellants that the statement is “a true and correct statement of the facts and all the facts adduced in evidence upon the trial.” If all the rules applicable to the preparation of a transcript of the evidence upon appeal from a final hearing of a cause are applicable in appeal from a hearing on an application for temporary injunction, which may well be doubted, we do not think the appellants can be heard to complain in the face of their agreement above set out.

We think the pleadings and evidence justified the trial court in granting the temporary injunction, and the order granting said injunction is affirmed.

Affirmed.
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author: FU?, C. J.

text:
    UHR v. LANCASTER.
    (No. 5761.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 7, 1916.)
    1. Municipal Corporations <&wkey;180(3) — Ordinances — Construction.
    An ordinance providing that the police force of the city of San Antonio shall consist of a chief marshal, assistant marshals, and patrolmen, although not establishing a police force, created the office of marshal, because specially named.
    [Ed. Note. — For other cases, see Municipal Corporations,' Cent. Dig. §§ 452, 453, 455, 466; Dec. Dig. &wkey;3l80(3).]
    2. Municipal 'Corporations <&wkey;183 (2) — Municipal Officers — Term op Office.
    Under San Antonio City Charter, amendment of 1915, § 16, par. 2, providing that appointive officers shall hold office until the appointment and qualification of their successors, when plaintiff admits that defendant had been appointed in 1913 in accordance with an ordinance creating the position of marshal, and does not allege that a successor has been appointed and qualified, a writ of injunction restraining defendant from exercising the duties of the position of marshal will not be allowed.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 476; Dec. Dig. &wkey;> 1S3(2).]
    3. Municipal Corporations <&wkey;183(l) — City Charter— “Emp lo yé. ”
    Under the City Charter of San Antonio as amended in 1915, enumerating the elective and appointive officers of the city and providing that officers and employes hold office for two years, the city marshal not being enumerated, ah though an officer contemplated by Const, art. 16, § 17, providing that all officers of the state shall continue to perform their duties until their successors are duly qualified, is an employé, and not an appointive officer appointed by the mayor.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 473; Dec. Dig. <&wkey;> 183(1).
    For other definitions, see Words and Phrases. First and Second Series, Employé.]
    Appeal from District Court, Bexar County; W. F. Ezell, Judge.
    Suit for injunction by Robert F. Uhr against F. H, Lancaster. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Jos. Ryan, Frank H. Wash, Scott & Dodson, and Robt. P. Coon, all of San Antonio, for appellant. Geo. R. Gillette, Robt. G. Harris, and R. J. McMillan, all of San Antonio, for appellee.
   FU?, C. J.

Appellant sought by this suit to restrain appellee from interfering with appellant or persons serving in the police department of the city of San Antonio in the discharge of their duties; from interfering with appellant in the possession and control of the said police department and the property belonging to said department; from maintaining an office in the building occupied by the police department; from removing or attempting to remove any officer, agent, or employs of said department; from controlling and attempting to control the office room, desk, or mail of appellant, as commissioner of the police and fire department of San Antonio, or any officer or employs thereof, and from interfering with appellant in the enforcement of all fire and police regulations, and from interfering with appellant in the supervision of the police department of said city and the city pound. A temporary writ was refused, upon a hearing, and, from the order of refusal, this appeal has been prosecuted.

It appeared from the facts that appellee was appointed city marshal of San Antonio by its mayor, Clinton G. Brown, in July, 1913, and his appointment was confirmed by tlie council in the same month, and year, and, at the same time, appellee took the oath of office and gave the required bond. He has not been reappointed, nor has he taken the oath nor given a bond since that time. He has been drawing the salary attached to the office of marshal ever since. On May 1, 1916, Robert Uhr, commissioner of the police and fire department, placed on the bulletin board in the police station a notice to all officers and employes of the department that he had appointed J. R. Baldwin city marshal and chief of police, and directing them to report to said Baldwin. That order was not respected by appellee, who issued a counter order to the officers of the police department, who obeyed his order. Appellee did not interfere in any manner with appellant’s supervision of the police department, and he expressed a willingness to obey the lawful instructions of appellant. It was agreed that appellee had taken and obeyed orders given by the mayor and had performed all other matters and things in any way appertaining to, or connected with, the office of city marshal.

The following ordinance was passed by the city council and approved by the mayor on March 2, 1903:

“The police force of the city of San Antonio shall consist of one chief marshal and two assistant marshals, one police matron, and such mounted and unmounted patrolmen as the mayor and city council may deem necessary.”

On August 7, 1899, the following ordinance was passed:

“The police force of the city of San Antonio will consist of the following grades: Chief marshal (ex officio chief of police), assistant marshal or marshals, and patrolmen.”

Those ordinances were never repealed or modified until the adoption of the ordinance of May 4, 1916, which was ap ordinance to establish a police force and regulate the same in and for the city of San Antonio.

In 1903, a charter was granted the city of San Antonio, which, with amendments adopted in 1907 (Laws 1907, p. 526), and 1911 (Gam-mel’s Laws 1911, p. 878), remained the charter of the city until the adoption of the present amended charter, known as the “Commission Charter.” In the charter of 1903 it was provided:

“The present elective officers of the city of San Antonio shall continue to perform the duties of their offices, unless removed as herein provided, until the general election under this charter, and all ordinances of the city of San Antonio now in force not contrary to the provisions of this act and the laws of this state shall continue in force until repealed.”

At the time that act went into effect there was in effect an ordinance, passed by the city council on March 2, 1903, as follows:

“The police force of the city of San Antonio shall consist of one chief marshal and two assistant marshals, one police matron, and such mounted and unmounted patrolmen as the mayor and city council may deem necessary.”

That ordinance was not in conflict with the provisions of the charter which after-wards took effect on July 1, 1903. Neither was the provision contrary to any state law, and consequently it was just as effective after the charter of 1903 went into effect as it was before. The amendments of 1907 and 1911 in no wise changed or affected the ordinance in question. In the amendment adopted in 1915, it is provided in section 134:

“All rules, regulations and ordinances of the city, which shall be in force when these amendments take effect, and not in conflict herewith, shall remain in full force and effect until otherwise amended, altered, or repealed.”

The ordinance creating the position of marshal was not in any manner disturbed ny the adoption of the amendment of 1915, under the enabling act of April 7, 1913, Gammel’s General Laws, p. 307. Under the charter of 1903, section 65, the city council was given the power and authority to establish a police force, and the recognition of the ordinance of 1003 by the council, and a failure to repeal it, maintained it in its full force and effect, and it was continued under the amendments of 1915. Under the amendments of 1915, the commission was given the same powers theretofore held by the city council, and is given the power “to enact, ordain, alter, modify, or repeal any and all ordinances not repugnant to this charter, and the Constitution and laws of this state.” While that provision is rather uncertain, because if literally construed it would prevent the alteration, modification, or repeal of any ordinance, if it was repugnant to the charter or the Constitution and, laws of the state, still no attempt has been made to repeal the ordinance of 1903, which created the position of city marshal.

In the case of City of San Antonio v. Coul-tress, 169 S. W. 917, decided by this court, it was Held that the position of patrolman had never been established, because the number of patrolmen or policemen had not been specified, but.left it in the hands of the mayor to expand or contract the police force. In other words, there was no provision by ordinance for a police force. The authorities in that case go no further than the Coultress Case, and in none of them has it been held that where an ordinance has provided for a marshal, although it may not have provided for a police force, the provision as to the marshal was not binding and in accord with charter provisions. The ordinance created the office of marshal, because specially named, and not left to any contingency. Moon v. Mayor, 214 Ill. 40, 73 N. E. 408. It follows that, when appellee was appointed in 1913, the de jure office of city marshal was in existence, because it had been duly established by ordinance under the provisions of sections 51 and 65 of the charter of 1903. Very inadequate steps may have been taken to establish a police force, but the head of it at least was created.

If there had been any question as to the right of appellee to the office of city marshal, it has been dissipated by the admission of appellant—

“that on or about the- day of July, 1913, defendant Lancaster was appointed by the then mayor, and confirmed by the then council of said city, as city marshal and chief of police of said city; and under section 17 of the charter then governing said city, * * * the said Lancaster was appointed and had the right to act as such until the general city election, which plaintiff avers was held on the second Tuesday in May, A. D. 1915, and until his successor, if any, should he appointed and qualified.”

It is not claimed that any successor of appellee has been appointed and qualified, nor could he be until such successor was proposed and nominated by the commissioner of fire and police and had been confirmed by a majority vote of the commission. Section 16, par. 2, Amendment of 1915. In view of the admissions in the petition, no writ of injunction could have been properly issued, and a discussion of the law could have been omitted, as it could serve no purpose unless to demonstrate that appellant followed the law in his admissions.

Still, in spite of the admissions, it is contended that, under the terms of the latter part of section 134 of the amendment of 1915, the city marshal went out of office when the mayor and commissioners were elected and qualified. The charter amendment of 1915 names the appointive officers in section 16, paragraph 1, and the city marshal is not included among them ; and he must be ranked, so far as the charter provisions are concerned, as an employs of the police department, who is to be proposed and nominated for his position by the commissioner of the department of fire and police, and consequently would not be included under the description, “all officers of the city of San Antonio.” If he is so included, however, and as fixing his tenure of office he would be, then his term would be for two years, and as admitted by appellant until his successor is duly appointed and qualified. Callaghan v. Tobin, 40 Tex. Civ. App. 448, 90 S. W. 331; Paris v. Cabiness, 44 Tex. Civ. App. 592, 98 S. W. 927. So far as the term of office is concerned, the Constitution designates every employs of the police and fire department as an officer; but under the amendment of 1915 to the city charter he is ranked as an employe, and not as an officer to be named by the mayor. He was, whether employé or officer, entitled to hold the office of marshal for two years and until his successor was duty appointed and qualified. Section 17 of the amendment of 1915 provides that all appointive officers and em-ployés, except day-laborers, unless otherwise specified in the order making the appointment, shall hold office for two years. The Constitution (article 16, § 17) provides:

“All officers within this state shall continue to perform the duties of their offices until their successors shall be duly qualified.”

The city marshal is an officer contemplated in that constitutional provision. Appellant adds to the charter provision, in section 17, the words, “and no longer,” but they are not there, and, if they were, they would not override the Constitution.

The judgment is affirmed.
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