author: HARPER, J. DAYIDSON, J. HARPER, J.

text:
    Ex parte WHITE.
    (No. 3761.)
    (Court of Criminal Appeals of Texas.
    Nov. 17, 1915.
    On Motion to Retax Costs, March 8, 1916.)
    1. Statutes <@=107 (1) — Subjects and Titles.
    If a law has but one general object or subject fairly indicated by its title, deals only with matters related directly or indirectly to the main subject or object, which have a mutual connection, and are necessary to the accomplishment of the act, it does not deal with two subjects.
    2. Constitutional Law <@=>81 — “Police Power.”
    The “police power” of the state is the power to enact laws for the promotion of the public health, safety, morals, peace, order, and welfare, and is nothing more or less than the power of government inherent in every sovereignty to the extent of it® dominions.
    [Ed. Note. — For other definitions, see Words and Phrases, First and Second Series, Police Power,]
    3. Constitutional Law <@=>251 — Due Process-Police Power.
    If legislation enacted in the assumed exercise of the police power is not a legitimate exercise thereof, it is prohibited by Const. U. S. Amend. 14, guaranteeing due process of law.
    4. Constitutional Law <@=81 — Police Power.
    If a legislative enactment is reasonably adapted to the attainment of promoting public health, safety, morals, peace, or welfare, it is within the legitimate scope of the police power, and does not infringe any provision of the Constitution of the United States.
    5. Warehousemen <@=>2 — Police Power — Ginning Cotton — City Crop.
    Conditions in the cotton trade as to negligent weighing, loss in transit, deterioration, and “city crop,” consisting of taking samples from the bales, warranted enactment of Acts 33d Leg. (2d Called Sess.) e. 5, regulating the ginning and storing of cotton, and such act is within the legitimate exercise of the police power.
    6. Warehousemen <@=>2 — Police Power-Ginning Cotton.
    The mere fact that conditions requiring remedy in the cotton trade were not caused by cotton ginners did not make unwarranted such enactment.
    7. Constitutional Law <@=296(1) — Ware-housemen <@=2 — Police Power — Ginning Cotton.
    Such act is not obnoxious to Const. U. S. Amend. 14, or any other provision thereof, and is valid.
    8. Statutes <@=>107 (2) — Subjects and Titles op Acts — Separate Subjects.
    Such act regulating storage and ginning of cotton is not invalid as embracing two unrelated subjects; its purpose being to promote the cotton industry, in doing which both ginning and storage must be regulated.
    9. Statutes <@=114(1) — Subjects and Titles op Acts — Variance.
    Such act is not invalid merely because the title purports regulation of “all gins” and the body of the act refers only to public gins, since as a matter of fact all gins within the state are public.
    10. Constitutional Haw <§=»296(1) — Due Process of Law — Cotton Ginning.
    Such act, requiring cotton ginners to abstract and preserve three samples from each bale, and imposing an expense of not to exceed Í5 cents per bale in the ginning of cotton, does not deprive the cotton ginners of due process 'of law, since it does not require them to paiy the added expense.
    11. Constitutional Law <⅜=296 (1) — Due Process of Law.
    Such act does not deprive the producers of due process of law, since it is calculated to increase their final return approximately ?5 per bale, and the maximum increase in cost will not exceed 15 cents per bale under the law.
    12. Warehousemen <g=»2 — Statutes — Ginning Cotton — Penal Statutes.
    Such act, providing a penalty against a gin-ner violating it is not invalid for failing to provide penalty for its violation by the producer, substituting a different sample, since he is liable under the swindling statute if he does so.
    13. Constitutional Law <©=>70 (3) — Judicial Power — Wisdom of Statutes.
    With the wisdom of the law the courts have nothing to do, but that is for the Legislature.
    Davidson, J., dissenting.
    On Motion to Retax Costs.
    14. Habeas Corpus <©=5116 — Costs.
    Under Code Or. Proc. 1911, art. 210, as to taxing costs in habeas corpus, the court will not tax costs against the sheriff, who merely arrested relator on a warrant issued by the proper authorities.
    15. Habeas Corpus <©=>116 — Costs.
    Relator should not be taxed with costs of a stenographer, employed by the adverse parties, when other stenographers were employed by the court.
    16. Habeas Corpus <©=>116 — Costs.
    Where relator in habeas corpus acted from the belief that the law under which he was confined was unconstitutional, he should not be taxed with the clerk’s fees and the Attorney General’s fees.
    17. Habeas Corpus <©=>116 — Costs.
    The relator in habeas corpus is properly, taxed with the costs of witnesses and sheriffs, made after the writ was sued out.
    Application of Dabney White for a writ of habeas corpus. Writ denied.
    Relator remanded.
    H. M. Wade, of Rockwall, N. B. Morris, of Palestine, and N. A. Stedman, of Austin, for appellant B. F. Looney, Atty. Gen., 0. F. Greenwood, of Dallas, Alexander, Baldwin & Ridgway, of Et. Worth, A. U. Fuckitt, of Dallas, O. M. Cureton, Asst. Atty. Gen., and G. O. McDonald, Asst. Atty. Gen., for the State.
   HARPER, J.

Relator was arrested, the complaint charging:

That he was “a licensed and bonded ginner, conducting and operating a public gin in Smith county, Tex., and did then and there, as such licensed and bonded ginner, gin a bale of cotton for one J. C. Burt, and did then and there knowingly and willfully fail to take three true and correct samples of said bale of cotton so ginned, as required by law, and did then and there knowingly and willfully fail to preserve such samples of said bale' of cotton so ginned by him, as required by law.”

Immediately upon being arrested relator made application to this court for a writ of habeas corpus, and, as it was apparent that the only question involved was the constitutionality of chapter 5, Acts 33d Leg., 2d Called Sess., the writ was granted, and the cause set down for a hearing. At the hearing a great deal of testimony was adduced, able oral arguments made, and exhaustive briefs filed both by attorneys for the relator and attorneys for the state. We have read these briefs with pleasure and profit, and they have been of material aid to us in passing on the questions involved. Of course, no provisions of the law are involved in this case except those provisions regulating gins and the ginning of cotton, and we shall narrow the discussion down to those provisions, except in the particular that is claimed the law deals with two subjects, and is therefore violative of the provisions of section 35 of article 3 of the Constitution, which provides thp.t:

“No bill * * * shall contain more than one subject, which shall be expressed in the title.”

If this contention should be sustained, of course the whole act would be invalid, but if the law has but one general object or subject, which is fairly indicated by its title, and the statute or act in question deals only with matters related directly or indirectly to the main subject, or object to be accomplisbed, and the matters dealt with by the terms of the act have a mutual connection, are not foreign to the subject dealt with, and are necessary to the accomplishment of the purpose of the act, the act would not be dealing with two* subjects, and in such an event only the question of the validity of the provisions relating to gins and ginners would come under review in this case.

The first contention of relator is that the title and the body of the act contain two subjects, not germane to, but independent of, each other, namely, the creation of a bonded warehouse system, and the establishment of a system for the regulation of gins and gin-ners, and that the title of the act refers to “all gins,” while the body of the act refers to only “public gins,” and therefore the subject expressed in the title is not the same as that expressed in the body of the act.

The second and fourth contentions are that the act is violative of the provisions of the Fourteenth Amendment of the Constitution of the United States which provides that no state shall deprive any person of life, liberty, or property without due process of law, and is violative of section 17, art. 1, of the Constitution of this state, which provides that “no person’s property shall he taken, damaged or destroyed for, or applied to, public use without adequate compensation being made, unless by the consent of such person,” and third, that the act in question, in so far as it relates ⅛> gins and ginners, is vio-lative of section 1 of the Fourteenth Amendment to the Constitution of the United States, which provides that “no state shall ⅜ * * deny to any person within its jurisdiction the equal protection of the laws.”

These four are the propositions stated and relied on by relator, although in presenting them a rather wide range is taken in the argument. Relator, in his brief, lays down some general rules that we can and do indorse, namely:

“The law under consideration can be defended, if defensible at all, upon the theory that it was enacted in the exercise of the police power of the state for the common good or general welfare. Without attempting an accurate definition of the police power, we are well within the legal conception of the term when we speak of it as the power of the state to enact laws for the promotion of the public health, the public safety, the public morals, the public peace or order, and the public welfare. Whether legislation is justified by reference to the preservation or promotion of the public health, safety, morals, or peace is usually not difficult of determination, but whether it is justified by the preservation or promotion of the public welfare is necessarily, by reason of the generality of that expression, a question, in many situations, of more or less perplexity. * * *
While the police power may be exerted for various purposes, among them being the promotion of the public welfare, the foundation of the doctrine is deeper, since, a© expressed in the License Cases, 5 How. 504, 12 L. Ed. 256, ‘they are nothing more nor less than the powers of government inherent in every sovereignty to the extent of its dominions.’ We refer to this view of the basis of the police power in order to correct a misapprehension, which ha© been responsible for a radically erroneous conception of the extent of the power. The language above quoted from the License Oases is quoted by the court in Lake S. & M. S. Ry. Co. v. Smith, 173 U. S. 684, 19 Sup. Ct. 565, 43 L. Ed. 858, but the court was careful to add the following: ‘This power must, however, be exercised in subordination to the provisions of the federal Constitution. If, in the assumed exercise of its police power, the Legislature of a state directly and plainly violates a provision of the Constitution of the United States, such legislation would be void.’ To the same effect is N. O. Gas Light Co. v. Louisiana Light Co., 115 U. S. 650, 6 Sup. Ct. 252, 29 L. Ed. 516, where the court said: ‘Definitions of the police power, ⅜ * ⅜ however, must be taken subject to the condition that the state cannot, in its exercise, for any purpose whatever, encroach upon the powers of the general government, or rights granted or secured by the supreme law of the land.’ It is only the legitimate exercise of the police power that is not abridged by the Fourteenth Amendment, as is indicated by the following taken from the case of Powell v. Pennsylvania, 127 U. S. 678, 8 Sup. Ct. 992, 1257, 32 L. Ed. 253: ‘It is scarcely necessary to say that if this statute' is a legitimate exercise of the police power of the state for the protection of the health of the people, and for the prevention of fraud, it is not inconsistent with that amendment.’ The necessary implication from this proposition is that, if the legislation does not come within the legitimate exercise of the police power, it must be rejected as violative of the Fourteenth Amendment. In other words, if legislative action is not the legitimate exercise of the police power, the Fourteenth Amendment interposes a fatal ob- ; jection, since otherwise the very safeguards intended to be provided by the amendment would be destroyed. Differently stated, if, when the Legislature transcends the limits of the lawful exertion of the police power, the guaranties of the Fourteenth Amendment will not avail for protection, the Constitution of the United States peases to be the supreme law of the land, and its guaranties are meaningless and impotent.
“Still, notwithstanding the clearly settled law, that the police power must be exercised in subordination to the provisions of the federal Constitution, we find now and then the statement in a decision that the provisions of the federal Constitution impose no restraint upon the police power of the state. This expression of the law, due to a misconception of the scope of what is called the sovereignty of the state, without explanation, is seriously misleading. If a legislative enactment is reasonably adapted to the attainment of any one of the ends of promoting the public health, safety, morals, or peace, or the public welfare, it comes within the legitimate scope of the police power, and in that condition, it does not infringe any provision of the federal Constitution. But if the element of reasonable adaptation to the accomplishment of one of these purposes is lacking, it is not the lawful exercise of the police power, and therefore runs counter to the Constitution and must fail. The doctrine on this subject is well expressed in McGehee on Due Process of Law, on page 306, as follows: ‘A general limitation on the exercise of the police power is found in the idea of reasonableness; that is, to be valid a statute must be reasonable and enacted in good faith; for every merely capricious and arbitrary fiat of the Legislature is out of place in “a government of laws and not of men,” and is irreconcilable with the conception of due process of law.’ The same author on the next page makes this declaration: ‘The police power cannot be interposed to support statutes which have no possible tendency to protect the community or promote the public welfare, but which, having no substantial relation to the public welfare, arbitrarily deprive the owner of liberty or property.’ The cases sustaining these views are numerous, and out of the number we select a few extracts.
“Thus in Mugler v. Kansas City, 123 U. S. 623, 8 Sup. Ct. 273, 31 L. Ed. 205, it is said: ‘It does not at all follow that every statute enacted ostensibly for the promotion of these ends is to be accepted as a legitimate exertion of the police powers of the state. There are, of necessity, limits beyond which legislation cannot rightfully go. While every possible presumption is to be indulged in favor of the validity of the statute (Sinking Fund Cases, 99 U. S. 700, 718 [25 L. Ed. 504]), the courts must obey the Constitution rather than the lawmaking department of government, and must, upon their own responsibility, determine whether, in any particular case, these limits have been passed. “To what purpose,” it was said in Marbury v. Madison (5 U. S.) 1 Cranch, 137, 176 [2 L. Ed. 60], “are powers limited, and to what purpose is that limitation committed to Writing, if these limits may, at any time, be passed by those intended to be restrained? The distinction between a government with limited and unlimited powers is abolished, if those limits do not confine the persons on whom they are imposed, and if acts prohibited and acts allowed are of equal obligation.” The courts are not bound by mere forms, nor are they to be misled by mere pretenses. They are at liberty — indeed, are under a solemn duty — to look at the substance of things, whenever they enter upon the inquiry whether the Legislature has transcended the limits of its authority. If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety has no real or substantial relation to those objects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge, and thereby give effect to the Constitution.’ And in Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169, we find: ‘It may be admitted that every intendment is to be made in favor of the lawfulness of the exercise of municipal power, making regulations to promote the public health and safety, and that it is not the province of courts, except in clear eases, to interfere with the exercise of the power reposed by law in municipal corporations for the protection of local rights and the health and welfare of the people in the community. But, notwithstanding this general rule of the law, it is now thoroughly well settled by decisions of this court that municipal by-laws and ordinances, and even legislative enactments undertaking to regulate useful business enterprises, are subject to investigation in the courts with a view to determining whether the law or ordinance is a lawful exercise of the police power, or whether, under the guise of enforcing police regulations, there has been an unwarranted and arbitrary interference with the constitutional rights to carry on a lawful business, to make contracts, or to use and enjoy property. In Lawton v. Steele, 152 U. S. 133-137 [14 Sup. Ct. 499, 38 L. Ed. 385], Mr. Justice Brown, speaking for the court, said upon this subject: ‘To justify the state in thus interposing its authority in behalf of the public, it must appear: First, that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals. The Legislature may not, under the guise of protecting the public interests, arbitrarily interfere with private business or impose unusual and unnecessary restrictions upon lawful occupations. In other words, its determination as to what is a proper exercise of its police powers is not final of conclusive, but is subject to the supervision of the courts'.’ ”

We have copied the above excerpt from relator’s brief as expressing the law applicable to the police power of the state, and to demonstrate that relator recognizes that, if the law was rendered necessary for the promotion and preservation of the public welfare, and its provisions are reasonable and calculated to correct the evils intended to be corrected, such law would violate no provision of the federal Constitution. For, as said by the Supreme Court of the United States i» Re Rahrer, 140 U. S. 554, 11 Sup. Ct. 865, 35 L. Ed. 572, speaking through Chief Justice Fuller:

“The power of the state' to impose restraints and burdens upon persons and property in con.servation and promotion of the public health, good order, and prosperity is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States, and essentially exclusive. And this court has uniformly recognized state legislation, legitimately for police purposes, as not, in the sense of the Constitution, necessarily infringing upon any right which has been confided expressly or by implication to the national government.”

Has experience demonstrated that .there ate evils connected with the preparation of cotton for market, and the marketing of same which affect the state as a whole— the general public welfare? If so, then under the authorities quoted by relator the state, in seeking under the police power to correct and remedy those evils, wou]$ not and cannot be held to violate any provision of the federal Constitution. Cotton is not only the chief product of this state, but of the entire South, and not only “within the memory of man,” but at the very time of the enactment of this law, all the industries of this state and of the South were paralyzed by conditions affecting the cotton crop. The farmer, the merchant, the bank, the lawyer, the doctor, in fact the entire citizenship of this state, was brought almost to the door of the bankrupt court by conditions affecting the marketing of cotton, and the conditions were such that not only authorized, but imperatively demanded, that the Legislature enact laws remedying or tending to remedy those conditions, if within the power of legislation to do so. No one can gainsay that a condition existed in which the public welfare was vitally interested and the whole public affected, and relief from such conditions provided, if it was possible to do so. And the instance of the conditions of the year 1914, while impressing the necessity for legislation to avoid and prevent such conditions from again arising, is not the only instance in which the conditions affecting the cotton crop has about paralyzed the entire industries of the state and South. All of us can remember that hut a few years ago cotton was selling at from four to six cents per pound (much less than the cost of production), and that many failures in business were occasioned thereby, and almost starvation brought to the doors of many; in fact, every legitimate interest and business in' our state were 'affected thereby. It has been demonstrated, and we think fully shown by the evidence in this case, that such conditions were not the result of the law of supply and demand, but were brought about by conditions which can, in a measure at least, be remedied by suitable legislation, and this is the object and purpose of the legislation involved in this case. It may not accomplish all that can be accomplished; it may be defective in many particulars; hut this does not affect the' power of the state to enact legislation of this character if the public welfare demands legislation to remedy the conditions which, at various and sundry periods of our history, brought about the injury of the citizenship of the state as a whole, and which certainly affected not only the welfare of the farmers, the producers of cotton, but as well seriously affected the welfare of every citizen of the state engaged in any legitimate calling, trade, or profession. But it may be contended that these conditions were conditions in no way brought about or contributed to by the gin-ners in ginning the cotton; yet, even if that were true, if it became imperatively necessary to regulate the ginning of the cotton by suitable legislation, to remedy the evils which had brought about such conditions, this would authorize the Legislature to regulate tlie ginning to accomplish the purpose sought, if it was necessary to do so. The evidence adduced on this trial, we think, demonstrates there are evils connected with the ginning of cotton that imperatively demanded regulation, else no legislation could be adopted which would enable the Legislature to adopt a system which would relieve or tend to relieve those oft-recurring periods in which the welfare of the entire citizenship is seriously affected. It was shown by the evidence that it has grown to be the custom with virtually all ginners to “plate” each bale of cotton ginned, with a portion of the cotton of the previous bale ginned. Ool. Sheb Williams in his testimony aptly illustrates how this is done by the ginners in order that they may gin more cotton each day. There is what is termed a “roll” that must be filled before the gin can be run at its regular speed. He testified:

“You must first fill your roil before you can properly gin cotton. If I should bring a bale of cotton to the gin and the roll was filled from that bale, a good hale, just when the box and feeders were clear, this would be shut off, and in order to keep the roll tight with the lint that may be taken from the seed, now the bale of cotton succeeding me of necessity would get the lint from the seed that this roll ginned, and that would go into the succeeding bale. If the succeeding bale were a better one than this roll, that side of the cotton would, of course, be worse than the sample and better than the cotton actually was; in other words, it would be plated.”

This is shown to be the general custom of the ginners of this state; and then by the testimony of Mr. D. O. Reed, a cotton buyer, called as a witness by relator, it is shown that the buyers, under conditions heretofore existing, took a sample from each side of the bale of cotton, and bought by the sample that graded the lowest. This is but human, and we censure no one for doing so. So, if the plate was of a superior grade, the farmer would not get the benefit by reason' thereof, but, if the plate was of an inferior grade, then the farmer sold his cotton by the inferior grade, and consequently lost thereby. So it may be said, through no fault of the raiser of the produce, he sells at least a portion of his crop by an inferior sample, occasioned by the fact that the ginner does not clean his roll and put all of a man’s own cotton in his bale, in lieu thereof placing a portion of the preceding man’s cotton in each bale, and at the place where the sample is taken from the bale under former conditions. This should be remedied, and this the law seeks to do by prohibiting the “plating” of cotton, and providing for the taking of samples as the bale is ginned.

Again, the evidence before us shows that there are at least a few ginners — they being the exception, and not the rule, we will say in justice to the ginners — while ginning cotton who so arrange a steam cock or valve that steam would escape and spray the cotton while being ginned, thus adding to its weight. This was done to bring customers to their gin, giving an extra large “turnout.” This was an evil that needed correcting, and this the law attempts to remedy. This and other matters incident to the way the cotton was ginned and baled had caused what is termed an “overhead charge” to be made by the spinners against each bale of cotton, amounting to 30 pounds on each bale of cotton of 500 pounds. It is known, and the evidence before us shows, that the bagging and ties on each bale of cotton weighs from 12 to 22 pounds, that the average weight of bagging and ties would probably be from 18 to 20 pounds per bale, and yet the “tare” or “overhead charge” has been fixed at 30 pounds, thus penalizing every bale of cotton from 10 to 12 pounds, amounting, at the present price of cotton, at from $1.10 to $1.30 per bale which the producer loses by reason of this “overhead” or “tare” charge. This was occasioned in the main by reason of loss from spraying the cotton, mixed-packed, sand-packed, and water-packed cotton, all of which can be, and under this law should be, and if properly enforced will be, prevented by the ginner in ginning the cotton. Under the system heretofore existing, as shown by the testimony of Mr. Reed, the buyers who ship the cotton to the spinners know there is an overcharge on every properly ginned bale of cotton of at least 10 to 12 pounds that should not be made; consequently when the buyer is having the cotton compressed for shipment he has what is termed “patches” put on the cotton, additional bagging, old sacks, or something of similar character, to the extent of 10 or 12 pounds, and then bills his cotton out as weighing this much in addition to the weight on which he purchased it. If he purchased a bale by weight of 500 pounds, when he ships and the “patches” have been put on, he bills it as weighing 510 or 512 pounds, and for this reason the “tare” or “overhead” charge will not be reduced by the spinners under former conditions. Mr. Reed frankly testified that he could buy cotton at 11 cents a pound and sell it to the spinner at the same price, 11 cents a pound, and make from $1 to $1.25 a bale, by reason of these' “patches” being placed thereon, and by reason of the further fact that, if the cotton as billed to the spinners comes to within 1 per cent, of the billing, there is no reduction, thus giving another margin of five pounds-that can be added to the weight in shipping over and above the weight as purchased.. This makes it apparent that, while a bale of cotton weighing 500 pounds is sold on the-market here as weighing only 470 pounds— that is, the price is fixed so that is the number of pounds paid for — yet in selling the-cotton to the spinner it is sold as weighing; 485 pounds; half the tare, or 15 pounds, be--ing taken advantage of by the purchaser who-sells to the spinner. We are censuring no-one, but this evidences a condition that needs-remedying, and this the Legislature has sought to remedy by this bill. In addition to this, the evidence before us shows that by cutting the bales and taking out samples, by what is termed “picking the cotton” at tbe cotton yards and compresses, there is annually what is termed a “town or city crop” of 100,000 bales. And this is marketed and sold by men who did not raise a pound, nor even a single lock, of cotton. All this is taken into consideration in fixing the “tare” or “overhead” charge as against each bale of cotton. If a bale is completely covered by the bagging or wrapping placed on cotton, and it is not necessary to cut the bagging to obtain a sample, all this 100,000 bale town or city crop will disappear, and the “overhead” charge or “tare” can be reduced proportionately. This is one of the reasons shown why the “sample” should be taken while the cotton is being ginned, instead of the bagging being cut on each side and samples taken after being baled. Again it is shown by the evidence before us that the place where the bagging is cut and samples pulled out of each side will form a cup, so when it rains these cups will fill with water and form what is called by cotton men “a cancer,” which continually eats its way into, and some instances entirely through, the cotton, rendering a number of pounds of cotton valueless, and this is taken into consideration in fixing the “overhead charge,” all of which is a loss to the producer; for it is taken into consideration in fixing the price.

But it was insisted on behalf of the relator that cotton after being pressed gives a better “sample” than when taken as the cotton is ginned. There is but one instance in the evidence before us, and that shows the sample when taken as being ginned and one taken out of the same bale after being baled were exactly the same, there being no difference. But by some of the testimony it was shown that cotton after being baled took on what was termed a “bloom” that it did not have while being ginned. This adds nothing to the length or strength of the fiber, nor to the cotton in any way, according to the testimony, but if it did cause the cotton sample to grade better, the testimony before us would show that, when the sample is taken as ginned and placed in a sealed réceptacle, the same “bloom” comes upon the sample, and if it added anything to the grade of the cotton, it would be upon both samples, when taken when being ginned, or when taken after being baled There was testimony that the buyer could not rely upon the sample when taken as ginned and placed in a sealed receptacle, for it was said the first purchaser who bid on it when it was opened might get a correct view of the sample, yet in carrying it to different cotton buyers, and handled by them, the dirt and trash might be shaken out. If so, the buyer would be at no greater disadvantage than formerly; for, if the bagging was cut and a sample taken from the side, the first buyer who bid on it would see the sample just as taken from the bale, but when the producer carried the sample thus taken to the different buyers the dirt and trash would be shaken out in the one instance as well as in the other, and we all know it is not customary for each buyer who bids on cotton to take a sample out of the bale; for if they did the bale would soon become almost all “samples.” Wte have mentioned these matters to show why we think the evidence in this case demonstrates that the general public in this state is so affected by the heretofore existing system of the preparation of cotton for the market and the system of marketing the same as to authorize legislation under the police power of the state to correct the evils, and to show that there were evils connected with the ginning of cotton which, under this power and authority, authorize the Legislature to enact a law to remedy the evils that have grown up and become a part of the system of ginning cotton heretofore carried on in this state. To our mind there is and can be no question that the public welfare demands the eradication of these evils, that legal fraud may be prevented, that unnecessary overhead charges may be eliminated, and the stapile crop of the state, upon which the prosperity of each and every citizen of the state in a measure more or less depends, may not be thus penalized and sacrificed by being forced on the market in a few months’ time. To remedy these conditions the law was passed, and the state had the authority to pass it under its police power, inherent in sovereignty, and which was not ceded to the federal government, and the law in none of its provisions is obnoxious to the Fourteenth Amendment or any other provision of the federal Constitution.

But does the law embrace two subjects in its provisions? Does it deal with two wholly unrelated subjects? If 'so, of course, it is invalid, even though it is obnoxious to no provision of the federal Constitution. That the caption is broad and comprehensive enough to embrace all the provisions of the act is conceded, but it is insisted that by the caption itself, as well as the body of the act, it is manifest that the law deals with two wholly unrelated subjects — the ginning of cotton and the warehousing of cotton. It does deal with both, and this is placed beyond question both by the title and the body of the act. But does the ginning of cotton and warehousing of cotton, either or both, express the subject or object of the legislation in question? We think, taking into consideration the conditions known to exist at the time of the passage of the act, 'the caption and the whole body of the act, the ginning of cotton and the warehousing of cotton are but incidents to the main purpose sought to be accomplished by the law. The “subject” of the law, the object and purpose of the law, was to so gin and prepare the cotton for market, to protect, the cotton until marketed,- that it could be marketed without the loss heretofore incident and growing out of the system heretofore existing in ginning and in keeping or holding cotton until it was finally marketed. The Legislature had in mind the enormous loss entailed upon the chief product of the state annually and which affected every individual in the state either directly or indirectly, as herein-before shown: First, by the product being forced on the market within three or four months, and, to prevent this, to provide a system or means by which the necessity for this might and could be removed; second, the loss incident to this product if held, by being exposed to the weather, and to provide a means to remedy and remove this evil that it might be held without loss or injury; and, third, to enable the farmer to hold it, and not be forced to sell it as soon as gathered.

After having provided a means for it to be kept without damage, there were evils connected with the ginning of cotton that must be remedied. To enable the Legislature to accomplish the “subject” or purpose of the law, which was simply to prevent the sacrifice of our annual cotton crop, and is a subject of which each and every citizen of the state is either directly-or indirectly interested, it was necessary to regulate the ginning to prevent fraud and fraudulent practices. The purpose of the law is a “big subject,” but each and every provision of the act is necessarily incident to and connected with the accomplishment of the object and purpose of the law. We know that there are many families in this state, men who raise cotton on the half plan, or pay one-fourth of the crop for the rent of the land that were and would be necessarily compelled to sell their cotton as gathered if some system of legislation was not passed under and by virtue of which they would not be compelled to do so. Mankind generally is aware of the fact that this could not be accomplished unless some system was adopted whereby it would be properly ginned and housed while being held until marketed. This system or act was adopted to accomplish the purpose of preventing the entire cotton crop being forced on the market in the few months while being har* vested, and sold at a loss. Conditions arose at times that forced a sacrifice of this crop if it was forced on the market in these few months. Every citizen and every industry in the state was and is so entwined in the proper marketing of this crop, and preventing its sacrifice, as to make it a matter that affects the general welfare of the whole state, and each and every citizen thereof. By the system of ginning, weighing, sampling, and housing of the cotton provided for under the provisions of this law, a way and means is provided where the cotton crop need not be forced on the market at a sacrifice in times when war renders it impracticable to sell it, or when financial stringency renders it practically impossible to obtain the means to finance it, or any other condition arises which renders it impracticable or impossible to sell it without sacrifice as fast as it is harvested. The main subject and principal object of this law is to prevent the losses annually occurring in the marketing of this crop, and the proper ginning and warehousing of cotton is not only incident, but absolutely necessary, to the accomplishment of the purpose of the law, and but for which the general welfare of the public might not perhaps be so entwined in the “subject” of the law as to call into and demand the application of the police power to the subject legislated upon. Our Supreme Court has declared, in passing on section 35 of article 3, that:

“Only the general or ultimate object is required to be placed in the title; and not the details by which the object is to be attained. Any provision calculated to carry the declared object into effect is admissible.” Johnson v. Martin, 75 Tex. 40, 12 S. W. 321; Doeppenschmidt v. Railway, 100 Tex. 535, 101 S. W. 1080; Snyder v. Compton, 87 Tex. 378, 28 S. W. 1061; T. & P. Ry. Co. v. Stoker, 102 Tex. 61, 113 S. W. 3; Newnom v. Williamson, 46 Tex. Civ. App. 615, 103 S. W. 656.

And this court has announced the same rule in Ex parte Abrams, 56 Tex. Cr. R. 467, 120 S. W. 883, 18 Ann. Cas. 45. In Breen v. State, 44 Tex. 305, our Supreme Court held:

“It is a sufficient compliance with this provision of the Constitution if the law has one general object which is fairly indicated by its title, though it may embrace different subjects which are connected with or appropriate for the accomplishment of this general object or purpose.”

In Snyder v. Compton, 87 Tex. 377, 28 S. W. 1061, the court says:

“Any provision calculated to carry the declared object into effect is unobjectionable.”

And where all the provisions of an act are subsidiary to and legitimately connected with and tend to effect and enforce its main object, the law is not subject to the objection that two subjects are embraced in the title. Orrick v. City of Ft. Worth, 52 Tex. Civ. App. 309, 114 S. W. 677; Railway v. State, 109 S. W. 867; Ex parte Heman. 45 Tex. Cr. R. 343, 77 S. W. 225; Snyder v. Compton, 87 Tex. 377, 28 S. W. 1061. In McMeans v. Finley, 88 Tex. 521, 32 S. W. 524, the Supreme Court holds:

“This provision, prohibiting more than one subject, does not apply where two matters are incorporated in the act which are germane to each other and parts of the same general matter.”

Many other decisions holding that an act of the character under discussion is not viola-tive of section 35 of article 3 of our state Constitution will be found; collated under this section' in Harris’ Ann. Const, pp. 253 to 273.

But it is insisted that, as the title of the act refers to “all gins,” and the body of the act refers only to “public gins,” the title is broader and more comprehensive than the body of the act. AYe carefully listened to every word of the testimony that fell from the lips of the witnesses, and have re-read the testimony while considering this case, and under this testimony there are no gins in Texas that do not properly come within the definition of “public gins” as defined in the act. The only testimony that would even suggest the thought that there might be gins in Texas not coming within the definition of “public gins” in the act was the testimony of relator and Senator Astin on his point. Mr. White testified that he thought perhaps that one-fourth of our cotton crop was ginned by men who had raised the cotton or purchased by them before it was ginned. Bufi when asked if he could name one ginner who ginned cotton for himself alone, or who did not gin for the public, he could not name such gin. So, if one-fourth of the cotton ginned was owned by the men who ginned it, the evidence would show they, while ginning their own, also ginned for others, and would come within the provisions of the law. Senator Astin testified that there were gins in the Brazos bottom which sought no customers except the cotton raised by the planter himself, and not raised by tenants on the farm of the owner of the gin. But if, as testified to by him, the ginner, in addition to ginning the cotton raised by himself, also ginned the cotton of his tenants, he would be brought within the definition of a “public ginner,” as defined in the act. So, whether we refer to the title or the body of the act, it applies to all men who engage in the business of ginning cotton in this state, and there is no discrimination between two different classes of men following the same occupation in this state. All ginners who have heretofore ginned cotton, preparing it! for the market, in this state, would and do come within the provisions of the law; and it is hardly possible, and would not be practicable, for a man in the future to go to the necessary expense of purchasing and erecting a gin to gin alone the cotton he might alone raise.

The expense necessary and incident to the ginner complying with this law was variously estimated by the witnesses at from 3 cents per bale to 25 cents per bale. It was shown of some 700 gins ii&pected by the inspectors provided for by the law that only about one-fourth of that number were making any extra charge in ginning cotton, and the one-fourth who did make an extra charge charged on an average of about 25 cents per bale. The expense testified to by Mr. White was that in a gin ginning 30 or more bales of cotton per day the services of an additional man would be required; that three wrappers cost from one-half cent to one cent each, or from 1½ cents to 3 cents per bale; that scales to weigh the samples would necessarily be.required to be purchased, and the scales would cost about $12; that scales to weigh the cotton after it was baled would cost about $40. This is all the additional expense testified to by any witness, -and relator contends that this is a taking of his property without due process of law. If the evils growing out of and connected with ginning cotton has rendered it necessary to regulate the business to eliminate the plating of cotton, to prevent the spraying of cotton, to prevent the sand packing of cotton, and the other evils testified to by witnesses, that the law necessarily fastened this extra charge on the business of ginning cotton would not render the law obnoxious) to the federal or state Constitution. There is many a charge made or license fixed that must be paid or endured necessarily for the public welfare under the laws of this state and of every state in this Union. But is such a charge necessarily fixed on the ginner? The testimony shows that many ginners do, and all could, make a charge under the law to cover this extra expense. 'So the ginner is not necessarily deprived of any property by the law. If he does not gin for the public, and that is not his business, he has no such expense. However, we have no such gins in this state. If he does follow the business or occupation of ginning for others and suffers any loss, he voluntarily does so; for the law forces no expense without allowing him, compensation if he sees proper to charge it for performing the duties required by the law. But take Mr. White’s estimate of the expense; what does it amount to per bale? If one gins as much as 30 bales per day, he must employ an extra man at a cost of $70 per month. Thirty bales per day 26 working days aggregate 7S0 bales per month, or about 9 cents per bale, and the best wrappers, the testimony shows, cost 1½ cents per bale, and adding both together, 10½ cents per bale. All gins already had scales for weighing- the bales after being ginned, and the scales for weighing the samples would last for years, and the cost per bale incident to the purchase of such scales would be infinitesimal, but say one-half cent per bale, and the cost, under the testimony, where an extra man is employed, would not exceed 11 cents per bale, and under all the testimony, both for the state and relator, it is shown that, if the provisions of the law are complied with, the price received for the bale of cotton would be enhanced not less than $5 per bale, and the man who has the cotton ginned could well afford to pay the 11 cents per bale out of the $5 additional received, if the ginner saw proper to make the additional charge. At any rate, there is no taking of the property of the ginher within the meaning - of the Fourteenth Amendment to the Constitution of the United States, and there is not any violation for that reason.

Neither do we think there is taking of the property of the farmer or producer without due process of law, within the meaning of the Fourteenth Amendment to the federal Constitution, or the taking of his property without compensation under section 17 of article 1 of the state Constitution- by requiring a sample of 5⅛ ounces to be deposited with, the ginner. We doubt very seriously whether or not a ginner is in position to raise the question that the law would be invalid for the reason that it takes the property of the farmer; for, if it did do so, it would not be the taking of any property of the ginner. Sweeney v. Webb, 33 Tex. Civ. App. 324, 76 S. W. 766; Bertram v. Commonwealth, 62 S. W. 969; M., K. & T. Ry. Co. v. Cade, 233 U. S. 642, 34 Sup. Ct. 678, 58 L. Ed. 1135; Erie Railway v. Williams, 233 U. S. 685, 34 Sup. Ct. 761, 58 L. Ed., 1155, 51 L. R. A. (N. S.) 1097. But we will not rest our decision upon that ground, and will consider it on the theory that the producer must bear, or can be made to bear, under the law, the 11 cents per bale expense additional to the ginner by the provisions of the law, if it shall be so much, or whatever it may be, and in addition thereto he will be deprived of 5⅛ ounces of his cotton required by law to be deposited with the ginner. At present prices this would figure about 4 cents, or a total of 15 cents per bale, that the producer under the provisions of the law would be finally deprived of by the act; yet under all the testimony, if the law is complied with and the system is carried out, he will receive in addition to the amount heretofore received $5 per bale.

There are but few, if any, men who would object to the regulation of the preparation of his product for market, at so small an expense, if the price he received would be enhanced in so much greater sum than that taken; he would deem it adequate compensation for the property taken. But if the evils exist, as shown by the testimony adduced on this 'hearing, the state under its police power has the authority to correct these evils. But is this a loss to the farmer, or a taking of his property? Under the system heretofore existing, when a farmer carried his cotton to market, two samples were taken from the cotton, one from each side by the spinner buyer. It was “picked” at the cotton yard and compress to the amount of 100,060 bales annually. This loss the provisions of the law seek to eliminate. In addition to this, when the farmer carried his cotton to the cotton yard or warehouse under the old system, he had to pay to have it weighed. This reweighing is no longer necessary; for any and all buyers would rather purchase by the ginners’ weight, which is certified to be correct, and which he has given a bond to insure, and which bond is liable .if incorrectly weighed. This saving will alone compensate the farmer and producer for the 10 or 15 cents additional charge if so much it shall be, but which we are inclined to believe, under the evidence, will not exceed a total expense of from 5 to 10 cents per bale, including the sample. This expense will, in our opinion, be less than the weighing charges heretofore and rendered unnecessary under this act.

Judge Cooley, in his work on Constitutional Limitations, quotes with approval from Chief Justice Shaw in the case of Commonwealth v. Alger, 7 Cush. (Mass.) 53, as follows:

“We think it is a settled principle, growing out of the nature of well-ordered civil society, that every holder of property, however absolute and unqualified may be his title, holds it under the implied liability that his use of it shall not be injurious to the equal enjoyment of others having an equal right to the enjoyment of their property, nor injurious to the rights of the community. All property in this commonwealth is ⅜ ⅜ * Reid subject to those general regulations which are necessary to the common good and general welfare. Rights of property, like all other social and conventional rights, are subject to such reasonable limitations in their enjoyment as shall prevent them from being injurious, and to such reasonable restraints and regulations established by law as the Legislature, under the governing and controlling power vested in them by the Constitution, may think necessary and expedient. This is very different from the right of eminent domain, the right of government to take and appropriate private property whenever the public exigency requires it, which can be done only on condition of providing a reasonable compensation therefor. The power we allude to is rather the police power; the power vested in the Legislature by the Constitution to make, ordain and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of tile commonwealth, and of the subjects of the same. It is much easier to perceive and realize the existence and sources of this power _ than to mark its boundaries, or prescribe limits to its exercise.” A

Again he quotes from Beer Co. v. Massachusetts, 97 U. S. at page 25, 24 L. Ed. 989, as follows:

“Under general police power of the state, persons and property are subjected to all kinds of restraints nnd burdens, in order to secure the general comfort, health, and prosperity of the state, of the power in the Legislature to do which no question ever was or, upon acknowledged general principles, ever can be made, so far as natural persons are concerned.”

That laws may be passed under the police power to suppress fraud is too well established to need a citation of authorities. If a system had grown up whereby some ginners spray the cotton with steam to add to its weight, as testified to on this hearing, a legal fraud is perpetrated on the purchasers of the cotton, and this fraud affects the entire citizenship of the state and the public wel-fáre; for by the testimony it is shown that the. loss incident to this fraudulent practice is taken into consideration in fixing the price to be paid for all the cotton in overhead charges. And while this practice may not be indulged in by but a few ginners, one in the hundred, or a less number, still the price of every bale of cotton grown and marketed in this state is affected thereby and reduced. Again, a legal fraud is practiced in the “plating” of cotton by the ginners, and each man’s bale which is plated with an inferior grade of cotton to his own is defrauded, in that, he must sell it on the sample as shown by this inferior grade, as shown by the testimony in this case, and the prevention of this alone will more than compensate the producers for the expense rendered necessary by the law. If the public welfare demands and authorizes the passage of such a law, that it adds a small additional expense to the preparation for market and marketing of cotton does not render the law unconstitutional; for this taking is not within the meaning of the constitutional provisions.

It was contended that the law was imperfect, in that it provided penalties as against the ginner, but no penalty as against the producer if he changed the “sample” placed thereon by the ginner and sold the cotton by a better and different sample. To prevent this fraudulent practice, it was rendered necessary that one sample should be deposited with the ginner and by him kept in a sealed package. This demonstrated the character of sample delivered to the producer on which to sell the cotton. If the producer should change this' sample, and place a different sample in the receptacle and sell by this different sample, he would be knowingly and intentionally representing to the buyer that the cotton was a better grade than it really was, and this would render him guilty of swindling under the statutes of this state, and for which act the producer who did so could jjp severely punished. And by reason of the fact that a sample must be left with the ginner, the fraud or swindle would be easy of detection. For if, when the bale was thoroughly examined, it was found to correspond with the sample held by the gin-ner, and not to correspond with the sample that the producer sold the cotton by, this would be evidence that the producer had practiced a' fraud of changing the sample, and render him subject to prosecution and punishment. And that is the reason why we suppose, and a sufficient reason why the law compels, a deposit with the ginner of one of the three samples taken from the cotton as it is ginned. It is intended to and will prevent such fraudulent practices, if any one was inclined to do so. And when it is necessary to prevent such fraudulent practices, and require that the article sold shall be of the same kind and character as the sample by which it is sold, that a sample thereof may be required of the seller is the settled law of this state, and has long been in force, without heretofore being questioned, or it being contended that such a provision is vio-lative of any provision of the Constitution.

If this act of the Legislature is to be struck down because one-third of a pound of cotton is taken from the bale and not returned to the owner, then other of our laws must likewise be declared unconstitutional.

Chapter 131, General Laws Passed by the Thirtieth Legislature, § 4, provides:

“Before any concentrated feeding stuff, as defined in section 3 of this act, is so offered or exposed for sale, the importer, manufacturer, and party who causes it to be sold or offered for sale within the state of Texas for use within this state shall ⅜ ⅜ * deposit with said director [of experiment stations] a sealed glass jar or bottle containing not less than one pound of the feeding stuff to be sold or offered for sale, accompanied by an affidavit that it is a fair, average sample thereof and corresponds within reasonable limits to the feeding stuff which it represents, in the percentage of protein,” etc.

The Thirty-Second Legislature passed chapter 109 (Vernon’s Say les’ Ann.. Civ. St. 1914, art. 14c), regulating commercial fertilizers and the sale thereof. Section 5 provides:

“The state chemist shall cause one analysis or more to be made annually of such commercial fertilizer sold or offered for sale under the provisions of this Act as may be sampled under his direction. The state chemist, in person or by deputy, shall have power to enter into any car, warehouse, store, building, boat, vessel, steamboat, or place, supposed to contain fertilizers for the purpose of inspection or sampling, and shall have the power to take a sample for analysis, ■ not exceeding two pounds, from any package or lot of fertilizer found within the state. Any person who opposes the entrance of said chemist or deputy, or in any way interferes with the discharge of his duty, shall be liable to a fine of not less than fifty dollars and not more than five hundred dollars. Said sample shall be drawn by means of a sampling tube of uniform diameter and at least eighteen inches long, placed in a jar or can, sealed and labeled by the inspector. Said sample shall be taken from not less than five bags, but in lots of 100 and over.”

Analyzing the foregoing excerpt from the law, it will be seen at once that the state chemist is given authority to enter upon the premises of any person engaged in the business to which the act refers, and it is made an offense for any one to interfere with his effort to enter or to interfere with him in the discharge of his business; he is given power to take samples for analysis, not to exceed two pounds, from any package or lot of fertilizer found in the state.

These statutes, and other similar statutes, were passed to prevent fraud being practiced in the sale of such articles, and if fraud can be prevented in the sale of such articles, why cannot fraud be prevented in the sale of cotton in a like manner, when the evidence in this cause shows that by reason of the frauds heretofore practiced the price of every bale grown in this state has been affected and reduced by reason of fraudulent practices, not so much by the producers themselves, but by some isolated ginners, who desired to increase the patronage of their gins by giving heavy turnouts, and the practice of nearly all ginners to “plate” every bale of cotton they ginned, in order to gin more cotton per day? Such laws have been sustained in other jurisdictions. Freund on Police Power, § 519; State of Louisiana v. Dupaquier, 46 La. Ann. 577, 15 South. 502, 26 L. R. A. 162, 49 Am. St. Rep. 316; Commonwealth v. Carter, 132 Mass. 12 — and cases cited by these authorities.

Again, if evils have grown up that render the regulation of ginning necessary and permissible under the police power, then the Legislature would have the authority to regulate the price of ginning, if it becomes necessary, and to fix this as a part of the price to be paid for the ginning- of each bale of cotton. Under the police power of a state, the fact that a law requires an expense incident to the marketing of any article be fixed is not unconstitutional if the public welfare demands the passage of such a law to prevent fraud and fraudulent practices. It deprives no man of property without due process of law, and takes no man’s property for public or private use. Such law was enacted to prevent fraud in this instance being practiced on the producer, and to prevent any possibility of the producer practicing fraud under the law, and deemed essential by the Legislature to accomplish these purposes. With the wisdom of the law the courts have nothing to do; that is for the legislative branch of the government. The only question that we can and do pass on is: Have such evils grown up in the ginning of cotton, its preparation and preservation for market, as render it necessary for the Legislature, under the police power, for the public welfare, to enact a law or laws to correct the evils and legally fraudulent practices shown? The evidence before us shows such a condition of affairs, such enormous loss in the marketing of the principal product of the state and evils connected with the system as heretofore practiced, as to authorize the Legislature to act, and whether the law will cure all the evils, or additional legislation may be rendered necessary to effectuate that purpose, is not a question to be decided by us in this case, but for future Legislatures to consider. That it will not and does not effectually cure and remedy all evils shown to exist does not render the law invalid.

We are of the opinion that the act does not deal with two subjects in so far as it relates to the ginning and warehousing of cotton. Both of these are incident to and necessary regulations to the proper marketing of cotton, and necessary to remove the evils shown to have heretofore existed, and which entailed a very heavy loss annually in the sale of our principal product. The law is not vio-lative of any provision of the state or federal Constitution, and should be upheld. And while it may not and probably will not cure all the evils shown by the testimony to exist, yet it is calculated to, intended to, and will prevent some of the fraudulent practices, of which many are not guilty, yet from which all must suffer. We cannot strike down a law because it does not accomplish all we think it should accomplish. If it is within the authority and power of the Legislature to enact, the law must be held valid.

Belator is remanded.

DAYIDSON, J.

I have concluded it would serve no useful purpose now to write at length. The act of the Legislature is so clearly violative of the Constitution it takes no argument to show it. This seems to be so fully admitted by Judge HARPER’S opinion, at least in these respects: (1) That it is omnibus marketing law or legislative act, therefore not subject to constitutional requirement that it should not contain more than one subject; (2) that the property taken from the owner without pay is so trivial that it ought not to invalidate the act; (3) it cannot be held unconstitutional in punishing the ginner for taking the citizens’ property over owners’ protest. Pointedly these matters are violative of guaranties of our Constitution.

On Motion to Retax Costs.

HARPER, J.

In the original opinion all costs incurred in this cause were taxed against relator. He has filed a motion, asking that the costs be retaxed, insisting there is no authority in law to tax any costs against him in this cause. In this contention we do not think he is correct. Article 210 of the Code of Criminal Procedure provides:

“The court or judge trying the cause under habeas corpus may make such order as is deemed advisable or right concerning the cost of bringing the defendant before him, and all other costs of the proceeding, awarding the same either against the person to whom the writ was directed, the person seeking relief, or may award no costs at all.”

It is thus seen that, under this article of the Code, this court is given authority to tax the costs incurred either against the person having relator in custody, or against the relator. As the officer against whom the writ was directed had done no more than the law required him to do, arrest relator on a warrant issued by the proper authorities and placed in his hands, we are of the opinion no costs should be ta'ked against such officer.

By the affidavits on file it is made to appear that, before this cause was called for trial, Mr. Puckitt, of counsel for the state, approached counsel for relator and asked him if they would agree to pay one-half of the expense of a court stenographer. This counsel for relator declined to agree to. Subsequent to this Mr. Puckitt approached counsel for relator and said he had made arrangements for payment of a stenographer. Under such circumstances we are of the opinion that such costs should not be taxed against relator, as this court had stenographers employed who could and would have reported such of the testimony as this court deemed essential to a proper disposition of the case. It is therefore ordered that so much of the order taxing the fees of the stenographer against relator be, and the same is hereby, set aside, and it is ordered that such fees be, and they are hereby, taxed against no party to the same. And, inasmuch as it is apparent from the proceedings that in suing out the application for a writ of habeas corpus relator acted from a belief that the law was unconstitutional, and therefore subject to no improper motive in so doing, it is ordered that so much of the order taxing the fees of the clerk of this court and the Attorney General’s fees he, and the same is hereby, set aside, and it is ordered that the fees of the clerk of this court and the Attorney General be taxed against no party to the suit.

However, as the suing out of the writ rendered it necessary that the other costs be incurred, that is, the witness fees and the sheriff’s fees for summoning the witnesses, and no act of the officer having relator in charge occasioned such costs, but same were brought about by relator suing out the writ, it is the opinion of the court that the fees of the various sheriffs in summoning the witnesses and the fees of the witnesses for attending court in obedience to such process, as proven up, should be charged to relator. It is proper that such fees be paid to the witnesses and sheriffs, and the court, under the law, must exercise its discretion as to whether the officer against whom the writ was directed or relator should pay same; and, after consideration, we have arrived at the conclusion that no just reason exists why same should be taxed against the officer arresting appellant under a valid warrant of arrest, and that as said fees were occasioned by the suing out of the writ, it is ordered, adjudged, and decreed by the court that the fees of the various sheriffs accruing by reason of summoning witnesses in this cause, and the fees of the various witnesses attending court in obedience to such process, be, and the same are, hereby taxed against relator, and unless same are paid to the clerk of this court within ton days from the date of this order, that execution issue for said costs so taxed against relator.
      <@=>For other oases see same topic and KEY-NUMBER in Ail Key-Numbered Digests and Indexes

      <S=>For other cases see same topic and KEY-NUMBER in ail Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: RAINEY,' C. J.

license: Public Domain

text:
    FRUIT DISPATCH CO. v. INDEPENDENT FRUIT CO. et al.
    (No. 7778.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 20, 1917.
    Rehearing Denied Nov. 24, 1917.)
    1. Justices oe ttie Peace @=^164(1) — Appeal —Transcript Showing Jurisdiction.
    On appeal from justice court to the county court, it is necessary for the transcript to show jurisdiction in the county -court; and, if it fails to do so, the appeal will be dismissed.
    2. Appeal and Error @=>715(2) — Affidavits in Support op Jurisdiction — Appeal prom Justice Court — Record.
    The Oourt of Civil Appeals is permitted to take affidavits in aid of its jurisdiction, but can know whether the county court had jurisdiction of an appeal from justice court only from the record sent up from the justice court.
    8. Justices op the Peace @=>159(10) — Appeal to County Court — Time por Piling Appeal Bond.
    Where appeal bond was not filed in justice court until Í6 days after the date of judgment, the county court had no jurisdiction to try the case on appeal.
    4. Appeal and Error @=>20 — Jurisdiction op Appeal — Jurisdiction op Court Below.
    Jurisdiction in the county court of a case on appeal from justice court was necessary to give the Court of Civil Appeals jurisdiction on appeal from the judgment of the county court.
    Appeal from Dallas County Court; T. A. Work, Judge.
    Suit by the Eruit Dispatch Company against the Independent Fruit Company and others. Prom a judgment for defendants, plaintiff appeals.
    Judgment reversed, and appeal dismissed.
    Paul A. McDermott and Smith, Robertson & Robertson, all of Dallas, and Thompson, Barwise & Wharton, of Fort Worth, for appellant. Curtis Hancock, George & Hard-wick, and Saner, Saner & Turner, all of Dallas, for appellees.
   RAINEY,' C. J.

Appellant brought this suit in the justice court to recover of appel-lees for the sum of $187.50, the price of a carload of bananas. Appellant recovered judgment in the justice court, from which appellee attempted to appeal to the county court, which court assumed jurisdiction and tried the case, and judgment was rendered for appellees, from which judgment appellant appealed to this court.

We are met at the threshold of our consideration of this case with the proposition by appellant that the appeal bond was not filed in the justice court within 10 days after the rendition of the judgment of that court, which renders this court without jurisdiction to determine the merits of the controversy involved. The appellees have filed an affidavit of one of the appellees to the effect that a motion for a new trial was filed in the justice court on the day the judgment was rendered in said court, to wit, February 3, 1914, and contends that, as no entry is shown of any action taken by the justice court on said motion, it is to- be presumed that the motion was overruled by operation of law, and as the appeal bond was filed with the justice court on February 19, 1914, which was withiii 10 days after the motion for new trial, it would be presumed to have been overruled by law; therefore we should take jurisdiction of this case.

These contentions raise the question whether or not, under the facts presented, we can assume jurisdiction. The entries, as shown by the justice’s transcript, show no entry in relation to the motion as to being filed or acted upon. No fees are charged in the fee bill, nor is there any motion for new trial among the papers.

After the case reached the county court, some of the papers were lost, which were duly substituted ; but there was nothing done in relation to the motion for a new trial, nor is there any entry on the justice’s docket in relation to it. No question of jurisdiction was raised in the county court, and it is raised here for the first time. In an appeal from the justice court to the county court, it Is necessary for tibe transcript to show jurisdiction in the county court, and, failing to so show, the appeal will be dismissed.

The court is permitted to take affidavits in aid of its jurisdiction; but, to assume jurisdiction in this case, jurisdiction of the county court must have existed, and this court can only know such fact from the record sent up from the justice court. In Chrisman v. Graham, 51 Tex. 454, where an appeal was to the Supreme Court, the question of jurisdiction of the district court was under consideration, it was held that the record must show that fact and an affidavit aliunde the record was not considered. The court said:

“There is,’ however, a marked distinction between this right and that to inquire into the jurisdiction of the court below by evidence aliunde the record.”

In the case of Poole v. Mueller, 30 S. W. 951, it is held:

“Evidence dehors the record is heard by an appellate court when its own jurisdiction is the subject of inquiry. But the jurisdiction of the court from which the appeal comes is determined solely by inspection of the record.”

The transcript in this case showing that the appeal bond was not filed in the justice court until 16 days after the date of the judgment, it follows that ’the county court had no jurisdiction to try the case, which was necessary to give this court jurisdiction.

The judgment of the county court is reversed, and this appeal is dismissed.
      <&5>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    SCHAFF v. STRICKLAND.
    (No. 1829.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 12, 1917.
    Rehearing Denied Nov. 15, 1917.)
    Release ⅞^>18 (5) — 'Validity—Peeeobmance.
    Where an injured servant gave a release on accounr of his injuries, reciting the consideration of three days’ employment, the release was valid and enforceable, although he never returned or presented himself for work, wher%the employer held himself in readiness to give him employment.
    Appeal from District Court, Williamson County; C. A. Wilcox, Judge.
    Action by James Strickland against C. E. Schaff, Receiver of the Missouri, Kansas & Texas Railroad Company of Texas. Judgment for plaintiff, and defendant appeals.
    Reversed, and judgment directed for defendant.
    Wilcox, Graves & Metcalf, of Georgetown, and C. C. Huff, of Dallas, for appellant. Nunn & Love, of Georgetown, for appellee.
   LEVY, J.

The action is by the appellee for damages for alleged personal injuries. Ap-pellee alleges in his petition as follows:

“That while the plaintiff was in the discharge of his duty as section hand, one of the defendant’s trains operated upon the defendant’s line of railway by the servants and agents of the defendant passed the place at which the plaintiff was then working. That upon the approach of the said train the plaintiff stepped back to a safe distance of some 20 or 25 feet from the track, and remained at the said point during the passage of the said train. That while the plaintiff was at the said point, and while the said train was passing, without any negligence or fault upon the part of the plaintiff there fell from said passing train a large piece of rock, slate, or coal, striking this plaintiff upon his leg with great force and violence, bruising, wounding, and permanently injuring the plaintiff’s said leg. That the said train was then and there being run and operated at a very great rate of speed, and that by reason thereof the said projectile, in falling from the said train, was given great momentum and struck this plaintiff with great violence. That the plaintiff’s said injury was due alone to the fault and negligence of the defendant, its servants and agents, and that the plaintiff is unable to give with more certainty the specified acts of negligence of the defendant, its servants and agents, which caused the said injury, but says that the negligence of such servants and agents was the cause of his injury as aforesaid.”

The defendant demurred to the petition; and answered by denial and plea of contributory negligence and assumed risk. There was a trial to a jury, and verdict in favor of the plaintiff.

The evidence shows that the section crew of appellant, of which appellee was a member, was working on the roadbed near Weir. The Texas Special passenger train came along, and the section crew left the track, and appellee stood about 20 or 25 feet from the track. As the passenger train, running about 40 miles per hour, reached a point opposite to where appellee was standing, a piece of slate coal struck his right leg above the ankle with force, inflicting injury to the leg. Appellee testified that the piece of slate coal, about 8 or 9 inches in length, appeared to come from the tender of the passing engine. The facts causing the coal to fall were unexplained by the appellee or his witnesses, and there does not appear any evidence on the part of appellee tending to disprove the facts proven by the defendant respecting a want of negligence on the part of the defendant company. The defendant proved that the coal space on the tender was equipped with the most approved method for holding coal, with circular iron boards at the top extending, about a foot inward into the coal space, so that coal will stay on the inside of the coal space, and not be on the edge of the top of the tender and fall off, and that coal gates were at the point where the fireman gets coal to put into the boiler of the engine; that the coal space of the tender was about half full of coal when the train passed Weir, and there was no loose coal in the space where the fireman secures coal for the boiler; that the coal used on the engine was only “hand-picked” coal, without slate or foreign substance in it; that the train was being carefully handled and operated at the time.

The appellee signed a written release of injuries after his injury; the consideration being three days’ employment as a section hand on the said road. It appears that ap-pellee never at any time after his injury returned to or presented himself for wort for •the appellant. The section foreman testified:

“Since the signing of the release Mr. Strickland lias not presented himself to me for employment. I hold myself in readiness at any time to give him work if he comes.”

The same state of facts as found in the instant case appears in Railway Co. v. Wood, 63 S. W. 164, and that case was followed in Railway Co. v. Clark (Ky.) 106 S. W. 1184. But it is not necessary to decide whether or not the evidence is sufficient, as a matter of law, to establish negligence on the part of appellant, for it is concluded that the appellant’s contention should be sustained that under the undisputed evidence the release is valid and enforceable. The case of Railway Co. v. Fitts, 188 S. W. 528, by the Amarillo court, involves the lease in this suit on quite the same facts, and discusses the same points of law as those involved in this appeal. That case is here followed, necessitating the reversal of the instant judgment.

And a judgment is here directed in favor of appellant, with costs of appeal and of the trial court.
      tfsnsl’or other oases see same topic and KEY-N UMBER in all Key-Nnmbered Digests and Indexes


author: WIBBSON, C. J.

text:
    BAKER v. NIPPER, County Treasurer.
    (No. 1898.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 1, 1917.)
    Í. Appeal and Error <§=640 — Scope of Review — Record—Sufficiency.
    Where the transcript consisted solely of the order refusing the injunction, the appeal bond, and the clerk’s cost bill and certificate, the appeal would be dismissed, as the court could not determine whether the judge erred in refusing the injunction.
    2. Appeal and Error <§=3518(1) — Record — Pleadings.
    Papers purporting to have been filed with the clerk of the trial court, and to he the petition for an injunction and the answer thereto, though sent with the transcript, were not entitled to be filed in the Court of Civil Appeals, and could not be considered as part of the record under the specific provisions of Vernon’s Sayles’ Ann. Civ. St. 1914, art. 2109 et seq., and court rules S5, 94, and 100 (142 S. W. xxiii, xxiv).
    Appeal from District Court, Cass County; H. E. O’Neal, Judge.
    Suit by A. T. Baker against T. B. Nipper, County Treasurer. Prom an order refusing temporary injunction, plaintiff appeals.
    Appeal dismissed.
    A. T. Baker, in pro. per. Elmer B. Bincoln, of Binden, for appellee.
   WIBBSON, C. J.

The transcript does does not contain the pleadings of the parties. It consists solely of (1) the order of the district judge refusing to grant appellant a temporary injunction, from which order the appeal is prosecuted; (2) the appeal bond; and (3) the clerk’s cost bill and certificate. As this court cannot determine from such a record whether the district judge erred when he refused to grant the relief sought, or not, it will dismiss the appeal, following the course pursued by the Supreme Court in Watson v. Watson, 69 Tex. 105, 5 S. W. 377, and Hubby v. Harris, 59 Tex. 14. Papers purporting to have been filed with the clerk of the court below and to be appellant’s petition for an injunction and appellee’s answer thereto, were, it seems, sent to this court with the transcript ; but they were not entitled to be filed here, and cannot be considered as a part of the record on the appeal. Vernon’s Statutes, art. 2109 et seq.; rules 85, 94, 100 for District and County Courts (142 S. W. xxiii, xxiv); rule 22 for Courts of Civil Appeals (142 S. W. xii); Maass v. Solinsky, 67 Tex. 290, 3 S. W. 289; Clayton v. Preston, 54 Tex. 418; Crawford v. Abbey, 79 S. W. 346; Watkins v. Hopkins County, 72 S. W. 872; Eastin v. Ferguson, 4 Tex. Civ. App. 643, 23 S. W. 918.

The appeal is dismissed.


author: HODGES, J.

text:
    BEENE v. NATIONAL LIQUOR CO. et al.
    (No. 1836.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 1, 1917.)
    Eraudulent Conveyances <§=47 — Bulk Sales Baw — Mortgages — Validity — ‘ ‘Transfer.”
    Mortgaging a stock of goods in bulk is a “transfer,” if not a “sale,” prohibited by Vernon’s Sayles’ Ann. Civ. St. art. 3971, providing that any sale or transfer of a stock of merchandise otherwise than in the ordinary course of trade is void as against creditors unless 10 days’ notice is given.
    [Ed. Note. — Eor other definitions, see Words and Phrases, First and Second Series, Transfer.]
    Appeal from District Court, McBennan County; E. J. Clark, Judge.
    Suit by the National Biquor Company against the Archenhold Company and W. P. Beene. Prom the judgment rendered, Beene appeals.
    Affirmed.
    See, also, 189 S. W. 86.
    Boyd & Bell, of Teague, for appellant. Boggess & Ñaman and Nathan Patten, all of Waco, for appellees.
   HODGES, J.

This suit was filed by the National Biquor Company against Anderson & Baggett, a partnership, and the Archen-hold Company, a corporation. The petition alleged, in substance, that it held against Anderson & Baggett a claim for $36.53 due and unpaid; that in July, 1914, Anderson & Baggett, being indebted to a number of persons, in order to divide their assets equitably among all their creditors, entered into a trust agreement with Archenhold Company by which they delivered to that company their stock of merchandise, with the understanding that Archenhold Company should sell same within a reasonable time and. divide the proceeds equitably among all the creditors of Anderson & Baggett. The Arch-enhold Company accepted the trust and took possession of the merchandise, but had failed and refused to execute the trust. It is further alleged that the value of the stock of merchandise amounted to $800. In conclusion, the plaintiff asked for .-judgment for the amount of its claim and that Archenhold Company be directed to perform the conditions of the trust. Other creditors, among whom were the appellant, W. P. Beene, were brought into the suit. Beene claimed a debt against Anderson & Baggett amounting to more than $1,000, and also claimed a lien by virtue of a mortgage upon the stock of goods which had been intrusted to Arch-enhold Company. The latter company answered admitting the facts substantially as alleged by the plaintiff in the suit, but denied the validity of Beene’s mortgage.

The case was tried before the court without a jury, and the following is the substance of the findings of fact and conclusions of law: Anderson & Baggett were during the year 1914 engaged in business as retail liquor dealers, near the town of Oakwoods, Freestone county, Tex. On or about July 1st of that year, they became insolvent and discontinued business. They had at that time in their possession at their place of business a stock of goods, wares, and merchandise of the value of $800. On the 9th day of July, 1914, Anderson & Baggett turned over to a representative of the Archen-hold Company their entire stock of goods, with the understanding and agreement that the stock was to be immediately shipped to Waco, Tex., to be within a reasonable time converted into cash by the Archenhold Company and the proceeds equitably divided among all the creditors of Anderson & Bag-gett. Archenhold Company through its agent took actual charge of the stock of goods on the morning of July 10,1914, and shipped the same to Waco. The goods arrived in Waco on July 13, 1914, and have since remained and are still in the possession of Archenhold Company; the latter having made no attempt to dispose of the stock under the agreement above referred to. On July 10th, one day after the agreement made with Archenhold Company, and after the delivery of the stock of goods to its agent for transportation to Waco, Anderson & Baggett executed to W. P. Beene the note and mortgage set out in his pleading. At that time Beene had notice of the shipping of the stock of goods to Waco. The original mortgage was filed in the office of the county clerk of McLennan county on the 15th day of July, five days after its execution and delivery. There were daily mails from Teague to Waco, and had the mortgage been deposited in the mail on the day of its execution it would have reached Waco and might have been delivered to the county clerk on either the 11th or 12th of July, 1914, or the day upon which the stock of goods arrived in Waco. No attempt was made by Beene or any of the parties to comply with the provisions of the statute relating to the sale or transfer of stocks of merchandise in bulk. At the conclusion of the trial, and by agreement of all parties in open court, a receiver was appointed to take charge of the stock of goods and sell it under the direction of and subject to the approval of the court, and the money be paid into the registry of the court without prejudice to the rights of any of the parties to proseeute an appeal. The court then concludes as follows: (1) that the deed of trust cannot, as a matter of law, be recognized and enforced as a valid assignment, because not made in accordance with the requirements of the statutes relating to assignments. Consequently all liens claimed thereunder are invalid and of no effect. (2) That the mortgage held by Beene was, as between the mortgagor and the mortgagee, valid and binding, but void as to the creditors of Anderson & Baggett for the following reasons: First, because not filed forthwith, and, second, because the terms of the bulk sales law had not been complied with, the mortgage being a transfer within the meaning of that statute. Other conclusions followed as to personal judgments not involved in this appeal.

The only assignments of error presented are those which attack the court’s conclusions of law in holding that the deed of trust held by Beene was invalid. It will be observed that the court placed his conclusions upon two grounds: One, the failure to comply with article 5655 of the statute, which required chattel mortgages to be filed forthwith in the office of the county clerk; the other, because the requirements of article 3971, known as the bulk sales statute, had not been complied with. If the latter objection urged to the validity of the mortgage be sound, it is immaterial whether it was promptly filed for registration or not. The article of the statute last referred to provides:

Any sale or transfer of any portion of a stock of merchandise otherwise than in the ordinary course of trade in the usual and regular prosecution of the seller’s or transferor’s business, or a sale or transfer of an entire stock of merchandise in bulk, shall be void as against creditors of the seller or transferor unless previous notice shall be given ten days before the transfer is made.

The question is: Does the giving of a chattel mortgage on a stock of goods in bulk offend the provisions of that article? In other words, is a mortgage either a sale or a transfer within its meaning? The purpose of this article of the statute was to prevent an insolvent from giving a secret preference to one or more of a number of creditors. It is clear that he could not make a sale In bulk without complying with the terms of the statute; but, if he may mortgage the stock to a particular creditor and thereby give the latter a prior right to thereafter have the stock of merchandise sold in bulk and the proceeds applied to the satisfaction of his debt, the evasion of the statute would be easy. It is not likely that such an obvious opening was overlooked by the Legislature. In construing article 5654 of the last revision of the statute, in Bowen v. Lansing Wagon Works, 91 Tex. 385, 43 S. W. 872, our Supreme Court held that a mortgagee was a purchaser within the meaning of the language there used. While a mortgagee does not under our law become the holder of the title to the mortgaged property, he does acquire, by virtue of a transfer from the owner, some fixed interest in the property, of which he cannot be devested without his consent. Hence we conclude that mortgaging a stock of goods in bulk is a “transfer,” if not a sale, which is prohibited by statute except upon the conditions named. If the owner of a stock of goods will not himself be permitted to sell it in bulk until the notices provided for have been given, certainly he cannot confer that right upon a third . party or upon the court in the judicial fore* closure of the mortgage. He will not be permitted to do by indirection through another what he could not himself do directly.

It is unnecessary to notice the remaining assignment of error.

The judgment is affirmed.
      ferfFnr otbev cases see same topic and KEY-NUMBER il all Key-Numbered Digests and Indexes


author: WILLSON, C. J.

text:
    TEXAS & P. RY. CO. v. JONES.
    (No. 1772.)
    (Court of Civil Appeals of Texas. Texarkana.
    July 5, 1917.
    On Motion of Appellee for Rehearing, Oct. 24, 1917.)
    1. Masteb and Servant <&wkey;112(l) — Negligence — Sake Place to Work.
    A railroad owes to a carpenter, who fell off of a bridge because the head of a spike which he was attempting to pull broke off, no duty not to use old and secondhand spikes.
    2. Master and Servant &wkey;>124(3) — Negligence — Duty to Inspect and Warn oe Defects.
    A railroad has no duty to inspect spikes for defects as to one who fell off a bridge on account of the head coming off of a spike he was attempting to pull in repairing or constructing a bridge.
    3. Master and Servant <&wkey;278(14) — Negligence — Duty to Warn oe Defects — Evidence.
    In an action against a railroad for injuries from a fall from a bridge by becoming overbalanced while pulling a spike, the head of which broke off, evidence held insufficient to warrant a finding that defendant had notice of the defect.
    4. Master and Servant &wkey;>154(l) — Dangerous Work — Duty to Instruct.
    In an action against a railroad for a fall from a bridge by reason of becoming overbalanced by the breaking off of the head of a spike which plaintiff was attempting to pull, defendant owed no duty to instruct plaintiff of the danger of such work, especially where plaintiff had been doing such work for four months and the only thing he had no knowledge of was the defect in the spike, which the railroad was under no duty to inspect.
    Appeal from District Court, Cass County; J. A. Ward, Judge.
    Suit by D. Jones, Jr., against the Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals. Reversed and judgment rendered.
    Motion for rehearing overruled.
    While working as a bridge carpenter for appellant, appellee fell from its bridge over the Trinity river to the bed thereof, a distance of 21 or 22 feet, and was thereby injured. On the ground that he so fell because of negligence on the part of appellant, he recovered the judgment for $5,000 against it, from which this appeal was prosecuted.
    At the time he fell from the bridge, ap-pellee was engaged in pulling iron spikes from ties into which they had been driven to hold one of the steel rails laid thereon. He was standing on the ties in a space 22 inches wide between the rail and the end of the ties, and was using a claw bar about 5 feet long to draw the spikes. One of the spikes was so defective its head broke off when he attempted to pull it, which caused him to become unbalanced and to fall as stated.
    Glass, Estes, King & Burford, of Texar-kana, and W. B. Figures, of Atlanta, for appellant. Hugh Camey and O’Neal & Allday, all of Atlanta, for appellee.
   WILLSON, C. J.

(after stating the facts as above). We think there was no testimony on which to predicate a finding that appellant failed to discharge a duty it owed to appellee, and that the trial court therefore erred when he refused to instruct the jury to find in appellant’s favor.

“The negligence of the defendant,” says appellee in his brief, “relied upon as a basis for recovery and as submitted to the jury in the court’s charge, was as follows:

“(1) In using old worn secondhand spikes in constructing and repairing said bridge prior to plaintiff’s injury.”

It is clear, we think, that appellant violated no duty it owed to appellee if it used such spikes for such a purpose. The bridge, -for the use he was making of it, was as safe as it would have been had appellant used new and perfect spikes in constructing or repairing it. He did not fall from the bridge because of a faulty construction thereof. He fell because of a defect in the spike which made it dangerous for him to attempt to pull it as he did. It is plain that appellant in constructing the bridge did not owe to one whom it might afterwards employ to demolish or repair it a duty not to use “old worn secondhand” material.

“2. In knowing the faulty and dangerous condition of said spikes and failing to warn plaintiff thereof.”

There was testimony that the spike had been used before it was used in repairing the bridge, about four months prior to the time appellee was injured, but none other that it was defective when used in repairing same. We think that testimony did not authorize an inference that the spike was unfit for use in repairing the bridge and that appellant knew it at the time it directed appellee to pull it. If therefore appellant should have been held to have then had knowledge of the defect in the spike, it was because it was its duty to have inspected it before directing ap-pellee to pull it. We have been referred to and have found no authority supporting the contention made that appellant owed such a duty to appellee. It would be as reasonable, it seems to us, to say that the owner of a house must inspect nails holding boards constituting the roof thereof and warn a carpenter who undertook to tear it away of defects in the nails, as to say appellant owed to appellee a duty to discover defects in the spikes before directing him to pull them. M., K. & T. Ry. Co. v. Johnson, 174 S. W. 617, cited by appellee as supporting his contention, was not like this case. Johnson was injui’od because the handhold furnished him for use in tightening the defective nut to the bolt which held it gave way. If appellee had fallen as he did because of a defect in the clawbar appellant furnished him for use in pulling the spike, his case would be like Johnson’s. The defendant in the Johnson Case owed him the duty to use due care to see to it that the handhold was reasonably safe for the use it expected him in the discharge of his duty to make of it. It was one of the instrumentalities furnished him for use in tightening the nut to the bolt. Not so with the spike in this case. It was not an instrumentality furnished to appellee to use in tearing away the bridge, but was a thing necessary for him to remove in tearing it away. Broderick v. Railway Co., 74 Minn. 163, 77 N. W. 28.

“3. In failing to warn and instruct plaintiff in the accomplishment of a dangerous piece of work, plaintiff at said time being inexperienced in such work, and defendant well knowing plaintiff’s inexperience.”

The work was dangerous only because it was on the bridge, off of which appellee was liable to fall. When he undertook to do the work and while he was engaged in doing it, appellee knew as much as appellant did about the danger he incurred on that account. He lacked neither age nor experience in that kind of work. He was 34 years old, and for more than four months had been working for appellant as a bridge carpenter. He testified that during that time he pulled a great many spikes, some of which were “more or less defective.” The only thing connected with the work that he did not know about and appreciate the danger of was the defect in the spike. If, as we think is true, appellant, before directing him to pull it, was not bound to inspect the spike and warn him of the defect in it, appellant violated no duty it owed to him.

As we view the testimony, it did not authorize a finding that appellant was liable to appellee for damages he suffered. Therefor the judgment in his favor will be reversed, and, it appearing that the facts of the case were fully developed at the trial, judgment will be here rendered that appellee take nothing by his suit against appellant.

On Motion of Appellee for a Kehearing.

Appellee insists that the judgment should have been affirmed, and suggests that the error, as he sees it, of this court in reversing it, was due to a misapprehension of the record, in that it appeared from the testimony, he asserts, that the spike had deteriorated 50 per cent., and that appellant knew it when it used same in repairing the bridge, four months before the time when it directed him to draw the spike. It is insisted that the failure of appellant (having such knowledge, it is asserted) to warn appellee (who was without such knowledge) of the danger to be incurred because of the defect, in attempting to draw the spike, authorized a finding of negligence on its part. There was testimony which, we think, would have authorized an inference that the spike was defective when used in repairing the bridge, but there was no testimony showing that appellant then, or afterwards before the accident occurred, knew it was defective. If, in repairing the bridge, appellant had owed to appellee a duty not to use defective spikes, it would have owed him a duty to exercise care, by inspecting or otherwise, to discover the defect in the spike in question. In such a case, a jury might have assumed that appellant discharged the duty it owed, and, if the defect was discoverable by the use of proper care, that appellant discovered it, and, having then discovered it, knew four months afterwards of the danger to be incurred in attempting to draw the spike. But, as stated in the opinion disposing of the appeal, appellant did not owe such a duty to appellee. Therefore, we think, an inference of knowledge on its part of the defect in the spike was not authorized by testimony showing merely that the spike was defective when used to repair the bridge.

The motion is overruled.

      te>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes