text:
    LANDRUM v. BURRIS.
    (No. 6006.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 27, 1918.)
    Appeal and Ekeob &wkey;51011(1) — Review — Findings. i
    In case tried without a jury, judgment based on conflicting evidence will not be set aside.
    Appeal from District Court, Webb County; J. F. Mullally, Judge.
    Action by John J. Burris against A. J. Landrum. From judgment for plaintiff, defendant appeals.
    Affirmed.
    Mann & Henry, of Laredo, for appellant. A. Winslow and Paul W. Evans, both of Laredo, for appellee.
   MOURSUND, J.

This was an action for debt brought by appellee against appellant for $702.19 and interest, alleged to have grown out of a limited partnership contract between them. The cause was tried without a jury and judgment rendered for appellee for $354.57, with interest thereon from October 24, 1914, at the rate of 6 per cent, per annum, amounting to $55.28, thus making the total judgment $409.85.

The only assignment of error is to the effect that the court erred in rendering judgment for plaintiff for $409.85, in that the evidence showed defendant had paid plaintiff $189 in January, 1914, on the duty money, as well as $200 and some amounts admitted in plaintiff’s petition, and said judgment is $189 more than defendant is indebted to plaintiff. ^

We have read the statement of facts and find that plaintiff’s testimony would support a much larger judgment than the court rendered in his favor. There was a direct conflict between bis testimony and that of defendant, and tbe court, whose province it was to pass upon tbe credibility of tbe parties, resolved tbe conflict in favor of plaintiff. W.e could not set aside tbe judgment without directly invading such province. Appellant appears to rely chiefly on the proposition that he should have been allowed a credit of $189. There was a direct conflict as to whether such item should be credited on the sum due plaintiff out of money refunded for duties. Besides, plaintiff’s testimony, if believed, furnishes sufficient basis for the judgment even if tbe $189 item was credited in accordance with appellant’s contention.

Judgment affirmed.
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source: Caselaw Access Project

author: HIGGINS, J.

license: Public Domain

text:
    AMERICAN METAL CO., Limited, v. SAN ROBERTO MINING CO.
    (No. 790.)
    (Court of Civil Appeals of Texas. El Paso.
    March 21, 1918.
    Rehearing Denied April 11, 1918.)
    1. Witnesses &wkey;344(4) — Impeachment — Business Misdemeanors.
    Since under Pen. Code 1911, arts. 577-580, betting on horse races is a misdemeanor only, fact that witness was interested in operating race track partly supported by betting on horse races was not admissible to impeach him, not being felonious, nor of a vicious or degraded nature.
    2'. Principal and Agent <&wkey;20(l), 120(1)— Relationship — Scope op Authority.
    The fact of an agent’s authority and its scope may be shown by circumstances.
    3. Principal and Agent <&wkey;99 —Delegation op Powers.
    The power of an agent to delegate his authority, like any other power, may be implied from . those powers, customs, and usages positively established by the evidence.
    4. Trial <&wkey;352(5) — Submission op Questions — Assumption op Eacts.
    It is not error for the court in submission of issues to assume as a fact a matter not contested.
    Appeal from District Court, El Paso County; P. R. Price, Judge.
    Action by the San Roberto Mining Company against the American Metal Company, Limited. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    ' Julian B. Beaty, of New York City, E. P. Harris, of Galveston, and U. g. Goen and R. C. Walshe, both of El Paso, for appellant. Jones, Jones, Hardie & Grambling, of El Paso, for appellee.
   Findings of Fact.

HIGGINS, J.

On March 27, 1915, O. A. Bentley, “in representation of tbe San Roberto Mining Company,” as seller, and H. A. Houser, “in representation of Cia. Minera y Compradora de Metales Mexicana,” as buyer, entered into a written contract,' by tbe terms whereof the seller agreed to sell and deliver all carbonates and silicates of zinc then existing on the property of tbe seller, or at its shipping station, and all other carbonates and silicates of zinc ore produced by tbe mine during the life of tbe contract, and to sell and deliver to no one else, except tbe buyer, during tbe life of the contract. The buyer agreed to purchase and receive the same under the conditions stipulated. The contract was to remain in effect until the seller had delivered at least 10,000 dry metric tons of ore. This contract was thus signed: “C. A. Bentley, for the San Roberto Mining Company. H. A. Houser, for Cia. Minera y Com-pradora dé Mexicana.”

Appellee, San Roberto Mining Company, brought this suit to recover damages for tbe breach of the contract against appellant, American Metal Company, Limited, upon the theory that it was tbe undisclosed principal of tbe buyer in said contract. A condensed statement of the facts material to a consideration of this appeal as found by the jury upon special issues is as follows: That Ernest Villareal, agent of the American Metal Company prior to the execution and delivery of above-mentioned contract, authorized H. A. Houser, or tbe company managed by him, to wit, the^Compania Minera y Compradora de Metales Mexicana, to contract to buy for said American Metal Company at a stated, price per ton so much of the output of the San Roberto Mining Company as be could obtain; that it was in the actual or apparent Scope of the authority of Ernest Villareal, agent of the American Metal Company, to authorize Houser, or the Compania Minera y Compradora de Metales Mexicana, to contract to purchase on account of tbe American Metal Company zinc ores from the San Roberto Mining Company, to the extent of 10,000 tons; that Houser, or said Compania Minera y Compradora de Metales Mexicana, in behalf of the American Metal Company, in pursuance of the authority aforesaid, did execute said contract; that the San Roberto Mining Company would have delivered 6,000 tons under said contract to the American Metal Company had not its manager been notified not to deliver said ore. There are other findings, but it is unnecessary to state the same.

Ernest (E. T.) Villareal was an agent and representative of the appellant. He is not to be confused with Edwin (E. M.) Villareal, who was manager of another corporation frequently referred to in 'the evidence.

Upon tbe findings of tbe jury, a judgment was. rendered against the American Metal Company, Limited, and it appeals.

Conclusions of Law.

1. H. A. Houser was a witness for plaintiff. Upon cross-examination he testified that his occupation was that of miner. Error is assigned to the refusal of tbe court to permit defendant to develop the further fact that the witness was interested in the business of operating tbe race track at Tia Juana, Republic of Mexico, wbicb was partially supported by betting on horse races. This was offered'for the purpose of affecting the credibility of the witness. It would not have shown that the witness was engaged in an occupation of a degraded or vicious nature. Railway Co. v. Keller, 33 Tex. Civ. App. 358, 76 S. W. 801; Moody v. Rowland, 46 Tex. Civ. App. 412, 102 S. W. 918; Hitson v. Hurt, 45 Tex. Civ. App. 360, 101 S. W. 293.

Articles 577 to 580 of the Penal Code make pool selling, bookmaking, and betting on horse racing misdemeanors. Such things are not felonious, and are not offenses which involve moral turpitude. Miller v. State, 67 Tex. Cr. R. 654, 150 S. W. 635. The exclusion of the evidence presents no error.

2. The controlling question in this case relates to the sufficiency of the evidence to support the finding that Ernest Villareal was authorized by the appellant to authorize Houser, or the company which he managed, Com-pañía Minera y Compradora de Metales Mex-icana, to enter into the contract upon which the suit is based. That Villareal was the authorized agent to purchase ore is Undisputed. Villareal himself testified that he was the ore buyer for appellant, and had been for the past eight years; that he bought ores for it in the United States, Mexico, South America, and Europe; that he thought he was in charge of the zinc department of appellant in 1913; that he thought he was in charge of the zinc ore purchasing department of appellant in 1913; that he held practically the same position in February, March, April, May, June, and July of 1915.

The evidence bearing upon the issue is largely circumstantial, and we will not undertake to detail the same. The fact of his agency and the extent of his authority may be shown by circumstances. Sargent v. Barnes, 159 S. W. 373. The evidence, considered as a Whole, in our opinion, is sufficient to raise the presumption that Villareal had authority to authorize Houser, or the company which Houser managed, to enter into the contract of March 27th. It is true Villareal denied his authority, but the prima facie case made by the evidence was sufficient to take the case to the jury. They were at liberty to disbelieve Villareal, and upon the face of this record we are not at all prepared to set aside their findings, or to hold that the evidence was insufficient to take the issue to the jury. The power of an agent to delegate his authority, like any other power, may be implied from those powers, customs, and usages positively established by the evidence. It is actual authority, circumstantially shown.

In support generally of the conclusions contained in this paragraph see Oakes v. Cattaraugus Water Co., 143 N. Y. 430, 38 N. E. 461, 26 L. R. A. 544; Sun Printing & Publishing Association v. Moore, 183 U. S. 642, 22 Sup. Ct. 240, 46 L. Ed. 373; Barber v. Stronberg Co., 81 Neb. 517, 116 N. W. 158, 18 L. R. A. (N. S.) 680, 129 Am. St. Rep. 703; Parrott v. Mexican Central Railway Co., 207 Mass. 184, 93 N. E. 592, 34 L. R. A. (N. S.) 261; G. C. & S. F. v. Huyett; 89 S. W. 1118; Mechem on Agency, § 64; Tabet v. Powell, 39 Tex. Civ. App. 465, 88 S. W. 273; Holmes v. Tyner, 179 S. W. 892; Murphy v. Knights of Columbus, 155 Mo. App. 649, 135 S. W. 448; Sargent v. Barnes, 159 S. W. 373; Olcott v. Gabert, 86 Tex. 121, 23 S. W. 987; Pullman Palace Car Co. v. Nelson, 22 Tex. Civ. App. 223, 54 S. W. 626; Mechem on Agency, §§ 106, 193, 194, 197, 280, 311, 365, 366, 367, 413, and 946.

3. Under the evidence in this case the price, terms of payment, and every matter involving personal trust and discretion under the contract sued upon were determined by Villa-real. The contract executed by Houser was in accordance with the decision of Villareal in respect to such matters. It does not appear that Houser himself undertook to exercise any authority involving such trust and discretion. He merely executed a contract, the terms of which were fixed by Villareal.

4. It is objected to the first and second submitted questions that they were upon the weight of the evidence in assuming that Ernest Villareal was an agent of defendant, and had authority to authorize Houser or his company to execute the contract sued upon. The evidence is undisputed that he was an agent and it was therefore proper for the court to so assume. The extent of his authority was not assumed, but was submitted.

5. The authority of Villareal to delegate to Houser authority to make the contract is sufficiently pleaded, and the sufficiency of the evidence upon the issue of Villareal’s authority is disposed of by what has been previously said.

Upon the foregoing conclusions it follows that none of the assignments are well taken.

Affirmed.
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author: ELY, C. J.

text:
    CITY OF SAN ANTONIO v. TERRILL.
    (No. 5991.)
    (Court of Civil Appeals of Texas. San Antonio.
    March 20, 1918.
    Rehearing Denied April 17, 1918.)
    1. Pasties &wkey;>52 — Bringing in New parties — Delay.
    • In city’s action to recover delinquent taxes not assessed until after defendant bought the land under warranty deed, it is proper to permit the answer to make the warrantors parties in the absence of affirmative showing of delay by so doing.
    2. Municipal Corporations <&wkey;972(3) — Tax Assessment — Description oe Property— Sufficiency.
    Description of property in municipal tax assessment: “Name, Mrs. B. E. Horton. N. E. pt. of Blk. O. C. Lot 10, City Blk. A. 62. No. of Receipt 16282. Description of property, R. 1 D. C. 5% acres, Land Imp. 265. Total value 265” — is sufficient under the rule that description of property is sufficient when it furnishes the means by which the property can be identified from the description itself or by the use of extrinsic evidence.
    3. Appeal and Ereoe <&wkey;S82(ll) — Estoppel to Urge Objections — Evidence.
    In city’s action to recover taxes assessed long after the year in which they were due, where defendant objected to introduction of assessment rolls on the ground that the description of the property was totally void, he could not complain that plaintiff introduced no evidence to identify the land.
    4. Taxation t&wkey;421(l) — Description oe Property — Suejbtoiency.
    A vendee cannot insist upon a more accurate description for taxation than. the description given in the conveyance to him.
    5. Taxation &wkey;3511 — Lien—Innocent Pun-en asees.
    The purchaser of land is chargeable with notice that the land has not been assessed if such is the fact, and he is not thereafter an innocent purchaser as against taxes for years during whioh the tax was not assessed against the land, and should, have been so assessed in view of Rev. St. 1911, art. 7528, permitting an assessment of omitted property.
    Appeal from District Court, Bexar County; J. T. Sluder, Judge.
    Action by the City of San Antonio against Dr. J. H. Terrill. Judgment for defendant, and plaintiff appeals.
    Reversed and remanded.
    R. J. McMillan and Robert G. Harris, all of San Antonio, for appellant. Don A. Bliss and Norton & Brown, all of San Antonio, for appellee.
   ELY, C. J.

Appellant sued appellee to recover taxes due on a certain tract or lot of land for the years 1894 to 1912, both inclusive, and on the trial sought to introduce certain copies of the assessments on the land, which for the years 1894 to 1908, inclusive, were made by the city commissioner of taxation. in 1909, but all the assessments were excluded by the court. Appellee made his warrantors parties, and ashed for judgment against them in case judgment should be rendered against him. The cause was tried by jury, and verdict and judgment rendered for appellee. Judgment was also rendered that appellee take nothing as to the warrantors.

The assessments were declared void by the court for the reasons that the land was not described with sufficient certainty to identify it, and that appellee had purchased the land on December 17, 1908, from Mrs. B. E. Horton and the Horton heirs, and as to all taxes before that time was an innocent purchaser, .and obtained the land free of tax liens or tax liability. This suit has been appealed on a ■bill of exceptions as permitted by article 1007, Revised Statutes.

The first assignment of error assails the action of the court in overruling an exception to that part of appellee’s answer that sought to make the warrantors of appellee parties to the suit. It is contended that it is against public policy to postpone and delay the state in the collection of its taxes, and, if that proposition was well founded, still the record fails to show that impleading the war-rantors caused any delay. There is no premise for the argument made in the brief, and we cannot enter the field of speculation, as appellant would have this court to do, and charge up the delay of over five years from the time the suit was instituted until a trial was had to the warrantors being made parties. Appellant admits that “there is no proof in the record as to the cause of the delay,” and we cannot draw on our imagination to supply such proof. Appellee should not be compelled to bring a separate suit against his vendors for taxes he may be compelled to pay, but the matter can and should be settled in this suit. The assignment of error is overruled.

By section 30 of the charter of the city of San Antonio the commissioner of taxation is authorized to “assess property which has been omitted from assessments during past years upon the next assessment roll after discovering that fact, and at the same rate such property should have been assessed for such past years, giving the year for which it is assessed, and the taxes thereon shall be collected in the same manner as other assessments.” The commissioner of taxation is also given “all the rights that are now or may be hereafter conferred upon county assessors of this state.” It is provided in article 7565, Revised Statutes:

“If the assessor of taxes shall discover in his county any real property which has not been assessed or rendered for taxation for any year since 1870, he shall list and assess the same for each and every year for which it has not been assessed, in the manner prescribed in the preceding article; and such assessment shall be as valid and binding as though it had been rendered by the owner thereof.”

In article 944 in cities and towns chartered under the general law assessment for past years is permitted and authorized. Wherever such statutes have been enacted they have been held valid. Cooley on Taxation, p. 607 et seq., and footnotes.

The description of the land was:

“Name, Mrs. B. E. Horton. N. E. pt. of Blk. O. C. Lot 10, City Blk. A. 62. No. of receipt 16282. Description of property, R. 1 D. C. 5% acres, Land Imp. 265. Total value 265.”

The values were different in different years. Description of property in an assessment for taxes is sufficient when it furnishes the means by which the property can be identified from the description itself or by the use of extrinsic evidence to apply that description to the property. Eustis v. City of Henrietta, 90 Tex. 468, 39 S. W. 567; Slaughter v. City of Dallas, 101 Tex. 315, 107 S. W. 48; Grace v. Bonham, 26 Tex. Civ. App. 161, 63 S. W. 158; Slaughter v. Dallas, 103 S. W. 218. In the Slaughter Case cited the description was:

“Name of owner, G. G. Wright. No. of acres, -. No. Lots 25x100. No. block, 61. Value grounds, $12,500, yalue improvements, 2,000; description, Main Street.”

That description is held to be sufficient, and it is more indefinite than the one under consideration. The court cited the cases of Hermann v. Likens, 90 Tex. 448, 39 S. W. 282, and Taffinder v. Merrell, 95 Tex. 98, 65 S. W. 177, 93 Am. St. Rep. 814, the first referring to the description in a conveyance, and the latter to a description in a decree of partition, and held:

“Now, can any more particularity be required in a tax assessment than in a conveyance or a decree of partition? We think not. There are no degrees in certainty. What is certain in the one case must be certain in the other, and what can be made certain in the one case can be made certain in the other. If any distinction should be made, it would seem to be in favor of more generality in tax assessments. The forms furnished for assessments and in universal use for that purpose do not afford sufficient space for a full description of real estate, except in a few cases, such, for example, as town lots, and where the owner is rendering all of an original survey.”

It cannot with any show of consistency be claimed that appellant should have offered testimony to identify the land, when the objection to the assessment rolls was made on the ground, not that the description was uncertain and voidable, but that the descriptions “were insufficient and defective and consequently void,” and the objection was sustained by the court. It would have been a nugatory and vain act to attempt to introduce evidence to render a void document valid. No amount of evidence could have given the assessments vitality if they were void.

In the objections set out in the second bill of exceptions appellee admitted that the land described in the assessment rolls had been acquired by him from Mrs. B. E. Horton and the Horton heirs, which would identify the land ,as that assessed against Mrs. B. E. Horton. Presumptively the land was described in the deed of conveyance to appellee as in the assessment rolls, and if the description was sufficient to convey the land to appellee, it was sufficient for purposes of taxation. If the description was sufficient in the petition to indicate to appellee that it was his land, it was sufficient for purposes of taxation. Appellee could not insist on a more accurate description than that given in the conveyance to him.

The claim of appellee that he was an innocent purchaser cannot be sustained. He was charged with knowledge that the land of B. B. Horton had not been assessed for taxes during the years 1894 to 1908, and that they could be assessed by the commissioner of taxation, and doubtless would be assessed when the omission was discovered. It is true that the omitted assessments were fox-taxes that arose before appellee purchased the land, but it was incumbent on him to examine records and assessment rolls before purchasing and protect himself against any back taxes. As said by Judge Cooley in discussing reassessments, which applies with equal force to assessments made for past years:

“The only cases in which hardship is likely to be inflicted by such legislation are those in which a tax is reassessed upon an estate which has changed hands since the tax should have been collected from it; but a proper examination of the records will in most cases lead the purchaser to a discovery of the liability, and enable him to provide against it.” Cooley, Taxation, pp. 527, 528.

Appellee could not have beén an innocent purchaser, if a purchaser can ever be an innocent purchaser as against unpaid taxes. The laws of Texas fully notified him of all matters necessary for him to have ascertained that the taxes for many years had not been paid on the land. He was charged with the knowledge also:

That “all taxes upon real property shall be a lien upon such property until the same shall have been paid,”, and, further, that “should the assessor fail to assess any real estate for any one or more years, the lien shall be good for every year that he should fail to assess for; and he may. in listing property for taxes any year thereafter, assess all the back taxes due thereon, according to the provisions of this title.” Rev. Stats, art. 7528.

The authorities cited by appellee do not militate against the rulings herein made. In the case of the State v. Farmer, 94 Tex. 232, 59 S. W. 541, the court held the description insufficient because there were two tracts of land in the county to which the description might apply, but the court said:

“If the description given in the assessment is such that by applying it to the land it can be identified, it is a substantial compliance with the requirements of the statute and the lien attached.”

The court in effect held there were ho assessments of the land, and the question of assessments made for past years under the statute was not before the court, and no authoritative decision could be rendered thereon. To hold that laws providing for the assessment of back taxes on land do not create a lien on the same, which would follow the land, no matter into whose hands it might pass, would hamper the collection of taxes and cripple the finances of the state. Appellee would not be liable personally for the taxes, but the lien would follow the land into his hands. City of San Antonio v. Toepperwein, 104 Tex. 43, 133 S. W. 416; Garza v. Hammond, 39 S. W. 610. In the Toepperwein Case, 124 S. W. 699, this court held:

“Every one is charged with knowledge of taxes, and of the existence of the lien they carry, and especially so a person who undertakes to pay all taxes, or takes subject to all taxes.”

The Supreme Court reversed the judgment on no- ground except that the city should have recovered for the penalties as well as the taxes. The Supreme Court- held Toep-perwein liable for the taxes, not because he had agreed that he took the land subject to the taxes, but because the lien followed the land.

The judgment is reversed, and the cause remanded.
      iteroFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: KING, J.

text:
    BARCLAY et ux. v. DISMUKE et al.
    (Court of Civil Appeals of Texas. Beaumont.
    Nov. 23, 1917.
    Rehearing Denied April 10, 1918.)
    1. Estoppel <©=»52 — Estoppel in Pais.
    Where one by his acts, declarations, or silence, where it is his duty to speak, has induced another, in reliance on such acts, declarations, or silence, to enter into a transaction, he shall not later, to the hurt of the person so misled, impeach the transaction, being estopped so to do.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Estop-pel.]
    2. Homestead &wkey;122 — Rights op Mabeied Women — Estoppel op Wife.
    A married woman’s title to her homestead cannot be vested out of her by an estoppel, worked by the conduct and declarations of her husband, to which she is not á party.
    3. Dedication &wkey;53 — Alleyway — Sale op Dand.
    Where land was sold and conveyed with reference to an alley, the purchaser acquired by dedication an easement in such alley which became charged with the incidental servitude, and the purchaser could have the alley kept open.
    4. Dedication &wkey;>53 — Alleyway • — Suit to Keep Open — Special Damage.
    Where land was sold- with reference to an alley which the seller dedicated as an inducement to the purchaser, such purchaser, suing to keep the alley open, is not required to plead and prove special injury to his property, as where a public road running by a person’s farm is sought to be closed, to enjoin which special damage must be done the individual plaintiff; the suit not being brought by some person intrusted with the duty for the.public.
    Appeal from District Court, Tyler County; W. R. Blackshear, Judge.
    Suit by R. B. Barclay and wife against E. A. Dismuke and others. From the judgment, plaintiffs appeal.
    Reversed and rendered.
    J. A. Mooney, of Woodville, for appellants. Thomas & Wheat, of Woodville, for appellees.
   KING, J.

Suit by appellants against ap-pellees, in the ordinary form of trespass to try title, and with further pleading that appellees be required to open up a 20-foot alley between them, was filed in the district court of Tyler county on the 14th day of July, 1915, together with a plea of five and ten years’ limitation.

Appellees- answered, disclaiming all of the land described, except such part as was included in certain field notes pleaded by them; also general demurrer and plea of not guilty. The warsantotrs of appellees were made parties defendant, and affirmative relief was also asked against appellants for certain alleys inclosed by them.

A trial was had without the aid of a jury, and the court on February 22, 1917, rendered judgment to all that part of the land sued for, except a certain strip embraced in ap-pellees’’ field notes to appellants, and in favor of appellees for said strip, and requiring appellees to open up a 20-foot alley, and denying appellees’ prayer for opening up a street inclosed by appellants, and injunction prayed for by them. The warrantors were discharged, with costs. The case is properly before this court for revision. .

In 1881, T. D. Rock, the agreed common source, conveyed to Ellen Barclay, wife of R. B. Barclay, a part of a block of land within or near the town limits of Woodville, described as follows: '

“Beginning one hundred and ninety (190) feet S. 2° east of the southwest corner of lot No. three (3) in block six (6) in the town of Wood-ville on east side Magnolia street' (the above distance of 190 feet gives a 30-foot street S. of said lot No. 3, and 20-foot alley between said T. D. Rock’s land and the land sold to Ellen Barclay), a corner stake; thence south 2° east (80 yds.) eighty yards to a stake for corner; thence N. 88° E. eighty yards (80) a stake for corner; thence N. 2° west 80 yds., a stake for corner; thence S. 88 W. eighty yards to the beginning.”

In 1914 all of the heirs of T. D. Rock conveyed to Mrs. Betty Dismuke the following described lots:

“Beginning at the N. W. corner of a tract of land conveyed to Mrs. Ellen Barclay by T. D. Rock and wife by deed dated December, 1881; * * * hence north 60 yards alongside of the public road leading from Woodville to Beaumont to a stake for corner on Beaver street; thence east 80 yards alongside Beaver street to a stake for corner; thence south 60 yards to the northeast corner of said Mrs. Ellen Barclay’s tract of land; thence west 80 yards to the place of beginning — containing one acre of land, more or less.”

The judgment of the court .was in favor of appellants for the first-described tract, save and except any part of same that might be in conflict with the last-described tract. The court also found by the judgment:

That the real issue in the suit is the location of the boundary line between the premises of appellants and of appellees, and that the true north boundary line of appellant “is a line running from a point about 195 feet south of the S. W. corner of lot 3 in block 6 by allowing a 30-foot street between said block and appel-lees’ property, and also a 20-foot alley as hereinafter designated, which point is at a stake near the N. W. corner of plaintiffs’ yard fence; thence running east 80 yards with the plaintiffs’ fence.”

The. court further found that T. D. Rock intended an alley between the property of appellants and appellees the width of 20 feet, and that R. B. Barclay and Mrs. Ellen Barclay and. the public generally have an easement over the alley 20 feet wide, as dedicated and granted and described in the deed from T. D. Rock to Mrs. Barclay of date 1881, and that appellants shall forever have the right to keep said alley open, and to use the same for all lawful purposes as an alley, and that the boundary line, as fixed by the court as the north line of appellants’ lot, should be the south and base line of said alley. The court also found that the call in the deed from Rock to Mrs. Barclay should read, “Beginning 190 feet south 2 degrees west” from the S. W. corner of lot 3 in block 6, instead of “190 feet south 2 degrees east.”

We find as a fact from the judgment of the court and from the evidence in the record that the beginning point of Mrs. Barclay’s lot is 190 feet south 2 degrees west from the southwest corner of lot 3 in block 6 in the town of Woodville. The lower court erred, however, in designating appellants’ north fence as the north boundary line of their lots.

Appellants’ northwest comer is here established 190 feet south 2 degrees west of the southwest corner of lot 3 in block 6, and their north line is fixed beginning at that point and running north 88 degrees east. The north line of appellants, as here located, is hereby constituted the south or base line of the alley; the north line being established 20 feet north of said south line.

It is conceded that T. D. Rock is the common source of title. The deed from Rock, December 20, 1881, vested title to such land as was described therein in appellants, who moved upon the land in 1882, and have resided thereon continuously since that date, as their homestead, and were living thereon when this suit was tried. They have paid all taxes every year, and have been claiming all of the land described in said deed. The heirs of T. D. Rock therefore conveyed to appellees only such land the title to which remained in their ancestor after the deed to appellants. The judgment of the lower court divested appellants of title to a strip of land which is included' in the field notes from the common source to appellants.

Appellees raise the question of estoppel by acts and declarations of appellant Barclay. Conceding that appellant R. B. Barclay did point out to numerous persons a stake which he claimed to be his corner, and that appellee understood from him that he was claiming such point as his corner, and his yard fence as his line, when we measure his' conduct and statements by the general rule as to estoppel in pais, we believe that they fall short, and that he himself would not be estopped thereunder. In order to constitute an estoppel, as a general rule, there must be a concurrence of the following circumstances: (1) There must be a representation or concealment of material facts; (2) the representation must have been met with none of the facts; (3) the party to whom it was made must have been ignorant of the truth of the matter; (4) it must have been made with intention that the other party would act upon it; (5) the other party must have been induced to act upon it.

The rule of estoppel is that, where one by his acts, declarations, or silence, where it is his duty to speak, has induced another, in reliance on such acts, declarations, or silence, to enter into a transaction, he shall not, to the hurt of the person so misled, impeach the transaction. - It will be borne in mind that appellees were not purchasing land from appellants, and it is not clearly shown in'the record that appellants knew for what purpose appellees and others were trying to locate the line. Dismuke could locate the north boundary line of appellants’ lot by his deed from the Rock heirs, because his beginning point, as recited in the deed, is the northwest corner of appellants’ lot. Therefore appel-lees could not have been ignorant of the truth of the matter represented to them by appellant. Furthermore, it is not shown in the record that the declarations and statements of appellant were made with intention that appellees should act upon them to their hurt. But, conceding that appellant R. B. Barclay is estopped, there is not one word or act, so far as we can find, of Mrs. Barclay, prior to the purchase by appellees, and this being her homestead, title could not be vested out of her by the conduct and declarations of her husband, when she in no wise was a party to such conduct and declarations.

The deed from T. D. Rock to appellants is not subject to the construction contended for by appellees, that is, that the 190-foot distance expressed from the southwest corner of lot 3 in block 6 should exclude the 30-foot street south of block 3 and 20-foot alley north of the lots bought by appellant, making in' reality, according to their contention, 240 feet. A measurement according to such contention would not be consistent with the locations as claimed by appellants or appellees.

We have given careful consideration to appellees’ cross-assignments of error, and are of opinion.that they should be overruled. We do not think that the trial court erred in decreeing an easement over an alley 20 feet wide, but did err as to the location of said alley. We think that there was sufficient dedication shown upon the trial. It will be borne in mind that Rock sold this land with reference to such alley, and the same was mentioned in the deed from him to appellant.

The cases cited by appellees are not applicable to the state of facts in this case. In Wolf v. Brass, 72 Tex. 133, 12 S. W. 159, one of the authorities cited by appellees, it is held:

“Technically speaking, a dedication can be made to public uses only; but if the proprietor of the fee sells and conveys lots with reference to an alley or street not then opened on land owned by him, the individual purchasers thereunder acquire an easement in the land designated as an alley or street, and such alley or street becomes charged with the servitude incident to such easement. Such purchasers have, by virtue of the easement thus acquired, the right to have such street or alley kept open, whether the public has or not accepted the dedication by some acts of user.”

Appellees further insist that it was necessary for appellants to allege and prove special injury which is different in kind and degree from that which results to the public. That is true as a general rule, and also usually it is necessary that the suit he brought by some person in a public capacity, but that rule does not obtain in a case like the one before us, where the owner of property sold land with reference to streets and alleys that he himself dedicated as inducements to purchasers, and such purchaser is not required to plead and prove special injury to his property, as in the case, for example, where a public road running by a person’s farm is sought to be closed. In that event suit should be brought by some person intrusted with the duty for the public, and an individual could prosecute the suit only by pleading and showing special injury to his land, by virtue of the closing of said road. This is, in effect, the extent of the holdings in the cases cited by appellees.

With reference to appellees’ objection to the consideration of appellants’ brief, because there is not subjoined to each proposition a brief statement, in substance, of the proceedings necessary and sufficient to explain and support the proposition with reference to the page of the record, as required by rule 31 (142 S. W. xiii), while some of appellants’ statements under their propositions are rather brief, we think they are in substantial compliance with the rules.

This cause is reversed and rendered, in accordance with this opinion.
      ©=»For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HARPER, C. J.

text:
    OGBURN v. LOOP LAND & IRRIGATION CO. et al.
    (No. 825.)
    (Court of Civil Appeals of Texas. El Paso.
    March 28, 1918.)
    Appeal and Error <&wkey;>123 — Judgments Ap-pealable — “Final Judgment.”
    A judgment merely finding the facts and conclusions of law without pronouncing the legal consequences of the facts found is not a final judgment, and is not appealable.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Final Decree or Judgment.]
    Appeal from District Court, Ward County; Chas. Gibbs, Judge.
    Action between J. W. Ogburn and the Loop Land & Irrigation Company and others. From the judgment rendered, Ogburn appeals.
    Appeal dismissed.
    Starley & Carson, of Barstow, for appellant. B. W. Baker, of Barstow, for appellees.
   HARPER, C. J.

This is a suit for specific performance of a contract of sale of land. According to the transcript, the following is a description of what is termed “judgment entered.” It recites:

“Be it remembered that upon this, the 13th day of June, 1917, the above styled and numbered cause came on for trial, and, after considering the evidence offered, the court finds that the following facts have been established:
[Then follows a copy of the findings of facts and conclusions of law appearing upon other pages of the transcript.]”

There is no declaration of the court pronouncing the legal consequences of the facts-found, without which there is no final judgment such as to give this court jurisdiction-to ..consider and determine the questions involved. The appeal must therefore be dismissed at cost of appellant. Trammell v. Rosen, 106 Tex. 132, 157 S. W. 1161.

Dismissed.
      <§ss>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


text:
    GULF, C. & S. F. RY. CO. et al. v. CHAPPELL et al.
    (No. 318.)
    (Court of Civil Appeals of Texas. Beaumont.
    April 17, 1918.)
    Negligence <&wkey;23(2) — Turntables—Look.
    That the lock bar on a turntable was left in place by railroad employés using the turntable does not affect the liability of the company for injury to child playing on the turntable; such-lock bar not being a secure fastening, but used simply to hold the turntable track in line when-switching, and being easily shaken loose by trespassing children, and having been in fact shaken-loose by children on the day of the injury.
    Appeal from District. Court, Milam County; J. C. Scott, Judge.
    On rehearing.
    For former opinion, see 201 S. W. 1037.
    F. J. & C. T. Duff, of Beaumont, and Terry, Cavin & Mills, of Galveston, for appellants. A. J. Lewis and W. A. Morrison, both of Cameron, for appellees.
   KING, J.

Appellants have called our attention, in their motion for rehearing, to their supplemental, brief containing their seventh assignment of error, which we overlooked when this case was under submission. Said, assignment is to the effect that the court erred in its findings and conclusions that the-defendahts are liable herein, because the-undisputed evidence shows that the turntable-was on private property of defendants; that defendants had equipped the same with the-lock bar, which held it fast and immovable; that after same was used by defendants-before the accident the lock bar was properly-placed so as to secure said turntable.; that the injured child was a trespasser; that none of defendants’ employés unlocked said turntable, but same was misplaced by some-trespasser without defendants’ knowledge or consent.

In support of this assignment appellants-rely upon the testimony of John Chandler, who testified that the turntable was used on-December 22d, three days prior to the accident to Clara Chappell, and R. Esquivilie, J. B. Scott, and H. W. Bridges, enginemen and trainmen in charge of the engine which was-turned on the table on that date. They testified that 'the lock bar, which was a locking device to prevent said turntable-from moving, was left in place by tbem when they turned the engine on said day.

We are unable to find any testimony as to whether any other engine ’ had been turned in the interim. This would not change the decision in this case, because the witness John Chandler testified that the iron bar did not lock the turntable like a lock and key; that the children could shake the iron bar loose, and that every time they played on it, they did shake it loose; that they found the turntable in this condition that day; and that they did shake the lock bar loose on the ■day when Clara Chappell was hurt. His testimony shows that the lock bar was, in fact, not a secure fastening, but was simply used for the purpose of holding the track on the turntable in line with the track on the switch leading to the turntable, and that all the children had to do was to get on the turntable and shake this lock bar loose.

We therefore overrule said assignment of error.


text:
    OLGUIN v. APODOCA.
    (No. 831.)
    (Court of Civil Appeals of Texas. El Paso.
    March 14, 1918.
    Rehearing Denied April 11, 1918.)
    Aepeal and Ebbob <&wkey;301 — Motion bob New Trial — Assignments of Ebbob.
    Under Rev. St. 1911, art. 1612, as amended by Acts 33d Leg. c. 136 (Vernon’s Sayles’ Ann. Oiv. St. 1914, art. 1612), providing that where a motion for new trial has been filed the assignments therein shall constitute the assignments of error, assignments of error, which are not copies of any paragraphs of the motion for new trial, but are reconstructed assignments, cannot be considered.
    Appeal from District Court, El Paso County; Ballard Coldwell, Judge.
    Action between Andres Olguin and Benan-eia Apodoca. Judgment for Apodoca and Olguin appeals.
    Affirmed.
    C. L. Vowell, of El Paso, for appellant. Brown & Wilchar and Claude Lawrence, all of El Paso, for appellee.
   HIGGINS, J.

The assignments of error presented in appellant’s brief are not copies of any paragraphs of the motion for new trial. They are reconstructed assignments. This is not permissible. The assignments cannot be considered. Article 1612, R. S., as amended by Acts of 1913, p. 276 (Vernon’s Sayles’ Ann. Civ. St. 1914, art. 1612). It has been repeatedly so held. Edwards v. Youngblood, 160 S. W. 288; Iowa, etc., v. Walcowich, 163 S. W, 1054; Watson v. Patrick, 174 S. W. 632; Oil Co. v. Crawford, 184 S. W. 728; and numerous other cases.

The entire record has been carefully examined to ascertain whether any fundamental •error appears which would require reversal, whether properly assigned or not. None .such appears. It follows that the judgment must be affirmed.

Affirmed.
      <§z»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: BROOKE, J.

text:
    JONES v. SCHNAUFER et al.
    (No. 346.)
    (Court of Civil Appeals of Texas. Beaumont.
    March 29, 1918.)
    1. Appeal and Ebbob <&wkey; 1003 — Review —• Juby Findings.
    Inasmuch as it is the province of the jury to pass upon the credibility of witnesses and the weight to be given to their testimony, the court on appeal will not, except in extreme cases in which a great preponderance of the evidence shows conclusively that the result reached by the verdict is wrongful, disturb jury findings.
    2. Trial <&wkey;251(4) — Instructions on Matters Not in Issue — Refusal.
    In suit to recover for services rendered deceased, refusal of requested instruction as to promise of deceased to compensate plaintiff by provision in will, a matter not in issue, was not error.
    3. Appeal and Ebbob <&wkey;>1050(l) — Harmless Ebbob — Admission oe Hearsay Testimony.
    In suit to recover for services rendered deceased, while it was error to permit witness to answer, over objection, question as to whether deceased had said anything with reference to her mother, where the answer .was, “Her pay will be left in the will,” the admission of such hearsay testimony was harmless.
    Appeal from District Court, Harris County; Hy. J. Dannenbaum, Judge.
    Suit by Elizabeth Schnaufer and others against Ira P. Jones, executor of the Estate of Julia Bartels, deceased. Judgment for plaintiffs, and defendant appeals.
    Affirmed.
    Jones & Jones and Ross & Wood, all of Houston, for appellant. . Menefee & Xork, of Houston, for appellees.
   BROOKE, J.

This suit was brought by Elizabeth Schnaufer and husband against Ira P. Jones, independent executor of the estate of Julia Bartels, deceased, and others. The suit was filed January 7, 1914, at which time temporary administration on the estate of said Julia Bartels and application for probate of her will was still pending. Said will was admitted to probate in March, 1915, and Ira P. Jones qualified as independent executor. The plaintiff made all devisees under the will and all heirs of said Julia Bartels parties defendant, and after answers filed by them dismissed all parties except the said Ira P. Jones, executor. The suit was for the recovery for services rendered as cook .and help and nurse for Mrs. Bartels and others in her house, and the allegations were that her services were worth $20 per month; that from November 1, 1911, to the death of Mrs. Bartels on January 1, 1912, said services were greatly increased on account of the condition and illness of Mrs. Bartels, and required more of plaintiff’s time, and that the disease was offensive and unpleasant, and the services she performed were worth $5 per day. The defendant admitted his qualification as executor, denied all the other allegations, and denied that there ever existed any contract by the decedent with the plaintiff, or any other person for her, and that said services were never performed, and tlie decedent never became liable tberefor, and waived all objections as to tbe prematurity of the filing of said suit. Upon the pleadings there was a trial by jury, which commenced on January 30 and concluded on February 3, 1917. The matters' were submitted to the jury on the following special issues:

“First. Did Mrs. Elizabeth Sehnaufer render services as a nurse to Mrs. Julia Bartels at the house of Fred Bartels, on Weber avenue, at any time from September 15, 1911, to the death of the said Mrs. Julia Bartels, which services, if any were rendered, were of such a character as to lead to a reasonable belief that it was the understanding of the said Mrs. Schnau-fer and the said Mrs. Julia Bartels that pecuniary compensation should be made for such services?”

To this question the jury answered, “Yes.”

“Second. If you find that such services were rendered by the said Mrs. Elizabeth Sehnaufer as a nurse, for what period of time, were such services rendered, and what was the value of such services?”
To this question the jury answered: “From September 16, 1911, to January 7, 1912, inclusive, at $2.50 per day, or a total of $285.00.”

On this verdict judgment was rendered in favor of plaintiff against defendant in the sum of $285. There was a remittitur filed of $144, which, deducted from the amount of the judgment, leaves a balance of $141, for which judgment was entered. Motion for new trial was overruled, and the case is now before this court for consideration.

The first assignment of error complains that the jury erred against the weight and great preponderance of the evidence adduced on the trial, and their verdict was not supported thereby. This, together with the second assignment of error, which calls in question the sufficiency of the number of days or the amount of time for which-services as a nurse were rendered, and the fourth assignment, which urges that there was no evidence to warrant the jury in returning a verdict for $2.50 per day; and the fifth assignment, which calls in question the fact that there was no evidence of the amount of time spent by the plaintiff as a nurse, relates to the sufficiency of the evidence in the case.

We shall not undertake to set out the testimony of the various witnesses. It is exclusively the province of the jury, under the laws of this state, to pass upon the facts of every case; and, while we do not go to the extent of concurring in the opinions of some of the courts that, if there be any testimony to support the verdict of the jury, the same will be upheld, we do, however, say that, inasmuch as it is their province to pass upon the credibility of the witnesses and the weight and value to be given to their testimony, we will not, except in extreme cases, in which a great preponderance of the evidence shows conclusively, to our minds, that the result reached by the verdict is wrongful, disturb their findings. In this case we have gone carefully over the statement of facts, and we do not believe that this verdict should be disturbed, and so believing, the assignments from 1 to 5, inclusive, will be overruled.

Appellant’s sixth assignment predicates error upon the action of the court in refusing to give special charge No. 2 requested by the defendant, said charge reading as follows:

“You are charged that if you believe from the evidence that there was no agreement, either expressed or implied, upon the part of Mrs. Julia Bartels to compensate the plaintiff. Sirs. Sehnaufer, either by making a provision for her in the will of the said Mrs. 'Bartels or otherwise, for the services rendered by the plaintiff, Mrs. Sehnaufer, if any such services were in fact rendered, then in such case you will let your verdict be for the defendant, although you may believe that the plaintiff, Mrs. Sehnaufer, rendered such a service under the expectation that she would be compensated therefor by the provision made for her in the will of Mrs. Julia Bartels.”

There was no allegation in plaintiff’s petition of any promise by Mrs. Bartels, either expressed or implied, to compensate Mrs. Sehnaufer by a provision in her will, and no allegation that such promise was relied upon by her. In other words, it was not an issue in this case, and we do not understand how the refusal of same could have been error. Said assignment is overruled.

The seventh and eighth assignments are with reference to the admission in evidence, over the objection of defendant, of a question propounded by counsel for plaintiff, to the effect of asking witness whether Mrs. Bartels had said anything to her with reference to her mother, to which the witness replied, “Yes,” etc. This testimony was hearsay, and its admission was error.. However, we are of opinion that it was harmless error, because the answer to same, which was, “Her pay will be left in the will,” did not and could not, in our judgment, cause the jury to be prejudiced against the appellant, and would only be apparent evidence of the kindly and friendly feeling of the deceased toward the appellee. However that may be, while, as above said, it was error to admit the testimony, it is not of sufficient gravity to warrant us in reversing this ease.

A careful consideration of the record leads us to the conclusion that there was not such error in the action of the trial court as would warrant a reversal of the cause. It is therefore affirmed.


author: HAWKINS, J.

text:
    CARROLL v. WILLIAMS, County Treasurer, et al.
    (No. 2919.)
    (Supreme Court of Texas.
    April 10, 1918.)
    1. Counties <&wkey;195 — TRANSFER of Money Between Funds — Statutes.
    Rev. St. 1911, art. 1440, empowering the commissioners’ court to transfer money from one fund to another, except that the funds belonging to class first shall not, except in ease of excess thereof, be diverted from the payment of the claims to which they are appropriated by article 1438, does not deal with the classes of county funds designated in Const, art. 8, § 9, as to taxation, but only with the statutory funds classed by article 1438.
    2. Counties <&wkey;195 — Taxation — Transfer of Funds— Subterfuge.
    Even were Rev. St. 1911, art. 1440, empowering the commissioners’ court to transfer money from one fund to another, to be held applicable, ordinarily, to constitutional as well as statutory funds, the transfer would not be permissible, where money was raised by taxation ostensibly and avowedly for one purpose, but in reality for the purpose of such transfer.
    3. Counties &wkey;>195 — Taxation — Application of Funds — Provisions of Constitution.
    Const, art. 8, § 9, providing no county shall levy more than 25 cents for county purposes, 15 cents for roads and bridges, 15 cents to pay jurors, 25 cents for permanent improvements, controls not only the raising but also the application of all such funds, and so prevents the expenditure of money raised by taxation for one of such purposes for another thereof; and this though there is more in the fund from which the transfer is made than is necessary to meet the current demands against it, and though the maximum levy had not been made for the purpose to which it is transferred.
    Error to Court of Civil Appeals of Ninth Supreme Judicial District.
    Action by W. M. Carroll against H. L. Williams, County Treasurer, and others. Judgment for plaintiff was reformed hy the Court of Civil Appeals (182 S. W. 29), and plaintiff brings error.
    Affirmed in part, and reversed in part.
    Chenault O’Brien and George Chilton, both of Beaumont, for plaintiff in error. Jas A. Harrison and Geo. D. Anderson, both of Beaumont, for defendants in error.
   HAWKINS, J.

The material facts which are disclosed by the record and are binding upon this court are to this effect:

Annually, for several years prior to 1914, the commissioners’ court of Jefferson county, as part of a general scheme for exacting from taxpayers and expending on roads and bridges of tbe county more money than tbe Constitution of this state permits to be raised by taxation and expended for that purpose, deliberately and purposely levied, for various other purposes defined by said Constitution, taxes which were known by that court, at the times of such levies thereof, to be much greater in amounts than were required to meet the current expenditures for such other purposes, and afterwards transferred such excesses in such funds to the road and bridge fund, and expended same accordingly.

The general purpose of this suit was to stop that practice. Specifically the action affects the expenditure of a large sum of money derived from such excessive tax levy for the year 1914. In pursuance of said scheme, and in addition to a road and bridge tax of 27.05 cents on the $100 valuation of property, the commissioners’ court had levied, for 1914, for general “county purposes,” a maximum tax of 25 cents per hundred; said latter rate being intentionally and largely excessive, and out of the proceeds thereof, and on May 12, 1915, had transferred to the road and bridge fund an estimated excess amounting to $40,000.

Acting as a taxpayer, and for himself and others similarly situated, plaintiff in error, Carroll (one of the commissioners), through a petition setting out pertinent allegations, sought from the district court an injunction perpetually to prevent the defendant in error Williams, as county treasurer, from paying out, .on warrants drawn against the road and bridge fund, all or any portion of the $40,000 so transferred. A restraining order having been issued, and the county treasurer, the commissioners’ court, the county judge, , and the county commissioners other than Carroll having answered, the district court, upon a formal hearing, found from the evidence that the allegations of Carroll were' substantially true, as indicated herein, and that of the money so transferred $2,560 had been paid out on warrants drawn against the road and bridge fund, leaving of said $40,-000 a residue of $37,440, and thereupon, on May 25, 1915, temporarily enjoined the county treasurer from paying out said residue or any portion thereof on warrants drawn against the road and bridge fund.

Upon appeal tbe Court of Civil Appeals for tbe Ninth Supreme Judicial District did not disturb the trial court’s findings of fact, upon which no question has been raised, but found, among others, these facts: (a) That said taxes for the road and bridge fund for 1914 aggregated $14,958 less than would have been realized from a levy on a maximum legal basis of 30 cents per hundred, half of such maximum rate being expressly and unconditionally authorized by said Constitution and by statute, and an additional 15-cent rate for the further maintenance of the public roads at a referendum county election. (b) That at date of said transfer tbe road and bridge fund contained an unexpend-ed balance of about $4,176.70. (c) That prior to tbe service of the writ of injunction, and out of the money so transferred, $2,560 had. been expended on warrants drawn against tbe road and bridge fund.

Adding tbe two last-mentioned amounts, and deducting their sum from tbe difference-between the proceeds of said actually applied tax rate oí 27.05 cents and what would have been the proceeds of said maximum rate of 30 cents for roads and bridges, had it been applied ($14,958.00 — [$4,176.70 + $2,560.00 = $6,736.70] = $8,221.30, and calling the resulting amount $8,222.00), the Court of Civil Appeals held that such amount, in addition to said $2,560, aggregating $10,782, and only that much had been legally transferred out of the $40,000 to the road and bridge fund; whereupon the court so reformed the judgment of the trial court as to permit payment of an additional $8,222 out of said $40,000 on warrants drawn against the road and bridge fund, but in all other respects affirmed the judgment of the trial court. However, upon motion for rehearing, the Court of Civil Appeals admitted error in making said deduction of said unexpended balance, and. so reformed its judgment as to permit payment of an additional $12,398, instead of only $8,222, out of said $40,000, on road and bridge warrants. 182 S. W. 29. Each side presented here a separate application for a writ of error, which this court granted.

In behalf of the county treasurer and the commissioners’ court, it is contended, here, that said transfer of the $40,000 and the expenditure thereof on roads and bridges are fully authorized by R. S. 1911, art. 1440, when properly construed in conjunction with articles 2242 and 7357; but in behalf of plaintiff in error, Carroll, it is urged that such transfer is inhibited by section 9 of article 8 of our state Constitution.

Our Constitution provides:

“No county, city or town shall levy more than twenty-five cents for city or county purposes, and not exceeding fifteen cents for roads and bridges, and not exceeding fifteen cents to pay jurors, on the one hundred dollars valuation, except for the payment of debts incurred prior to the adoption of the amendment September 25th, 1883; and for the erection of public buildings, streets, sewers, water works and other permanent improvements, not to exceed twenty-five cents on the one hundred dollars valuation, in any one year, and except as is in this Constitution otherwise provided; and the Legislature may also authorize an additional annual ad valorem tax to be levied and collected for the further maintenance of the public roads; provided, that a majority of the qualified property tax paying voters of the county, voting at an election to be held for that purpose, shall vote such tax, not to exceed fifteen cents on the one hundred dollars valuation of property subject to taxation in such county.” Const. Tex. § 9, art. 8.
“The county commissioners’ court * * * shall exercise such powers and jurisdiction over all county business, as is conferred by this Constitution and the laws of this state, or as may be hereafter prescribed.” Section 18, art. 5.

The Revised Statutes of 1911 provide:

“Said court shall have the power to levy and collect a tax for county purposes, not to exceed twenty-five cents on the one hundred dollars valuation, and a tax not to exceed fifteen cents on the one hundred dollars valuation to supplement the jury funds of the county, and not to exceed fifteen cents for roads and bridges on the one hundred dollars valuation, except for the payment of debts incurred prior to the adoption of the amendment to the Constitution, September 25, A. D. 1883; and for the erection of public buildings, streets, sewers, water works and other permanent improvements, not to exceed twenty-five cents on the one hundred dollars valuation in any one year, and except as in the Constitution otherwise provided; provided, however, the court may levy an additional tax for road purposes not to exceed fifteen cents on the one hundred dollars valuation of the property subject to taxation, under the limitations and in the manner provided for in article 8, section 9, of the Constitution, and in pursuance of the laws relating thereto.” Article 2242 (Acts 1907, p. 40).
“The commissioners’ courts of the several counties of this state shall have the power to levy, for county revenue purposes, a tax of one-fourth of one per cent, and, for roads and bridges, fifteen cents on the one hundred dollars valuation of all property subject to a state tax by the provisions of this title; and, for the payment of debts incurred prior to September, 1883, and for the erection of public buildings and other permanent improvements, they shall have power to levy a tax not to exceed twenty-five cents on the one hundred dollars valuation in any one year; and, for the improvement of public roads, a tax not to exceed fifteen cents on the one hundred dollars valuation under the restrictions provided in chapter seven of title ninety-seven.” Article 7357 (Acts 1885, p. 105; Acts 1891, p. 51).

R. S. 1911, tit. 97, contains no chapter 7, and relates, exclusively, to notaries public. The reference intended probably was to R. S. 1895, tit. 97, chapter 7 of which is on “road tax,” and, in article 4786, refers to “the provisions of the amendment of 1889 to the Constitution of the state of Texas, adopted in 1890,” which have been carried into section 9 of article 8, supra. See, also, Acts 1891, p. 51. iSo the “restrictions” referred to in article 7357 appear to be those concerning a county referendum election approval of the additional 15 cents per hundred tax for public roads.

The transfer of county money from one to another fund is thus provided for in R. S. 1911:

“Art. 1440. The commissioners’ court shall have power, by an order to that effect, to transfer the money in hand from one fund to another, as in its judgment is deemed necessary and proper, except that the funds which belong to class first' shall never be diverted from the payment of the claims to which the same are appropriated by article 1438, unless there is an excess of such funds.” R. S. 1879, art. 969.

The reference to article 1438 is developed by the two preceding articles, as follows:

“Art. 1433. Claims against a county shall be registered in three classes, as follows: (1) All jury scrip and scrip issued for feeding jurors. (2) All scrip issued under the provisions of the road law or for work done on roads and bridges. (3) All the general indebtedness of the county, including feeding and guarding prisoners, and paupers’ claims.” R. S. 1879, art. 962.
“Art. 1438. The funds received by the county treasurer shall be classed as follows: (1) All jury fees, all money received from the sale of estrays, and all occupation taxes; and this class of funds shall be appropriated to the payment of all claims registered in class first, described in article 1433. (2) All money received under any of the provisions of the road and bridge law, including the penalties recovered from l'ail-roads for failing to repair crossings, prescribed in article 6494, and £ll fines and forfeitures; and this fund shall be appropriated to the payment of all claims registered in class second. (3) All money received, not otherwise appropriated herein or by the commissioners’ court; and the funds of this class shall be appropriated to the payment of all claims registered in class third.” R. S. 1879, art. 967.

For two reasons neither the stated transfer of this $40,000 from the specific fund for which, ostensibly, it was levied and collected, nor the expenditure of the whole or any part of it in payment of warrants drawn against the fund to which it was transferred, can be sustained as being either authorized or permitted by law.

First. The provisions of article 1440, supra, which, alone, are relied upon as authorizing such attempted transfer, and, as a corollary, such expenditure of this $40,000, are not applicable under the facts.

(a) Originally, in the Revised Statutes of 1879, the purpose and legal effect of that statute were to authorize transfer of the purely statutory funds to the extent mentioned in article 967, now article 1438, supra, and it does not deal with the two classes of county funds which were designated in said section 9 of article 8 of the Constitution of 1876, which then was in force; and, similarly, the present legal effect of that statute should be limited to purely statutory funds, and should not be held to embrace any of the five classes of county funds specifically designated in that section of the Constitution in its present amended form, wherein a separate maximum tax rate for each such fund is prescribed. This construction of article 1440 at once attributes to it a salutary and efficient purpose, amply justifying both its enactment and its retention, and relieves it of conflict with said provisions of the Constitution. The applicable rule of statutory construction is plain and well settled.

(b) Moreover, in so far as the money so transferred in the case at bar is concerned the tax levy through which it was raised was not made in good faith, but, on the contrary, as we have seen, the rate of that levy was. fixed so high for the express purpose of providing revenue largely exceeding current demands upon the fund for “county purposes,” and solely in order that, according to long-continued practice in Jefferson county, such excess might be so transferred to the road and bridge fund and expended accordingly. Hence, even if article 1440 were to be held applicable, - ordinarily, to such constitutional as well as to purely statutory county funds, that statute should not be permitted to cloak and encourage the transfer and consequent expenditure, for one such purpose, of money raised by taxation ostensibly and avowedly for a distinctly different purpose, especially when, as in this instance, the design and practical effect of the transaction would be to increase the total expenditures for such latter purpose far beyond the amount of the proceeds of the tax actually levied therefor, and even beyond the amount which might have been raised by a levy at the maximum combined constitutional rate therefor, and probably far exceeding even the sum of that amount and any and all other amounts legitimately flowing into the fund for that purpose from purely statutory sources, such, for example, as penalties from railway companies for failure to repair crossings. Article 1438, § 2. See Ault v. Hill County, 102 Tex. 335, 116 S. W. 359; Id. (Civ. App.) 111 S. W. 425; Jefferson Iron Co. v. Hart, 18 Tex. Civ. App. 525, 45 S. W. 321; Petty v. McReynolds (Civ. App.) 157 S. W. 184.

Furthermore, the attempted transfer (was made upon a mere estimate that the fund from which the transfer was made then included an excess of $40,000, and at a time when it could not have been foreseen what legal and even urgent demands might come against that fund before the close of the year. See San Antonio v. Routledge, 46 Tex. Civ. App. 196, 102 S. W. 756.

Second. Going to the real gist of the main issue before us, section 9 of article 8 of our state Constitution, supra, inhibits any and all transfers of tax money from one to another of the several classes of funds therein authorized, and, as a sequence, the expenditure, for one purpose therein defined, of tax money raised ostensibly for another such purpose. The immediate purpose in so prescribing a separate maximum tax rate for each of the classes of purposes there enumerated is, no doubt, to limit, accordingly, the amount of taxes which may be raised from the people, by taxation, declaredly for those several purposes or classes of purposes, respectively. But that is not all. The ultimate and practical and obvious design and purpose and legal effect is to inhibit excessive expenditures for any such purpose or class of purposes. By necessary implication said provisions of section 9 of article 8 were designed, not merely to limit the tax rate for certain therein designated purposes, but to require that any and all money raised by taxation for any such purpose shall be applied, faithfully, to that particular purpose, as needed therefor, and not to any other purpose or use whatsoever. Those constitutional provisions control, not only the raising, but also the application, of all such funds; and such is the legal effect of articles 2242 and 7357, supra, when properly construed and applied.

True, the Constitution does not say, in so many words, that money raised by a county, city, or town, by taxation for one such purpose shall never be expended for any other purpose — not even for another of the five general classes of purposes defined and approved in said section 9 — but that, we think, is its plain and certain meaning and legal effect. The very definitions of those several classes of purposes, and the declaration of authority to tax the people therefor, respectively, coupled, as they are, in each instance, with a limitation of the tax rate for that class, must have been predicated upon the expectation and intent that, as a matter of common honesty and fair dealing, tax money taken from the people ostensibly for one such specified purpose shall be expended, as needed, for that purpose alone, as well as that the tax rate for that particular class, in any one year, shall not exceed the prescribed maximum.

Conversely, and upon a like course of reasoning, it must have been intended that expenditures for any such designated purpose shall never include tax money in excess of the proceeds of the maximum tax rate prescribed by the Constitution for that purpose.

Unless our above-stated conclusions are sound, there was no. good reason for making the constitutional limitations upon the said five separate designated tax rates specific; the limitation upon the taxing power might as well have been couched in general terms applicable to all the designated purposes collectively, although prescribing an aggregate maximum tax rate applicable to any and all such purposes in the discretion of the governing body. In other words, unless said constitutional provisions were designed to limit the application or expenditure of each such tax fund for the specific purpose or purposes for which, declaredly, it is raised, as well as to limit the tax rate therefor, the same result in the way of protecting the people against exorbitant taxes could have been attained more simply and more conveniently by making, in said section 9 of article 8, one general limitation upon the taxing power with reference to all five such classes of purposes, collectively, thereby leaving the governing body free' to apply any and all such funds according to its own judgment, provided only that no portion thereof shall be applied to any extraneous purpose, not included by the terms of that section.

Said conclusions find support in the history of the development of the quoted provisions of section 9, to which reference was made in the opinion of the Court of Civil Appeals by Chief Justice Conley, citing Harris’ Constitution, wherein it is said:

“Neither the Constitution of 1845, 1861, [1866] nor 1869 fixed a limit for the tax rate for state, county, or municipal purposes, but left it to the discretion of the Legislature.” Page 584.

The effect oil each seems to have been to leave the Legislature free to authorize the commissioners’ courts to deal with the subject as the lawmaking department might deem expedient. But, beginning in our Constitution of 1876, and running through the amendments of 1893, 1890, and 1907, the specific designation, in section 9 of article 8, supra, of general classes of purposes of county, city, or town taxation, with a limited rate in each instance, was both a departure from the original plan and a progressive growth. That change and that development, when considered together, disclose, we think, a settled determination upon the part of our people, not only to fix the maximum rates of taxation for the designated purposes, respectively, but, incidentally, to restrict to each such purpose the application and expenditure of all tax money levied, assessed, and collected declaredly for that purpose. Thus the whole matter has been placed beyond the power and authority of the commissioners’ court, and even of the Legislature itself, by the embodiment of those far-reaching requirements in our organic iaw.

Under a Constitution which designated certain specific funds for counties, cities, and towns, and fixes a different maximum tax rate for each such fund, why should the local governing body be permitted to expend for one such purpose money raised by taxation under an entirely different grant of power and for an essentially different constitutional purpose? That, it seems to us, would not conserve any sound public policy.

No implied power to transfer money from one to another such constitutional fund is derived from the fact that the original fund contains more than enough to meet the current demands against it. Such excess may be retained in that fund, and applied in succeeding years to the very purpose for which it was raised, thereby possibly reducing the future tax rate for that purpose.

Nor is the asserted power to transfer money from one to another such fund aided, even to the slightest extent, by the circumstance that any particular levy of taxes for the benefit of the specific fund which would be augmented by such transfer was made at a rate less than the maximum rate permitted by the Constitution, or even, as in the case at bar, at a rate less than that authorized at a referendum election. The power to tax, up to the authorized maximum, but separately, for each such purpose, is conferred, and exists, and may be exercised freely, without regard to the existence or nonexistence of the asserted power to transfer, under any circumstances, the proceeds of such taxation, or any portion thereof, from one to another such fund. But, on the other hand, said asserted power of transfer of tax money from one to another such fund, and the consequent expenditure thereof for a purpose essentially different from that for which, ostensibly, it was taken from the taxpayer, effectually is inhibited and nullified, in law, by reason of the fact that our Constitution itself — to say nothing of our statutes — specifically has designated and permitted the creation of each such separate fund, and for each expressly and specifically has prescribed a separate maximum tax rate. Utterly and radically at variance with those provisions is the whole conception of a transfer of money from one to another such fund, and its consequent application accordingly.

To hold otherwise — to say that money raised by taxation ostensibly for one such constitutional purpose may be expended for another such purpose, even though when added to the amount similarly raised for such other purpose the aggregate does not exceed the authorized maximum for that other purpose— would encourage excessive tax levies, in derogation of said section 9 of article 8 and in utter disregard of fundamental property rights of taxpayers. Such practice is viola-tive of public good faith in the exercise of the taxing power and surely cannot be within contemplation of our Constitution. Neither long-continued nor extended custom can justify such a departure from its requirements.

From what has been said, and ascribing to article 1440, supra, a meaning and legal effect in harmony rather than in conflict with our Constitution, it follows that said statute confers no legal authority whatever for the attempted transfer of said $40,000 or for the proposed expenditure of the residue thereof on roads and bridges. Wherefore the district court did not err in enjoining such expenditure.

Of persuasive, although not all of directly decisive, force in support of the views herein expressed, are the above-cited and also the following authorities: Lufkin v. Galveston, 63 Tex. 437; Dean v. Lufkin, 54 Tex. 271; Ft. Worth v. Davis, 57 Tex. 225; Bank v. Terrell, 78 Tex. 450, 14 S. W. 1003; Railway v. Dawson, 12 Neb. 255, 11 N. W. 307; State v. L’Engle, 40 Fla. 392, 24 South. 539; Louisville v. Button, 118 Ky. 732, 82 S. W. 293; State v. Commissioners, 21 Kan. 419; Vanover v. Davis, 27 Ga. 354; Morgan v. Railway Co., 6 Colo. 478; State v. Railway, 115 Ala. 250, 22 South. 589; Land Co. v. Birmingham, 89 Ala. 477, 7 South. 901; Desty, Taxation, p. 1059; Cooley, Taxation (3d Ed.) pp. 172, 173; Wolff Chem. Co. v. Philadelphia, 217 Pa. 215, 66 Atl. 344.

It is true that, as pointed out by defendants in error, section Y of article 8 of our Constitution does expressly inhibit the diversion by the Legislature of any special fund that may or ought to come into the state treasury, and there seems to be in our Constitution no express inhibition against the diversion or transfer of county, city, or town funds designated in that instrument; but we regard such express inhibition as not absolutely necessary to accomplish that purpose, the quoted phraseology of section 9 of article 8 having, by necessary implication, the same legal effect.

Defendants in error seek, upon the following grounds, to justify said transfer and the proposed expenditure of the $40,000:

(1) That the money was collected for general “county purposes,” which, they say, includes the construction and maintenance of roads and bridges.
(2) Their sixth assignment here is to the effect that the portion of said section 9 of article 8 which authorizes a tax “for the erection * * * of streets * * * and other permanent improvements” includes streets in an incorporated city or town, and the “statement” thereunder is to the effect that all proceeds of all outstanding road and bridge bonds of Jefferson county had been expended in building new and permanent shell roads, and that the rate of taxes actually levied for sinking fund and interest on such bonds aggregates only about 17 cents on the $100 valuation of property, and that neither the orders for issuing said bonds nor the order levying-the tax for interest and sinking fund therefor expressly charged such tax fate against any particular authorized tax rate or fund.

The contentions under said assignments appear to be, substantially, as follows:

(a) That, legally, there might have been levied, to be expended on roads and bridges and on “streets” of a “permanent” character, taxes aggregating 55 cents on the $100 valuation of property, comprising the 15 cents per hundred expressly and unconditionally authorized “for roads and bridges” and the 15 cents per hundred authorized, at said referendum election, “for the further maintenance of the public roads,” and the 25 cents per hundred for “streets * * * and other permanent improvements”; that “streets,” as that word is used, means throughout the county, whether lying outside or inside of cities and towns; wherefore (the argument seems to run), even if the provisions of said section 9' of article 8 should be held to restrict expenditures for the designated purposes, there might, nevertheless, be expended, legally, for roads and bridges, any amount not exceeding the aggregate amount which would have been realized from three contemporaneous levies on such 55 cents per hundred basis; and, consequently, inasmuch as the sum of all proceeds of all actual levies for 1914 for all such purposes, even when combined with said $49,000 so transferred, was less than would have been realized from such maximum authoaflzed levies on said 55 cents basis the amount so transferred was not excessive, and, inasmuch as permanent streets are roads, and construction and maintenance of roads are “county purposes,” it was proper to make the transfer from the general purpose county fund.

(b) That all proceeds of all outstanding road and bridge bonds oí the county had gone into the construction of new and permanent shell roads or streets, miles of whióh lie within cities and towns, the extent and cost of such portions thereof not being shown by any evidence; and that so much of the interest and sinking fund on such portion of such bonds as went to pay for such portions of such streets could be charged, legally, and ought to be considered as charged, against said authorized rate of 25 cents per hundred for permanent “streets,” rather than as against said authorized rate of 15 cents for maintenance of public roads; and that, even though the entire tax actually levied for sinking fund and interest on all of said bonds —about fifteen cents on the one hundred dollars valuation of property — were all charged against said authorized 25 cents rate, in 1914, a margin of about fifteen (ten?) cents which, if levied on the taxable property of the county, would have produced more than the $40,000 so transferred; wherefore (the argument seems to run), the expenditures for roads and bridges legally may be augmented to that extent, and that amount legally may be charged up against such marginal authorized rate for the permanent street, etc., fund, and, inasmuch as “streets” are roads, and construction and maintenance of roads are “county purposes,” said amount properly and legally may be transferred from the general fund to the road and bridge fund.

Said contentions are answered, generally, as follows, in connection with the foregoing:

Our Constitution, and our statutes also, draw a sharp distinction between the purpose of the fund from which and the purpose of the fund to which this attempted transfer was made, classifying them separately, and prescribing for each a separate and specific maximum tax rate. The classification, “for roads and bridges,” excludes those objects from the general class embraced by “for county purposes.” Lufkin v. Galveston; Dean Lufkin; Railway v. Dawson County; State v. L’Engle; State v. Railway, all supra.

Counsel for defendants in error apparently assume that, in addition to the proceeds of the tax actually levied declaredly and specifically for roads and bridges, the commissioners’ court legally might expend thereon a sum of money equal to the'difference between said proceeds and the amount which might have been derived from the levy of the prescribed maximum rate for roads and bridges, or even from all maximum rates for any and all road, bridge, and permanent street purposes; and that error probably rests, in turn, upon the fundamentally erroneous proposition, previously asserted by them, to the effect that the limitations prescribed by said section 9 of article 8 of our Constitution relate, solely, to the raising, and not to the expenditure, of proceeds of taxation for the several purposes therein designated. We regard it as clear that the fact that the levy actually made “for roads and bridges” (27.05 cents) was less than the aggregate of the prescribed maximum rates for “roads and bridges” and “for maintenance of public roads” and for permanent “streets,” etc. (55 cents), and even less than the maximum SO cents rate authorized by the Constitution and statutes and said referendum vote considered together, for use on roads and bridges, is wholly immaterial to any issue in the case at bar, and does not even tend to authorize or to justify either the attempted transfer or the proposed expenditure of said $40,000.

Ordinarily, and when no money in a particular fund has been brought over from some previous year, and although the constitutional restriction is leveled at the rate at which taxes for the designated class of purposes may be levied rather, than at the amount of the expenditure for such class of purposes, the maximum amount which may be expended for such class of purposes is to be determined, practically, by the amount actually and specifically raised therefor, in contradistinction to the amount which legally might have been levied and raised for that class of purposes. The power of the commissioners’ court to levy, for any such class of purposes, the maximum prescribed rate therefor and to expend therefor all amounts so derived, is, of course, clear and unquestionable; but, when the levy is made at less than such maximum rate, the difference, or deficit, cannot be made up by transfer from another such constitutional fund.

Moreover, in this instance the attempted transfer of money was not from a fund raised for “streets * * * and other permanent improvements,” but was from the general fund for “county purposes,” which is an entirely distinct and different fund, and which, as we have attempted to show, cannot be applied, lawfully, on roads and bridges.

Taxes levied ostensibly for any specific purpose or class of purposes designated in section 9 of article 8, supra, must be applied thereunto, in good faith; and in no event and under no circumstances may there be expended, legally, for one such purpose or class of purposes, tax money in excess of the amount raised by taxation declaredly for that particular purpose or class of purposes. But this rule would not prevent the proper expenditure, for such purpose or purposes, of any unex-pended balance in the corresponding fund brought over from any previous year or years.

Defendants in error complain, further, because numerous holders of outstanding warrants drawn against the road and bridge fund were not made parties; but they were neither necessary nor proper parties to the action for injunction.

The judgment of the Court of Civil Appeals is in part affirmed and in part reversed, in accordance with our views as hereinabove set forth, and the judgment of the district court is affirmed.
      ^SmFor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAVIDSON, P. J.

text:
    YOUNG v. STATE.
    (No. 4962.)
    (Court of Criminal Appeals of Texas.
    March 27, 1918.)
    Criminal Law <&wkey;1090(16) — Appeal — Review-Record.
    Where the questions raised for revision in the motion for new trial are not verified by bills of exceptions and no statement of facts is contained in the record, the matters as presented are not reviewable, and the judgment must be affirmed.
    Appeal from District Court, Smith County; J. R. Warren, Judge.

      Elijah Young was convicted of murder, and appeals.
    Affirmed.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of murder, his punishment being assessed at 40 years’ confinement in the penitentiary.

There are several questions raised for revision in thei motion for new trial, but they are not verified by bills of exception, and the statement of facts is not in the record. These matters, as presented, are not reviewable, and the judgment will be affirmed.

PRENDERGAST, J., not sitting.
      <§n»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes