text:
    PADGETT v. GUILMARTIN.
    (No. 2330.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    Trespass to Try Title (§ 6) — 'Title to Support — Tenant in Common.
    Where plaintiff proves title in himself to five-sevenths of the land in controversy through conveyances of five of the seven heirs of the original owner, he may recover all the land in trespass to try title as against a mere trespasser.
    [Ed. Note. — For other cases, see Trespass to Try Title, Cent. Dig. §§ 5-9, 15, 16; Dee. Dig. § 6.)
    Error to Court of Civil Appeals of First Supreme Judicial District.
    Action by E. P. Padgett against J. F. Guil-martin. From a judgment of the Court of Civil Appeals (138 S. W. 1143) reversing in part a judgment for plaintiff, he brings error.
    Reversed, and judgment of district court affirmed.
    E. P. Padgett, of Hemphill, in pro. per. A. E. & S. M. Davis, of San Augustine, for defendant in error.

      For other oases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   BROWN, C. J.

We copy from the opinion of the Court of Civil Appeals the following statement of facts upon which the court entered its final judgment:

“The evidence in the record justifies the following fact conclusions: The land in controversy is a part of a tract of land titled to Wm. Clark by the Mexican government in June, 1835. On October 12, 1838, Wm. Clark conveyed a part of his headright survey, which included the land in controversy, to his> son, Elijah Clark. Appellee claims title through deeds executed to him by certain of the heirs of Elijah Clark. About the year 1853, Elijah Clark contracted to sell to his brother-in-law, Paschal Ashmore, 100 acres of land, being the land in controversy; the consideration being that Ashmore would pay $1 per acre for the land and move onto the tract and be a neighbor of Elijah Clark. Acting under this contract, Ashmore built a small log house or hut on the land, cleared up a few acres, which he partially fenced, and with his wife moved on the land and lived there a little more than a year, when he and his wife separated and both moved off and abandoned the land. The contract between Ashmore and Elijah Clark was verbal, and Clark never executed any deed or other conveyance of the. land to Ash-more. Elijah Clark died soon after Ashmore left the place, and his wife died in 1863. While the testimony is meager, we think it sufficient to support the court’s conclusion that Ashmore never paid for the land. There was never any active assertion of title by any of the Clarks after Ashmore moved off the place until about the time plaintiff purchased the land, but the Clarks believed that the land had not been paid for by Ashmore, and some of them were openly claiming the land as far back as 25 or 30 years ago. They never paid taxes on it, however, after Ashmore went into possession. When Ash-more moved off the land, he sold his improvements thereon to Colon McRae, but made him no deed to the improvements or to the land. On October 10, 1869, H. C. Hicks sold the land in controversy to J. M. Burroughs, reciting in the deed that it was the same land that J. H. McRae had previously sold to Hicks. There was no proof offered to show that the title was ever in J. H. McRae, and none to show a conveyance by McRae to Hicks, except the recital in the deed above mentioned. Burroughs died leaving a will which was duly probated, and defendant Guilmai'tin claims the land by mesne conveyances from the executors of Burroughs’ estate. The land was rendered for taxes in 1861 by J. I-I. McRae, and in 1862 and 1868 by H. C. Hicks, from 1869 to 1891 by Burroughs, and from 1891 to 1908 by Burroughs or Guil-martin. No one has ever had actual possession of the land or any part of it from the time Ash-more moved off until after appellee Padgett bought it, when appellant inclosed it with a wire fence.
“We think these findings justify the court’s conclusion of law that ‘Elijah Clark died possessed of the land sued for and that it passed by inheritance to his children,’ and we conclude, also, that appellee Padgett, by his deeds, acquired the title of such of the heirs of Elijah Clark as executed conveyance to him.
“What we have said in disposing of the twenty-third assignment applies also to the twenty-fourth, twenty-fifth, twenty-sixth, and twenty-seventh assignments, which, with their several propositions, are overruled.
“The twenty-eighth and thirtieth assignments have’ been examined by us, and we are of opinion that neither of them points out reversible error, and they are overruled.
“By the twenty-ninth assignment appellant complains that the court erred in the twelfth paragraph of its findings of fact to the effect that the heirs of Elijah Clark had conveyed the land in controversy to the appellee Padgett. He contends that this finding is in direct conflict with the evidence offered on the trial by the plaintiff, which shows that plaintiff did not buy the interest of two of the seven heirs of Elijah Clark.”

If we assume that the evidence shows Padgett to be the owner of only five-sevenths of the land in controversy and that title to two-sevenths remains in Clark’s heirs, still Padgett was entitled to recover possession of all of the land for himself and the owners of the two-sevenths, his tenants in common, as against Guilmartin, who was a naked trespasser. Croft v. Rains, 10 Tex. 523; May v. Slade, 24 Tex. 205; Presley v. Holmes, 33 Tex. 476.

In the case last cited the court stated the rule distinctly thus:

“This is an action of trespass to try title, brought in the district court of Shelby county by the appellee, together with Caroline E. Edge-worth. The latter abandoned the suit, and the action proceeded in the name of the appellee, and it is urged by the appellant that this was error for which we should reverse the judgment. The law is too well settled by the elementary authorities, as well as in the adjudicated cases, to require much comment here, that one joint tenant or tenant in common may maintain either trespass or ejectment, in his own name, against a mere trespasser or wrongdoer.”

The Court of Civil Appeals erred in reversing the judgment of the district court and rendering judgment for Guilmartin. It is therefore ordered that the judgment of the Court of Civil Appeals be reversed and set aside, and the judgment of the district court be affirmed. It is further ordered that the plaintiff in error recover of the defendant in error all costs in all the courts.


source: Caselaw Access Project

author: BROWN, C. J.

license: Public Domain

text:
    MUNSON et al. v. LOONEY, Atty. Gen.
    (No. 2665.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    Counties (§ 150) — Power to Incur Debt-Constitutional Limitations — Drainage and Roads.
    Under Const, art. 3, § 52, limiting the bonded indebtedness of any county or district thereof for drainage and road building to 25 per cent, of the assessed valuation of real estate in the territory affected, and under Rev. St. 1911, art. 2595, passed in accordance with such constitutional provision, while two districts may be formed of the same territory for the two purposes of drainage and road building, or two districts may have part of their territory in common, nevertheless the aggregate indebtedness incurred for drainage and road building in- such common territory must not exceed 25 per cent, of the total assessed valuation of its real property.
    [Ed. Note. — For other cases, see Counties, Cent. Dig. §§ 165, 166, 215-217; Dec. Dig. § 150.]
    Original petition for mandamus by J. W. Munson and others to compel B. F. Looney, Attorney General, to approve a county bond issue.
    Writ refused.
    Hart & Woodward, of Austin, and C. D. Jes-sup, of Angleton, for relators. B. F. Looney, Atty. Gen., and W. M. Harris and Luther Nichols, Asst. Attys. Gen., for respondent.

      For other eases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes-

   BROWN, C. J.

This is a proceeding by the relators against the Attorney General to require' him to approve an issue of $50,-000 of bonds made by the county of Brazo-ria under the following state of facts:

By a proper proceeding under the law of the state, and in accordance with the Constitution of the state, Brazoria county created a road district No. 5, and by a vote of the citizens of the said district provided for the issue of $50,000 of bonds upon the property of the said district. The bonds were issued and presented to the Attorney General for approval, which was declined.

The road district No. 5 included all or a part of drainage districts Nos.- 5 and 8 in the said county. The drainage districts had been previously created, and bonds issued to the amount of 22 per cent, of the taxable values of the real estate of drainage district No. 5, and of 21.2 per cent, of the taxable values of the real estate of district No. 8. If the $50,000 in bonds had been approved by the Attorney General, it would have increased the bonded indebtedness of district No. 5 and district No. 8, each, to an amount greater than 25 per cent, of the assessed value of the real estate in each.

As before stated, this is a proceeding in which it is sought to have a mandamus issued to the Attorney General, requiring him to approve said bonds, and the question that is presented here for examination and determination is: Would the approval of the $50,000 in bonds increase the amount of bonds on the two drainage districts, or either of them, to an amount greater than the constitutional limitation? Counsel for both parties have discussed many questions in this case, which, in the opinion of the court, are wholly irrelevant to the real issue, which is, to our minds, very simple. We will first endeavor to strip this case of all of its complications and misleading propositions, so as to make clear and unquestionable the proper course to be pursued in issuing such bonds.

The opinion in the case of Simmons v. ^Lightfoot, 105 Tex. 212, 146 S. W. 871, seems to be wholly misunderstood and misinterpreted by the attorneys on both sides of this contention. Indeed, from ■ some cause or other, the misunderstanding of that case seems to have caused the only difficulty in this case. We will first outline that which might have been done in compliance with the Constitution.

Article 3, § 52, of our Constitution, denies to the Legislature the power to authorize any city, town, or county, or any subdivision in the state, to lend its credit, etc.—

“provided, however, that under legislative provision any county, * * * upon a vote of a two-thirds majority of the resident property taxpayers voting thereon who are qualified electors of such district or territory to be affected thereby, in addition to all other debts, may issue bonds or otherwise lend its credit in any amount not to exceed one-fourth of the assessed valuation of the real property of such district or territory, * * * and levy and collect such taxes to pay the interest thereon and provide a sinking fund for the redemption thereof, as the Legislature may authorize, and in such manner as it may authorize the same, for the following purposes, to-wit: * * * (b) .The construction and maintenance of pools, lakes, reservoirs, dams, canals and waterways for the purposes of irrigation, drainage or navigation, or in aid thereof, (c) The construction, maintenance and operation of macadamized, graveled or paved roads and turnpikes, or in aid thereof. (Declared adopted December 29, 1904.)”

In exercise of the authority granted, the Legislature enacted a statute containing these provisions:

“Art. 2595. Drainage Bonds; Order for Issuance ; Amount. — After the establishment of any such drainage district, and after making and filing of such map, profiles and estimates as provided for in section 21 of this act [article 2593], the commissioners’ court shall make an order directing the issuance of drainage bonds for such district, sufficient in amount to pay for such proposed improvements together with all necessary, actual and incidental expenses connected therewith: Provided, however, that said bonds shall not exceed in amount one-fourth of the assessed valuation of the real property in such district, as shown by the last annual assessment thereof, made for said drainage district, nor exceeding the amounts specified in said order and notice of election.”

Under that law, drainage districts Nos. 5 and 8 in Brazoria county were created. District No. 5 issued bonds to the amount of 22 per cent, of the assessed value of the real estate within its limits. District No. 8 was created in said county, and adjoining No. 5, which issued bonds to the amount of 21.2 per cent, of the assessed value of all real estate within said district If the bonds now sought by this procedure were issued by either the fifth or the eighth district, it would result in charging upon such district a sum greater than one-fourth of the assessed value of the real estate therein, in violation of the Constitution.

If the bonds presented had been approved by the Attorney General, it would have appropriated to the payment of bonds more than one-fourth of the assessed value of the real estate in each of the districts named, in direct violation of the 'Constitution of the state. This question was so ably and carefully discussed in Simmons v. Lightfoot, Attorney General, 105 Tex. 212, 146 S. W. 871, that we deem it unnecessary to repeat conclusions reached and expressed in that case further than to quote as follows:

“No good reason presents itself to us why the formation of one district for the purpose of promoting one of the five enterprises sanctioned by the Constitution and laws of the state should preclude the formation of another district for a different purpose sanctioned by the same authority, embracing a portion or all of such antecedent district. A defined district in need of drainage might equally be in need of good roads, and the same exigency might be urged in relation to each of the purposes for which such districts may be formed. To hold that the formation of one district for a single purpose would deny the use of any part of such district for any other purpose would deny effectiveness to the Constitution and the legislative acts pursuant thereto. One district may embrace a part or the whole of- another, or be so' formed as to adopt the exact territory with the same metes and bounds, and, being for a different purpose, is a distinct unit or entity, with power to exercise the functions of its creation. Allman v. Lumsden et al. Drainage Com’rs, 55 Ill. App. 21; People ex rel. Robert T. Miller v. Scott, 132 Ill. 427 [23 N. E. 1119] * * * While it is true we have held as herein stated that two or more districts for different purposes may embrace the same territory and remain separate and distinct units or entities, yet from this it does not result that the real property the subject of taxation is distinct in such districts so formed. The taxable property remains the same while administered over by separate and distinct entities, and their joint authority to create a debt against this property is limited by the Constitution to the aggregate amount of one-fourth of the assessed value of such property. This seems to us to be the plain and undoubted language of the section of the Constitution under consideration. To give the section a different construction might lead to injurious results and such as we feel sure were never contemplated by those who proposed the amendment to the Constitution by legislative resolution, or who adopted it by the exercise of the ballot’s sovereignty.”

That clear and forcible statement of the law which confers the powers to issue such bonds, and the limitation upon its exercise, is so clear, that the writer cannot improve upon it, and we adopt it as quoted herein. The Attorney General properly refused to approve the bonds.

The writ of mandamus is refused.


author: PHILLIPS, J.

text:
    PECOS & N. T. RY. CO. et al. v. RAYZOR.
    (No. 2341.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    1. Judgment (§ 15) — Lack of Jubisdiction —Effect.
    The judgment, and all other proceedings, of a court inherently without power to hear and determine the suit, are mere nullities.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 22, 23; Dec. Dig. § 15.]
    2. Limitation of Actions (§ 120*) — Statute of Limitations — Filing Suit as Intebruption — Lack of Jurisdiction of Court.
    Where the trial court has absolutely no jurisdiction of an action under the pleadings, the filing of the petition cannot interrupt the running of the statute of limitations on the cause of action.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 536; Dec. Dig. § 120.]
    3. Limitation of Actions (§ 120) — Commencement of Suit — Petition—Sufficiency to Give Jurisdiction.
    Where a petition is susceptible of the construction that it asks $975 as damages with interest on the judgment, not $975 and interest as part of the judgment, the first construction will be adopted to support the county court’s jurisdiction of the suit, so that the filing of such petition interrupted the running of the statute of limitations.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. § 536; Dec. Dig. § 120.]
    Certified Questions from Court of Civil Appeals of Second Supreme Judicial District.
    Action by J. N. Rayzor against the Pecos & Northern Texas Railway Company and another. Judgment for plaintiff, and defendants appealed, and the Court of Civil Appeals certified question to the Supreme Court.
    Question answered.
    See, also, 125 S. W. 619.
    Emory C. Smith, of Denton, Spoonts, Thompson & Barwise and J. M. Chambers, all of Et. Worth, Terry, Cavin & Mills and A. H. Culwell, all of Galveston, and Rodman S. Cosby, of Houston, for appellants. Ows-ley & Sullivan and Alvin M. Owsley, all of Denton, for appellee.

      For other cases-see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   PHILLIPS, J.

The honorable Court of Civil Appeals for the Second District has certified for our determination the question appearing at the close of their certificate, which is here copied:

“The above-entitled cause is now pending before us on a motion for rehearing, and we deem it advisable to certify to your honors the question hereinafter stated arising from the following state of facts:
“On the 5th day of October, 1907, appellee J. N. Rayzor filed his original petition in the county court of Denton county complaining of the Pecos & Northern Texas Railway Company and the Et. Worth & Denver City Railway Company because of negligence and resulting damages to a shipment of pianos from Denton, Tex., over the railway lines of the companies named to Hereford, Deaf Smith county, Tex. It was alleged in said original petition that said pianos were delivered to said defendants on ‘ the 12th day of September, 1906, and, after alleging the negligence relied upon and making other necessary averments, it was further charged that: ‘The said pianos were so carelessly and negligently handled and managed by the said defendants and each of them that they were broken and defaced, and otherwise injured in so much that the value was reduced in the sum of $850, and the plaintiff was put to the further cost and expense in repairing and handling the said pianos in his endeavor to lessen the damage as much as possible in the sum of $125 and that the plaintiff was thereby damaged in the sum of $975. That in the manner and by the means aforesaid, the defendants, and each of them, became justly indebted to the plaintiff in said sum of $975, and though the same is long since due, and the plaintiff has often demanded payment thereof, the defendants and each of them have wholly failed to pay the same or any part thereof and still fail and refuse so to do, to plaintiff’s said damage in the said sum of $975. Wherefore plaintiff prays that the defendants be cited to answer this petition, and that on the trial hereof he have judgment for his said damages in the sum of $975, with legal interest thereon, for costs of suit, and for general relief.’
“On January 4, 1908, appellee filed his first amended original petition, which sets forth the negligence relied upon and the manner and extent of damage in substantially the same terms as was used in the original petition. A trial thereon before the court without a jury resulted in a judgment in favor of appellee for the sum of $700. On appeal from the judgment referred to, it was reversed and the cause remanded by us, on the ground that the damages stated in the petition exceeded the county court’s jurisdiction, as will'more fully appear from the opinion in the case reported in Ft. Worth & D. C. Ry. Co. v. Rayzor, 125 S. W. 619. Thereafter on April 25, 1910, appellee filed his second amended original petition in all material respects averring negligence and claiming damages in manner and total amount as in his said two former petitions, but with the following further allegation and prayer, viz.: ‘That the plaintiffs herein have never sued for or. sought to recover interest upon the damage suffered by them as aforesaid, except from and after the rendition of a final judgment in this cause, and have not sought to recover, either by way of damages, interest, or otherwise, any sum exceeding the sum of $975; but they have laid their damages at said sum of $975 to cover the full amount herein sued for, including their damages, and such interest as they may be entitled to from and after the rendition of the judgment herein.’ And the prayer, so far as material, was for ‘judgment for his (appellee’s) said damages in the said sum of $975, with legal interest thereon from the rendition of the final judgment herein and no more.’ To this second amended original petition the defendants, among other things, for the first time interposed the plea of the two years’ statute of limitation. The trial before a jury resulted in a verdict and judgment for $750 equally apportioned between the appellants herein. The present appeal is from this latter verdict and judgment, and substantially the only question presented on this appeal is whether appellee is px-ecluded from a recovery by virtue of the two years statute of limitation. On a former day of this term the majority concluded that he is; Conner, C. J., dissenting, as will more fully appear by the opinion then rendered to be transmitted herewith.
“We, accordingly, certify to your honors for determination the question whether, under the allegations and statements hereinbefore made, appellee is barred by the two years’ státute of limitation from all recovery.”

If the county' court was without jurisdiction of the cause of action declared upon in the original petition, the filing of the petition was not the “commencement and prosecution of a suit,” and did not operate as an interruption of limitation. Ball v. Hagy (Civ. App.) 54 S. W. 915; I. & G. N. R. R. Co. v. Elory (Civ. App.) 118 S. W. 1116; Sweet v. Light Co., 97 Tenn. 252, 36 S. W. 1090. We think that is evident. Nothing is better settled than that, in a suit which the court is inherently without the power to hear and determine, any judgment rendered and all proceedings had in its relation are mere nullities. Under this fundamental rule, with the court destitute of all authority to give to the suit any cognizance, it is difficult to conceive that the filing of the petition could have any legal effect. To constitute the proceeding “a suit” or “action,” in any legal sense, it is essential that it rest in a court, with the power to hear it. Without such a forum it is not “a suit,” since it lacks that which is as necessary to make it a suit as the petition itself. That which the law denominates as a wholly vain proceeding can hardly be characterized “a suit” or “action.” If it will support nothing, and can affect nothing, how can it count for anything?

There is no adjudication of which we are aware that supports the view that, in the absence of a saving statute, the filing of a petition interrupts limitation where the court was without jurisdiction of the cause of action alleged. In 25 Gyc. p. 1299, there is a general text to the effect that a want of jurisdiction in the court in which the action is brought does not operate to prevent the interruption of limitation. But this is a loose and misleading statement. The cases cited in support of it are from the Georgia and Louisiana courts. We have not deemed it necessary to review all of them, but an examination of the latest case cited from each court reveals that in each instance the decision was rested upon a saving statute. In the Georgia case, for illustration (Atlantic, K. & N. R. Co. v. Wilson, 119 Ga. 781, 47 S. E. 366), the original action was instituted in a ^ourt having jurisdiction of the subject-matter, but not of the person of the .defendant. It was held that in selecting the venue for her original action the plaintiff made a mistake; that the action was not void, the court having jurisdiction of the subject-matter; and that the plaintiff had not been guilty of such laches as to warrant the view that she had done nothing to interrupt limitation, it being added that:

“Section 3786 of the Civil Code [1896] was intended to afford relief from such mistakes, accidents, and errors.”

In the course of the opinion in that case, by Justice Lamar, there appears this significant statement — a clear recognition that, if the original proceeding is a vain one, limitation is not thereby interrupted:

“Unless the case is an absolute nullity, the defective or improper suit may be used to nurse the cause of action into full life in the proper form and forum.”

Each ease cited in the opinion rests upon a like remedial statute.

While believing that the majority of the honorable Court of Civil Appeals were correct in this position, we are convinced that the plaintiff is not barred from recovery on account of limitation, since it is clear to us that his original petition should not be construed as seeking recovery of an amount beyond the jurisdiction of the county court. It appears that twice in the petition he distinctly laid his damages — and his total damages — at $975, once in connection with the alleged injury to the shipment and his consequent expense, and again, as a part of an allegation of the defendants’ indebtedness on account of the injury, his demand for payment, and their refusal. This far it is made plain that the full amount to which he considered himself entitled, and for which he was seeking recovery, was only $975. Nowhere else, except in the prayer, is the amount of recovery dealt with. To repeat the prayer, it is:

“Wherefore plaintiff prays that the defendants be cited to answer this petition, and that on the trial hereof he have judgment for his said damages in the sum of nine hundred and seventy-five dollars, with legal interest thereon, for costs of suit and for general relief.”

Interest was, of course, recoverable in this character of case only as damages (Baker v. Smelser, 88 Tex. 26, 29 S. W. 377, 33 L. R. A. 163); and if it be true that the prayer is'subject necessarily to the construction that recovery of interest upon the $975 was sought as a part of the judgment, as distinct from legal interest upon a judgment for $975, the case would be one where the amount sought to be recovered exceeded the jurisdiction of the court. But is the prayer reasonably subject to only that construction? We think not. It is as readily subject to the construction of a prayer for a judgment for $975, ■ the amount of his alleged damages, with legal interest on the judgment. That is the construction, therefore, which should be applied. Where the essential jurisdictional facts are alleged, before a litigant is, upon this ground, deprived of the right to be heard in the court of his selection, it is but a reasonable requirement that, in an allegation of his petition relied upon by his adversary to defeat the very jurisdiction he is invoking, it shall appear, not doubtfully, but plainly, that the jurisdiction of the court is negatived. In any doubtful case all intendments of the plaintiff’s pleading will be in favor of the jurisdiction. Dwyer v. Bassett, 63 Tex. 274.

In Schulz v. Tessman, 92 Tex. 488, 49 S. W. 1031, it is shown that the plaintiffs’ damages were laid at “the sum of $1,000, with interest thereon at the rate of 6 per cent, per annum.” The prayer, as shown by the record though not distinctly stated in. the opinion, was for a judgment for $1,000, “with interest thereon from the 15th day of August, 1896 (the alleged date of the accrual of the damages), at the rate of 6 per cent, per annum. It thus plainly appeared that the recovery of interest was sought as a part of the damages. It is likewise reasonably evident in Railway Go. v. Fromme, 98 Tex. 459, 84 S. W. 1054, both from the statement of the case and the prayer of the petition, that recovery of the interest was sought as a part of the judgment, and to be included in the amount for which it was prayed judgment be rendered; the prayer being, “and that upon final trial he have judgment for his damages, interest, and costs of suit.” In the case here it cannot be unmistakably affirmed, from the language of the prayer of the petition, that interest was sought as a part of, and to be included within, the amount of the judgment; and, accordingly, the prayer should be so construed as to support the jurisdiction of the court, rather than to defeat it.

We answer the certified question, that the appellee is not barred by limitation from recovery.


text:
    FIRST NAT. BANK OF ASPERMONT v. CONNER et al., Judges of Court of Civil Appeals.
    (No. 2331.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    1. Coubts (§ 247) — Supreme Court— Certification op Questions by Court op Civil Appeals
    Under Act May 9, 1899 (Acts 26th Leg. c. 98; Rev. St. 1911, art. 1623), providing that whenever any of the Courts of Civil Appeals may arrive at an opinion in the decision of any cause in conflict with the opinion rendered by some other Court of Civil Appeals on any question of law, and such court refuses to concur with the opinion so rendered by such other court, it shall be its duty to transmit the. question of law duly certified, together with the record or transcript, to the Supreme Court for adjudication, where there is a clearly defined conflict between the decision of a Court of Civil Appeals and an earlier decision of another Court of Civil Appeals, it is the duty of the court to certify the question to the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §| 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    2. Courts (§ 247) — Supreme Court — Certification op Questions by Court op Civil Appeals.
    A decision of a Court of Civil Appeals, that the execution of a building contractor’s bond by a corporation chartered for the purpose of buying and selling lumber and other building material was an ultra vires act, was in conflict with an earlier decision of another Court of Civil Appeals that the execution of a statutory liquor dealer’s bond by a corporation chartered for the conduct of a wholesale and retail liquor business was not ultra vires, though there was no express or implied agreement by the liquor dealer to purchase goods from the corporation, because the furnishing of aid to the dealer was a means calculated to obtain custom for the corporation and within its implied corporate powers, and hence the court should have certified the question to the Supreme Court.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 487, 749, 751-754, 757, 759, 760, 762-764; Dec. Dig. § 247.]
    Petition by the First National Bank of Aspermont for a writ of mandamus against T. H. Conner and others, Judges of the Court of Civil Appeals for the Second District.
    Writ awarded.
    Theodore Mack, of Ft. Worth, for relator.

      For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

   PHILLIPS, J.

This is a proceeding for a writ of mandamus to require the judges of the honorable Court of Civil Appeals for the Second District to certify for the decision of this court a question determined by them in the case of W. C. Bowman Lumber Co. v. Pierson et al., adversely to the relator, an appellee in the case. 139 S. W. 618.

The jurisdiction of the Court of Civil Appeals was final in the case, it having been appealed from a county court and not being within any of the exceptions of the statute providing that the jurisdiction of the Courts of Civil Appeals shall be final in such cases; and, the motion to certify the question having been duly made upon the ground that the decision was in conflict with that of another Court.of Civil Appeals, it was the duty of the court to certify it, provided there was a clearly defined conflict between the two decisions. Act of May 9, 1899 (Laws of 1899, p. 170); article 1623, R. S. 1911; McCurdy v. Conner, 95 Tex. 246, 66 S. W. 664.

The question determined by the Court of Civil Appeals was that the lumber company, a corporation chartered for the purpose of buying and selling lumber and other building material, was not liable on its undertaking as a surety upon the bond of Robinson, a building contractor, executed in favor of the relator to secure the performance of a building contract, because its act in signing the bond was ultra vires and void. The decision is claimed to be in conflict with the holding of the Court of Civil Appeals for the Fourth District' upon the same question in Munoz v. Brassel, 108 S. W. 417. In the latter case the Houck & Dieter Company, a corporation chartered for the conduct of a wholesale and retail liquor business, signed as surety a statutory liquor dealer’s bond with one Vidal as cosurety. In a suit upon the bond it was discharged in the trial court, but Vidal was cast. Upon his appeal Vidal contended that, unless there was an express or implied agreement on the part of the principal in the bond to purchase goods from the corporation, as an inducement for it to sign the bond in the promotion of its business, its becoming a surety upon the bond was an ultra vires act and void, rendering the bond invalid and unenforceable because of the requirement of the law that it should be signed by two lawful sureties. The court, in its opinion by Chief Justice James, ruled against this contention, expressly holding that the corporation was not without the power to execute the bond, though such an agreement was not shown; that furnishing aid to the principal by signing his bond was a means calculated to obtain custom for the corporation and thus promote its interest, and that its act was accordingly within its implied corporate powers.

For the same reason, if that decision is correct, becoming a surety upon a building contractor’s bond is not violative of the charter powers of a corporation engaged in the sale of building material. It would be deemed, according to such ruling, equally an act promotive of the business of the corporation.

The two decisions are in evident conflict, and the writ of mandamus is, accordingly, awarded.


author: PHILEIPS, J.

text:
    COUGHRAN et al. v. EDMONDSON.
    (No. 2325.)
    (Supreme Court of Texas.
    Jan. 27, 1915.)
    1. Fraudulent Conveyances (§ 181) — Gifts by Insolvent Debtor.
    A pretended gift of a half interest in land by an insolvent debtor was void as to his creditors ; and, where the land was subsequently exchanged for a stock of goods, the donee acquired no interest in the goods on account of liis pretended interest in the land.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 554-559, 561-507; Dec. Dig. § 181.]
    2. Fraudulent Conveyances (§ 87) — Transfer to Creditor in Payment of Debt.
    A creditor of an insolvent debtor may receive property for his debt if not more than reasonably sufficient in value to discharge it; but, where the value of the property materially exceeds the debt, the transaction is fraudulent in law, since its necessary effect is to place the surplus beyond the reach of creditors.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 221-229; Dec. Dig. § 87.]
    3. Fraudulent Conveyances (§ 87) — Transfer to Creditor in Payment of Debt.
    An insolvent debtor was indebted to E. for $200 advanced by him to pay interest upon a lien indebtedness against land owned by the debtor. He negotiated for an exchange of the land for a stock of goods worth $1,000 or $1,200, but, according to E.’s testimony, was unable to complete the trade because R., the owner of the stock of goods, demanded $350 in' addition to the land. E. claimed that the debtor thereupon turned the trade over to him; that he closed the transaction, paying $150, and giving a $200 note signed by himself and the debtor, the debtor also conveying the land. R., however, claimed that, though the bill of sale of the goods was made to E., the trade was negotiated and closed with the debt- or. Held, that the cash paid R. and the note given him, as well as the expense incurred by E. in perfecting the title, etc., was a new debt incurred as a part of the trade, and could not be reckoned as an indebtedness which, as against the debtor’s creditors, it was not competent to discharge by a conveyance of the goods.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 221-229; Dec. Dig. § 87.]
    4. Fraudulent Conveyances (§ 87) — Transfer to Creditor in Payment of Debt.
    The value of the goods being substantially in excess of the indebtedness to E., the transaction was void if its design was, not only to secure E. in the repayment of the indebtedness, but to enable him to obtain the balance of the proceeds realized from the sale of the goods.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 221-229; Dec. Dig. § 87.]
    5. Fraudulent Conveyances (§ 87) — ' Transfer to Creditor in Payment of Debt.
    If it was the intention that E. should sell the stock of goods at retail, repaying himself the amounts due him. and paying over the surplus to the debtor, the transaction was void, since its effect was to remove the debtor’s property beyond the reach of other creditors for an indefinite time.
    [Ed. Note. — For other cases, see Fraudulent Conveyances, Cent. Dig. §§ 221-229; Dec. Dig. § 87.]
    Error to Court of Civil Appeals of Second Supreme Judicial District.
    Action by W. L. Edmondson against G. B. Coughran and another. A judgment for defendants was reversed by the Court of Civil
    Appeals, Second District (138 S. W. 435), and defendants bring error.
    Reversed, and judgment of the'district court affirmed.
    Royall G. Smith, of Colorado, Tex., for plaintiffs in error. Beall & Beall, of Sweet-water, and W. B. Crockett, of Colorado, Tex., for defendant in error.

      For other cases see same topic and section NUMBER in Deo. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILEIPS, J.

The suit was instituted by W. L. Edmondson against G. B. Coughran, sheriff of Mitchell county, and the City National Bank of Colorado, for damages for the conversion of a stock of goods, attached by the sheriff as the property of J. A. Henderson at the suit of the bank against the latter. Edmondson claimed that the goods were his property at the time of the seizure. The defendants contended that the goods belonged to Henderson and were properly subject to the levy, and that the transaction whereby Edmondson was clothed with the apparent title to them was fraudulent and but a device for placing the goods beyond the reach of Henderson’s creditors. A jury trial resulted in a verdict and judgment for the defendants, reversed by the honorable Court of Civil Appeals because of errors, according to its view, in the court’s charge. The writ of error was granted upon the petition of the defendants because the holding of the Court of Civil Appeals was regarded as in conflict with Gallagher v. Goldfrank, 75 Tex. 562, 12 S. W. 964, and other cases.

The stock of goods was originally owned by M. C. Ratliff. Henderson negotiated a trade with Ratliff, according to the latter’s testimony, wherein he agreed to exchange the stock of goods for 240 acres of land in New Mexico, belonging to I-Ienderson, $150 in money, and a note for $200, to be also signed by Edmondson. The trade was thus made, except that the goods, instead of being conveyed to Henderson, were, according to the bill of sale, conveyed to Edmondson. Henderson was then insolvent. At the time of the transaction Edmondson held Henderson’s note for $200 for money advanced the latter to pay interest upon a lien indebtedness against Henderson’s New Mexico land, secured by personal property which realized $135, leaving the principal of the note, $65, though it does not appear from the record whether it had been thus credited at the time of the transaction with Ratliff. There is testimony by Ed-mondson that Henderson stated to him that he would give the latter a half interest in the land in consideration for his advancing the $200, and later o’ffered to deed him the entire tract, but that he declined it, not desiring to assume the existing indebtedness of $200 against the land. Thereupon Henderson gave Edmondson a note for $1,000 secured by a deed of trust lien upon the land, as collateral security for the $200 note; the deed of trust, however, not being recorded. In the negotiation between Henderson and Ratliff, the latter demanded that he be paid as much as $350. This Henderson was unable to pay, stating to Edmondson, according to the testimony of Edmondson, that the trade was off, so far as he was concerned; that he would turn it over to him; and that whatever deal Edmondson could make with Ratliff would he satisfactory to him. According to Edmondson’s statement he then took up the matter with Ratliff and closed the transaction with him, paying, himself, to Ratliff, the $150, and giving him a $200 note, signed also by Henderson, however; Henderson and wife delivering their deed to Ratliff to the New Mexico land. The stock of goods exchanged by Ratliff invoiced about $2,300 at the time of the attachment, and was worth, in hulk, approximately $1,000 or $1,200. According to Ratliff’s testimony while he discussed the terms of the trade over the telephone with Edmondson, the trade with him was negotiated and closed by Henderson, and a written contract embodying the terms upon which it was consummated, as above stated, was entered into between them; and he was not aware, until the end of it and the delivery of the goods, that they were to be conveyed to Edmondson instead of Henderson. It is undisputed that Edmondson furnished the $150 paid to Ratliff, but the result of the transaction in itself was that, for this amount and the delivery of a $200 note signed by Henderson and himself, he got the entire stock of goods worth $1,000 or $1,200, though Henderson’s land constituted necessarily the substantial part of the consideration for them; Henderson being insolvent at the time. There is testimony in the record sufficient to support the conclusion that the understanding between Edmondson and Henderson was that Edmondson should take the stock of goods and with it conduct an ordinary retail business in his own name, selling it out in the usual course, reimburse himself for the indebtedness due him by Henderson, and defray all expenses out of one-half the proceeds, paying any surplus of such half to Henderson, and retaining the other half for himself as representing the half interest in the land claimed to have been given him by Henderson.

At the time of this transaction, Edmondson had no title to any interest in the New Mexico land. Henderson being insolvent, any pretended gift to Edmondson of a half interest in the land was void as to Henderson’s creditors. Edmondson acquired, therefore, no interest in, the goods on account of the transfer of the land to Ratliff as a part of the consideration for them.

A creditor of an insolvent debtor may receive property for his debt if not more than reasonably sufficient in value to discharge it; but, where the value of the property materially exceeds the debt, the transaction is deemed fraudulent in law, since its necessary effect is to place the surplus beyond the reach of creditors.

Edmondson was Henderson’s creditor to the extent of the amount due upon the $200 note representing the amount advanced by the former to pay the interest upon the indebtedness against the land; but, if it be conceded that no part of this note had been paid at the time of 'the acquisition of the stock of goods, it is manifest that the value of the stock ($1,000 or $1,200) was altogether disproportionate to the amount of the debt. The $350, representing the $150 paid by Edmondson in cash to Ratliff and the $200 note given to Ratliff in the trade, as well as the expense incurred by Edmondson in perfecting the title, etc., so that the trade might be made, was a new debt, incurred as a part of the transaction of the conveyance of the goods to Edmondson, and so that he might acquire them,' and could not be reckoned as an indebtedness, which, as against Henderson’s creditors, it was not competent to discharge by a conveyance of the goods. Gallagher v. Goldfrank, 75 Tex. 562, 12 S. W. 964. The value of the goods being admittedly substantially in excess of Henderson’s indebtedness to Edmondson, it was plainly not erroneous for the court to charge that the transaction was void if the jury found that its design was not only to secure Edmondson in the repayment of the indebtedness owing him by Henderson, hut to enable the latter to obtain the balance of the proceeds realized from the sale of the goods. It was as clearly not improper to instruct, as was done in the succeeding paragraph of the charge, that the verdict should be for the defendants, if it were found that it was the intention of Edmondson and Henderson that the former should take the stock and sell it at retail, repaying himself the amounts due him by Henderson and paying over the surplus to the latter. Such a transaction is void, since its effect is to remove the debtor’s property, subject to the claims of other creditors, beyond their reach for an indefinite time. Gallagher v. Goldfrank.

The instructions of the court were in accord with the repeated adjudications of this court. The issues were resolved against the defendant in error by the jury upon evidence which supports the verdict.

The judgment of the Court of Civil Appeals is reversed, and that of the district court is affirmed.


author: PHILLIPS, J. HAWKINS, J.

text:
    ADAMS FISH MARKET v. STERETT, Game, Fish, and Oyster Com’r.
    (No. 2619.)
    (Supreme Court of Texas.
    Feb. 3, 1915.)
    1. Licenses (§ 29) — License Tax — Amount— “Handled.”
    The measure of the license tax provided for by Rev. St. 1911, art. 3989, as amended by Acts 33d Leg. c. 146 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 3989), fixing the tax at $1 for each 1,000 pounds of fish and 1 cent per barrel of oysters “handled” by the dealer, is the quantity of fish and oysters purchased within the state, and in addition the quantity sold within the state of any amount acquired from without it.
    [Ed. Note. — Eor other cases, see Licenses, Cent. Dig. § 63; Dec. Dig. § 29.

    For other definitions, see Words and Phrases, First and Second Series, Handle.]
    2. Commeece (§ 64) — Interstate Commerce — Regulation — License Tax — Construction of Statute.
    To construe Rev. St. 1911, art. 3989, as amended by Acts 33d Leg. c. 146 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 3989), imposing a license tax on fish and oysters “handled,” so as to require that the tax be computed on the “quantity purchased without the state,” merely because of such purchase, would render the statute invalid as imposing a burden on interstate commerce.
    [Ed. Note. — For other cases, see Commerce, Cent. Dig. §§ 104-106; Dec. Dig. § 64.]
    3. Licenses (§ 29) — License Tax — Computation — Refusal of License.
    Where an applicant for a license under Rev. St. 1911, art. 3988, as amended by Acts 33d Leg. c. 146 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 3988), to engage in the fish and oyster business, tenders a tax computed on a' quantity not including fish and oysters purchased without the state and sold within the state, the license is properly refused.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. § 63; Dec. Dig. § 29.]
    4. Licenses (§ 20) — Refusal — Grounds — Nonpayment of Tax.
    Where an applicant for a license under Rev. St. 1911, art. 3987, to 'engage in the fish and oyster business, had engaged in such business for three months prior to her application without paying the monthly tax fixed by article 3989, as amended by Acts 33d Leg. c. 146 (Vernon’s Sayles’ Ann. Civ. St. 1914, § 3989), the license was properly refused, though there was a controversy as to the amount of the tax due and she tendered the amount due according to her erroneous contention.
    [Ed. Note. — For other cases, see Licenses, Cent. Dig. § 55; Dec. Dig. § 20.]
    Hawkins, J., dissenting.
    Mandamus by Mrs. C. P. Adams, doing business under the name of the Adams Fish Market, against W. G. Sterett, Game, Fish, and Oyster Commissioner.
    Mandamus refused.
    Barry Miller and Smith, Robertson & Robertson, all of Dallas, for plaintiff. B. F. Looney, Atty. Gen., and G. B. Smedley, Asst. Atty. Gen., for defendant.

      For other eases see same topic and section NUMBER in Dee. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   PHILLIPS, J.

The mandamus for which the relator prays will be refused, because it is apparent from her petition that she is not clearly entitled to it; but we shall briefly indicate our views, inasmuch as one of the questions involved properly calls for an interpretation of a statute governing the administration of an important department of the state government.

It is to be inferred from the petition and answer that during the months of September, October, and November, 1913, the relator had been engaged in the wholesale fish and oyster business in the city of Dallas, without the license required by article 3987, Rev. St. 1911, or the payment of the tax for such license prescribed by article 39S9. On December 19, 1913, she made application to the respondent for a license — whether for one year beginning September 1, 1913, or for one year beginning December 19, 1913, does not appear — subscribing to and presenting the statutory aflidavit. She accompanied her application with a due tender of $35.36, being an amount equivalent to the statutory tax upon the quantity of fish “purchased by her within the state of Texas from September 1, 1913, to November 30, 1913, inclusive,” namely, $1 for each 1,000 pounds upon 35,364 pounds of fish; no oysters having been purchased, as she alleges. The answer of the respondent is that, during the period of time stated, the relator had “handled” in the conduct of her business within the state, 84,484 pounds of fish and 994 barrels of oysters, upon which she was due a tax, according to the statutory rate, of $94.42; and that, because of her failure to pay the proper amount of. tax, he had refused to issue the license. There seems to be no controversy between the parties that the quantity of fish representing the difference between that which the respondent claims was “handled” by the relator, and that which she claims was “purchased” by her, during the period named, namely, 49,120 pounds, as well as the 994 barrels of oysters, was purchased by her without the state; and an agreed issue between them is whether the tax may be lawfully computed upon such purchases.

The statute (article 3989, as amended by Laws 1913, c. 146) fixes the tax for the license at “one dollar for each thousand pounds of fish, and one cent per barrel of oysters, handled by the dealer,” payable monthly. The term “handled,” as made use of in the statute, cannot, by mere construction, be given the restricted meaning for which the relator contends. Fish and oysters sold within the state, though originally purchased out of it, so as to constitute, in their purchase, articles of interstate commerce, would certainly be considered as commodities “handled” within the lawful intendment of the statute. The term very plainly has reference to the quantity of fish and oysters dealt in, or passing through the hands of the dealer, in the ordinary conduct of his business; and those sold within the state are as equally “handled” within the state as those purchased.

In our opinion the tax may not be lawfully computed upon “the quantity purchased without the state.” It is, of course, true that articles of merchandise brought from another state, at rest within the state and enjoying the protection of its laws, are taxable, like other property there situated. American Steel & Wire Co. v. Speed, 192 U. S. 500, 24 Sup. Ct. 365, 48 L. Ed. 538. But a tax computed upon the quantity of merchandise purchased from dealers in another state to be transported within the state amounts, practically, to a tax upon the purchase — that which essentially gives the transaction its character as commerce — since, in such case, the amount of the purchase becomes the measure of the tax, and would therefore constitute a burden upon interstate commerce, which it is without me power of the state to impose. G., H. & S. A. Ry. Co. v. State of Texas, 210 U. S. 217, 28 Sup. Ct. 638, 52 L.Ed. 1031.

The proper measure of the tax according to the statute is, in our opinion, the quantity of fish and oysters purchased within the state, and, in addition the quantity sold within the state of any amount acquired from without it. In this way the quantity “handled” within the state may be fairly computed, and is made the subject of the tax laid by the statute.

It not being shown by the relator that she had not' sold any of the fish and oysters purchased by her without the state, the amount of the tax, computed only upon the purchases within the state, was insufficient, and upon this ground alone the respondent would have been justified in refusing to issue the license.

She was not entitled to the license without the payment of the proper tax due for the period named. It is plain that she had pursued the business throughout this period. The statute very clearly contemplates the payment of the tax for each month the business is pursued. The relator does not contend to the contrary. The issue she makes is with respect to the proper amount of the tax. It would defeat the manifest purpose of the law, and contravene its terms, in our judgment, if a dealer, having pursued the business from September to December, should wait until, say, December 19th, to apply for the license, and then, while in clear default for the three preceding months, be held entitled to a license for the year following. By this method payment of the tax could be altogether avoided by refusing to apply for the license.

The mandamus is refused, but noon payment of the proper amount, as we have indicated, and making the deposit provided by article 3990, the license should be issued.

HAWKINS, J.

(dissenting). Relator, Mrs. C. P. Adams, a feme sole, doing business under the name of “Adams Pish Market,” filed here a petition for a writ of mandamus to compel respondent, W. G. Sterett, game, fish, and oyster commissioner of the state of Texas, to issue to her a wholesale dealer’s license to sell fish and oysters. Respondent answered.

Prom the pleadings it appears that during the period of time beginning with September 1, 1913, and ending -with November 30, 1913, relator was engaged, and is yet engaged, in the business of a wholesale dealer in fish and oysters in the city of Dallas, Tex., without license. Between said dates she “handled,” in the state of Texas, 84,484 pounds of fish and 994 barrels, or 1,998 gallons, of oysters; 35,364 pounds of said fish and no oysters having been purchased by relator within the state of Texas during said period, and all the residue of said fish and all of said oysters having been purchased by her outside of this state during said period. Some lack of certainty as to the source of supply of the oysters and of some of the fish is disclosed by the pleadings. Relator alleges, substantially, that all fish and oysters ■which she had purchased outside of this state were purchased “in other and different states of the United States of America.” The affidavit which is embodied in respondent’s answer is, substantially, to the effect that he demanded of relator, as a condition precedent to issuance of sucli license, payment of a tax under said statute, measured in amount by “the total amount of fish and oysters handled” by relator during said three months, and that she tendered “only the amount of taxes due on the fish and oysters purchased in the state of Texas” during said period. And it was argued at the bar, upon behalf of respondent, that some of the fish so purchased outside of the state of Texas might have been taken and sold to relator directly from the high seas.

Any issue between the parties as to a material fact -would be fatal to our jurisdiction herein. However, under my view of this case, at least in its present attitude, it is wholly immaterial whether all or any of the oysters and fish purchased by relator outside of this state were purchased in a sister state, or in some foreign country, or were taken and sold to relator directly from the high seas.

On December 19, 19Í3, “Adams Fish Market, per I-I. Schwarz, Manager,” made and duly presented to one of respondent’s deputies a written application for a wholesale dealer’s license to sell fish and oysters. Relator’s petition alleges that:

“Said application for said license was then and there in strict compliance with the provisions of article 3988 of the Revised Civil Statutes of the State of Texas of 1911, and in strict compliance with all other provisions of law applicable thereto.”

And respondent’s answer admits that said application was in proper form and was presented to said deputy.

Along with said application for such license, relator,' through said manager, tendered to said deputy the sum of $35.36, only, as the amount of taxes owing by said relator under said statute, upon the business handled by her during said three months, claiming that the amount of the prescribed tax should be calculated upon only the number of pounds of fish, and the number of barrels of oysters, if any, handled by her as such wholesale dealer, which had been purchased by her within the state of Texas, during said period of time. Respondent declined to accept the amount so tendered, and refused to issue such license, basing such declination and refusal upon the sole ground that the amount of taxes owing by relator, under said statute, for said three months, should be calculated upon the number of pounds of fish and the number of barrels of oysters handled by relator in the state of Texas during said period of time, including that which was purchased by her without, as well as that which was purchased by her within, this state. Respondent admits that upon the basis of calculation of the amount of said tax so contended for by relator the sum so tendered by her was sufficient. Relator likewise concedes that upon the basis of calculation of taxes so contended for by respondent the proper amount of her taxes aforesaid, for said three months, is $94.42.

Both parties have presented the case here, apparently, upon the assumption that payment by relator of the proper amount of all such taxes for said three months should be considered and treated as a condition precedent to issuance of such license. Accordingly, briefs for both parties present widely divergent -views, as hereinabove indicated, concerning the nature of the tax and the proper construction of said statute as to the basis of computation of the amount of such tax; and it is also earnestly urged, on behalf of relator, and as strenuously denied, on behalf of respondent, that:.

“If the correct interpretation of the statutes be that they require the tax or charge for such wholesale dealer’s license to handle fish and oysters to be computed and paid upon a basis of purchase of fish or oysters outside of the state and shipped into the state, then the provisions of such statutes in thus requiring are invalid and utterly void, because:
“(1) They are contrary to section 10 of article 1, clause 2, of the Constitution of the United States, providing as follows: ‘No state shall, without the consent of Congress, lay any impost or duties on imports or exports except what may be absolutely necessary for executing its inspection laws.’
“(2) They are contrary to clause 3, § 8, of article 1, of the Constitution of the United States, providing as follows: ‘Congress shall have the power * * * to regulate commerce with foreign nations, and among the several states and with the Indian tribes.’
“(3) They are contrary to subdivision 18, § 8, art. 1, of the Constitution of the United States, which provides as follows: ‘Congress shall have the power to make all laws which shall be necessary and proper for carrying into execution the foregoing .powers- and all other powers vested by this Constitution in the government of the United States, and any department or officer thereof.’
“(4) They are contrary to section 2 of article 6 9f the Constitution of the United States, which provides as follows: ‘The Constitution and the laws of the United States which shall be made in pursuance thereof, and all treaties made or which shall be made under the authority of the United States, shall be the supreme law of the land, and the judges in every state shall be bound thereby, anything in the Constitution or laws of any state notwithstanding.’
“(5) They are contrary to the fourteenth amendment to the Constitution of the United States.”

Under the above-mentioned assumption it is clear that if the statute which provides for such tax and such license be constitutional and valid, and the amount so tendered was the proper amount thereunder, the license should have been issued, and relator’s petition for mandamus should be granted; but, if said statute, or even those portions thereof which relate to such license, be unconstitutional, or if the amount so tendered by relator be less than that required by law, the license was properly refused, and the writ of mandamus should be denied.

But I regard that entire assumption as plainly erroneous because it is not justified by said statute.

Whatever questions relative to the nature or to the proper basis for computation of the amount of this prescribed tax, or to the constitutionality of said statute as dependent upon the construction to be given it, at the proper time, in the matter of computation of such tax, may really and properly arise, hereafter, between these parties, or between the relator and the state of Texas, in some other action, it is obvious, I think, that none of those questions is now before us in such manner or form as to either require or justify a decision thereon in an action to compel issuance of such license.

Relator further contends:

“The provisions of. the statutes involved, requiring a license, are unconstitutional and void in that they require that the applicant for license shall be a citizen of the United States, and such requirement is contrary to that part of section 1 of article 14 of the amendments to the Constitution of the United States, reading as follows: ‘Nor shall any state deprive any person of life, liberty or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.’ ”

The reference is to that portion of said statute which authorizes the respondent to require that the application shall aver that the applicant “is a citizen of the United States.” R. S. 1911, art. 3988.

Relator has not alleged that she is an alien, and there is in the entire record no averment that she is not a citizen of the United States within the meaning of said article 3988. A feme sole is included within its terms. State v. County Court, 90 Mo. 593, 2 S. W. 788.

Consequently, the suggested discrimination is not shown to affect relator, unless, as to all persons, it vitiates the entire statute, or, as relator urges, at least so much thereof as relates to a license to engage in the business of wholesale dealer in fish or oysters. An examination „of said statutes, as well as of former laws of which said statutes are amendments, forces the conclusion that the aforesaid current statutory provisions relating to such license are merely incidental to the general purpose of the Legislature, which was to protect the game, and the fish and oyster industry, of this state, and that the' other provisions of that statute would have been enacted for the accomplishment of that general and salutary purpose even had the Legislature known that said provisions relating to such license would be held invalid, and that, even had the Legislature known that the provision complained of by relator, which seeks to restrict issuance of such license to only those who arq citizens of the United States, would be held invalid, it would, nevertheless, have enacted the aforesaid other current provisions concerning such license. If, and when, the effect of said article S988 upon the rights of an alien shall he directly drawn in issue before us by one shown to be an alien, it will become proper and necessary for this court to decide that point.

However, even were relator shown, in this action, to be an alien, and were this court to herein .hold said discriminatory feature of said article 3988 unconstitutional (a point which is not now decided), this court should not, for that reason, hold all or any other portion of said statute inoperative, as to her, but, unless their provisions were found to be subject to some other constitutional objection, should simply extend their privileges and burdens to such alien.

Moreover, the only application for license upon which relator’s right to the relief prayed for herein is claimed to rest is the application which was signed, sworn to, and filed by her manager, which distinctly states that “he is a citizen of the United States.” Respondent, who is primarily charged with the duty of construing and enforcing said statute, treats said application as that of relator, and as being substantially in the form required by law, and I so treat it.

Consequently, I think relator’s last-mentioned contention should be overruled.

The real issues in this case are limited to those, if any, which actually arise, upon the facts before us, under the provisions of the general laws of this state of the year 1909 (1st Extra Sess. c. 23), and of years prior thereto, relating to the protection of the game, and to the protection of the fish and oyster industry, of this state, and to the duties and powers of the game, fish, and oyster commissioner, etc., as amended in 1913 (chapter 146; Vernon’s Sayles’ Ann. Civ. St. 1914, §§ 3987-3990, 4000); such amendments having taken effect prior to September 1, 1913.

Among those provisions are these:

“Art. 3987. Eor the better protection of the fish and. oyster industry, any person, firm, or corporation engaged in or who may engage in the business of wholesale dealer or dealers in fish or oysters shall on or before the first day of September of each year secure from the game, fish, and oyster commissioner, or one of his deputies, a license granting such person, firm or corporation permission to engage 'in said occupation. A wholesale dealer in the meaning of this Act is one who is engaged in the fish or oyster business as a dealer supplying the wholesale or retail trade by sales of quantities of fifty pounds or more of fish, or oysters in quantities or lots of five barrels or more, provided, one who has a license under article 3986 and pays the tax of one-fifth of one per cent, per pound on fish caught and sold shall not be considered a wholesale dealer. Provided, that two gallons of shucked oysters shall be considered a barrel of oysters.
“Art. 3988. For the purpose of obtaining a wholesale dealer’s license, the applicant desiring same, shall make written application to the game, fish, and oyster commissioner or one of his deputies in which he, the applicant shall set forth under oath if so required that he is a citizen of the United States and that he does because of the privilege for which he applies for from the state of Texas, agree that all products bought or sold or had for sale by him shall at all times be subject to the inspection of the game, fish and oyster commissioner or any of his deputies, and in said application he shall authorize said commissioner or any of his deputies to enter his place of business or any place where he may have such product stored and inspect same. He shall also agree to keep a correct record of all purchases made by him under this chapter in a book to be furnished by the game, fish and oyster commissioner, and he shall further agree that failure on his part to keep a correct record and comply with all provisions of his application shall be grounds for the forfeiture of his license granted him under the application there aforesaid; and provided, further, that the violation of any of the fish and oyster laws of this state or the violation of any of the rules and regulations of the fish and oyster commissioner of this state, shall be and constitute a forfeiture of said license.
“Art. 3989. The application for a ' wholesale dealer’s license having been duly executed and delivered to the game, fish and oyster commissioner or any of his deputies, together with the fee for same, it shall then be the duty of the game, fish and oyster commissioner or his deputy to pass upon same, and if said application is found to comply with the law and the rules and regulations of the game, fish and oyster commissioner, a license shall be issued to said applicant permitting such applicant to engage in the business set forth in the application, said license to be signed by the game, fish and oyster commissioner, or one of his deputies, stamped with the seal of office and state the name of the licensee, place of business and the kind of license applied for and shall be good for twelve months following the date of issuance, and for such license the applicant shall pay a tax of one dollar, for each one thousand pounds of fish handled by him and a tax of one cent per barrel of oysters handled by him, which tax shall be paid monthly; the tax to be paid on the first of each month which may be due upon the said products handled during the preceding month, as per the record book hereinbefore mentioned. For the failure or refusal of any licensee to pay said tax, the game, fish and oyster commissioner, or his deputy, shall have authority and it shall be his duty to cancel such license.
“Art. 3990. The applicant for any license under this act based upon fish and oysters handled,. shall upon the issuance of such license, deposit with the game, fish and oyster commissioner an amount of money, to be fixed by the said commissioner, sufficient to coyer thei estimated amount of tax that would be due by applicant upon the monthly business of applicant, and against which deposit the tax due may be charged by the commissioner, and said applicant shall make additional deposits in sufficient amounts to at all times maintain a deposit sufficient to cover the estimated tax that may be due by applicant, which additional deposit shall be made upon request of the game, fish and oyster commissioner.”
“Art. 4000. Duties of Commissioner. — It shall be the duty of the game, fish and oyster commissioner, to collect the special tax imposed by this chapter, and enforce its payment, to inspect’ all products so taxed and verify the weights and measures thereof, to collect all license fees, to collect all rents on locations for planting oysters, to examine, or have examined, all streams, lakes, or ponds, when requested so to do, for the purpose of stocking such waters with fish, best suited to such location, and he shall procure and furnish such stock fish from the nearest fishery, and at the cheapest rate possible to parties applying for same.” •

The plain and. unequivocal requirement of the statute is that when the application has been duly executed and delivered to the commissioner or any of his deputies “together with the fee for same,” and has been found to comply with the law and the rules and regulations prescribed by the commissioner, “a license shall be issued to said applicant,” etc. Article 3989.

I find in said statutes nothing which expressly or by reasonable implication requires or authorizes the commissioner, or any of his deputies, to demand, as a condition precedent to the issuance of such license, payment of any previously accrued taxes whatever, or payment of any sum of money, except the “fee” for such license (article 3989); and, in making a demand, in this instance, for payment of any taxes, as such condition precedent, respondent’s deputy evidently, although unintentionally, transcended his statutory powers and authority in the premises. The statute does not contemplate that any such dealer will engage in such business without having first procured such license; and it contemplates, and, indeed, expressly provides, that the “tax” which the applicant (dealer) shall pay “for such license” shall be paid, not at date of issuance of such license, but monthly, thereafter, “the tax to be paid on the first of each month which may be due upon the said products handled during the preceding month,, as per the record book,” etc. Article 3989.

This view of the matter is reinforced and! emphasized by the fact that the same Eegis-' lature, in 1913 (Acts 33d Leg. c. 135), so amended article 917 of our Penal Code as to conform it substantially to the corresponding provisions of Rev. St. arts. 3988 and 3989, in so far as they are material to the inquiry before us, and incorporated therein the following:

“And any person, firm or corporation, or associations of persons, or any officer, agent or employé of any company, corporation or association of persons who shall engage in the business of a wholesale dealer in fish and oysters, or either, without procuring a license to follow said business, or without paying the tax required by this article, shall be guilty of a misdemeanor and upon conviction shall be punished by a fine of not less than one hundred dollars nor more than two hundred dollars, and each day such _ business may be engaged in in violation of this article shall constitute a separate offense; and upon conviction for pursuing said occupation without ’payment of the tax required by law or for any other violation of the game, fish and oyster law, the license of such dealer shall be forfeited.”

We have seen that article 3989 makes it the duty of the applicant to tender, along with the application for such license, “the fee for same.” What is there .meant by “fee” is not satisfactorily clear. There is in article 3986 a provision of the same, sort, relative to the license to the captain or master of a boat engaging in the business of catching or taking any fish, turtle, terrapin, shrimp, or oysters from the waters of the state for market.

Article 3991, relating to applications for locations for planting oysters and making private oyster beds within the public waters of this state, expressly declares that “a fee of ten dollars cash must accompany such application.”

But I have searched both of said statutes of 1913, in vain, for some designation of the amount of the “fee” mentioned in either article 3986 or article 3989, unless the word “fee” is there used to designate the “tax” therein prescribed — a thing which seems hardly probable in view of the specific requirements of article 3990 concerning deposits to be made from time to time, by the wholesale dealer, to cover the estimated monthly amount of the tax prescribed by article 3989. Nor have I found elsewhere in our laws any designation of the amount of the “fee” mentioned in article 3989. I am inclined therefore to the view that said reference to such “fee” is practically meaningless and inoperative. In my opinion failure of relator to tender such “fee” along with her application for license would not justify respondent in withholding such license, and he does not claim that it would. I refer to that matter solely because it was brought to my attention in reviewing said statutes for the purpose of determining whether relator has or has not shown herself entitled to the writ of mandamus.

■From the allegations of relator and the admissions of respondent, as shown in the record before us, I think it should be presumed here that the initial deposit, required by the statute to be made when application for. license is filed, was duly made.

It is clear to my mind that such license may not be issued to date back or to relate back to cover the “handling” of fish or oysters for the preceding three months, or any other antecedent period of time. To assume that it could would seem to me to be wholly unauthorized by said civil and criminal statutes and, indeed, in their very teeth, as they must be construed together. If that assumption were well founded, the respondent or his deputy, by so doing, might grant absolute dispensation to one who has long violated the clear provisions of our Penal Code. I do not understand the majority opinion to hold that the license could be so dated back or so relate back.

My conclusion is that relator’s petition should be granted, and the writ of mandamus should be issued. ■


author: RAINEY, C. J.

text:
    MISSOURI, K. & T. R. CO. OF TEXAS v. MIDDLETON.
    (No. 7245.)
    (Court of Civil Appeals of Texas. Dallas.
    Jan. 23, 1915.)
    1. Carriers (§ 321) — Passenger’s Action eor Injuries — Instructions.
    In an action for injuries to a passenger carried by her station, it was error in the charge to use the language “that * * * the em-ployés in charge of the train failed to announce the station * * * in the coach in which plaintiff’s wife was riding, or that they knew that I. was her destination, or could have known it by the exercise of proper care, and failed to notify her of the arrival of the train at I., and that by reason thereof she was carried by _ her station,” as it was calculated to lead the jury to believe that, if those in charge of the train knew or should have known that I. was the passenger’s station, they owed her the duty to give her special and personal notice of the train’s arrival there, or some sort of notice other than the announcement of the station in the car in which she was traveling.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    2. Carriers (§ 271) — Carriage of Passengers — Announcement of Station.
    The notice required to be given passengers of the arrival of the train at their destination is given when the station is announced in an audible voice in the coach in which the passenger is riding so that it can be heard by those paying attention and possessed of the ordinary sense of hearing.
    [Ed. Note. — Por other cases, see Carriers, Cent. Dig. §§ 1067-1071; Dec. Dig. § 271.]
    3. Trial (§ 253*) — Passenger’s Action for Injuries — Instructions — Conformity to Pleading. ¡ '
    ' In an action for injuries to a passenger carried by the station at I., which was her destination, and carried a short distance by the following station of G., the defendant requested an instruction that, although defendant’s employés negligently failed to notify her of the train’s arrival at I., and by reason thereof she was carried by, yet, if the conductor subsequently gave her an instrument entitling her to be carried on a train of the defendant from G. to I. and requested her to alight at G., and if such action and direction were reasonable and proper and under the circumstances constituted the degree of care required, and if defendant’s employés announced the station at G. in the car in which the passenger was riding in a tone of voice which could have been heard by persons therein having ordinary capacity for hearing, and if the passenger was guilty of negligence in failing to leave the car at G., and if, after the train pulled out from such station, defendant’s em-ployés exercised such care for the passenger and for her comfort and safety as persons of ordinary care would have exercised under the circumstances, to find for defendant. Held, that where the petition alleged that when the train reached I. defendant’s employés failed to announce the arrival of the train at I., and carried the passenger to G., which point they announced, but that the passenger, being a stranger and not knowing the order in which the stations would be reached, did not alight, but remained seated and was carried several hundred yards further and then put off in the rain and mud and compelled to walk back to the depot and carry a grip, thereby sustaining injuries, ,the direction to find for defendant if the facts were as hypothesized justified the refusal of such instruction, as the petition did not predicate negligence alone on the fact that the passenger was caused to leave the train after it had pulled out from the station at G., but also relied on negligence in carrying her by I.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 613-623; Dec. Dig. § 253.]
    4. Carriers (§ 321) — Passenger’s Action for Injuries — Instructions.
    With the exception of the direction to find for defendant if the facts were as hypothesized, such instruction stated correct principles and should have been given.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1247, 1326-1336, 1343; Dec. Dig. § 321.]
    5. Carriers (§ 247) — Ejection of Travelers —Nature of Relation — Degree of Care Required.
    Where a passenger was carried by her destination, if she was subsequently told by the conductor that she had passed her destination and to get off at the next station, but failed to do so, she ceased to be a passenger, and a different degree of care then rested on the defendant, and it had a right to eject her after carrying her several hundred yards beyond the station, if its employés used ordinary care in so doing and had no reason to believe that it would injure her to eject her at that point.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 984-993; Dec. Dig. § 247.]
    Appeal from District Court, Hunt County; A. P. Dohoney, Judge.
    Action by H. C. Middleton against the Missouri, Kansas & Texas Railway Company of Texas. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Chas. C. I-Iuff, of Dallas, and Dinsmore, Mc-Mahan & Dinsmore, of Greenville, for appellant.

      For other eases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep’r Indexes

   RAINEY, C. J.

Appellee sued appellant for personal injuries to his wife, alleging in substance that his wife purchased a ticket at Greenville, Hunt county, to. Itasca, Hill county, Tex.; that when the train reached Itasca the employés failed to announce the arrival of the train at Itasca and carried her on to Grandview, which point they announced, but plaintiff’s wife, being a stranger on that line, did not know which station, Itasca or Grand-view, came first, but was listening to hear the station of Itasca called, and did not alight, but remained seated, and was carried several hundred yards before the train stopped, and she was put off in the rain and mud and compelled to walls back to the depot at Grandview and carry her grip ; that in stepping off the train it was some distance to the ground, and she was caused to be ruptured; that walking back to Grandview through the rain and mud she was caused to be sick — all of which was occasioned by the negligence of the defendant. Defendant answered by general demurrer and general denial. A trial resulted in a verdict and judgment for appellee, and the appellant prosecutes this appeal.

The first assignment presented is:

“The court erred in that part of his general charge to the jury in the second subdivision of the third paragraph of said charge, which is in these words: ‘That on said date the employés in charge of said train failed to announce the station of Itasca in the coach in which plaintiff’s wife was riding, or that they knew that Itasca was her destination, or could have known it by the exercise of proper care, and failed to notify her of the arrival of the train' at Itasca, and that by reason thereof she was carried past her station, etc.’ ”
It is contended that:
“Said part of said charge by reason of its form and construction suggests, and it was calculated to induce the jury to believe, that if defendant’s servants in charge of the train knew or should have known that plaintiff’s wife was a passenger, and that Itasca was her station, they owed her the duty to give her special and personal notice of the arrival of the train at Itasca, or to give her some sort of notice other than the proper announcement in the car of the arrival of the train at Itasca, and therefore places too great a burden upon the defendant.”

We think the criticism of the charge is well taken.

The testimony was conflicting as to whether or not the station of Itasca was announced upon the arrival of the train there. The construction of the charge is such that the jury may have thought from its wording that the mere announcement of the station in the coach appellee was riding in would not be sufficient notice, but that a more specific notice would have to be given the appellee’s 'wife of the arrival of the train at the station of Itasca. It is well settled by the decisions that the notice required to be given passengers of the arrival of the train at their point of destination is for the station to be announced in an audible voice in the coach in which they are riding, so it can be heard by those paying attention and possessed of the ordinary sense of hearing. Railway Co. v. Terry, 27 Tex, Civ. App. 341, 65 S. W. 697; Railway Co. v. McCullough, 33 S. W. 285; Railway Co. v. Miller, 20 Tex. Civ. App. 570, 50 S. W. 168; Railway Co. v. Cohn, 22 Tex. Civ. App. 11, 53 S. W. 698.

The appellant complains of the refusal of the court to give the following charge:

“Although you may believe from the evidence that defendant’s servants negligently failed to notify plaintiff’s wife of the arrival of the train at Itasca, and that by reason of such failure plaintiff’s wife was carried by Itasca, yet if you further believe from the evidence that after the train had left Itasca, and before it had reached Grandview, defendant’s conductor in charge of the train gave to plaintiff’s wife such an instrument as entitled • her to be carried on a train of defendant from Grandview to Itasca, and requested plaintiff’s wife to alight from the train at Grandview; and if you further believe that such action and direction by said conductor, if any, were reasonable and proper, and that such action and direction were at the time and under the circumstances, after defendant’s servants had discovered that plaintiff’s wife had been carried by Itasca, the exercise of that degree of care mentioned in the first paragraph of the court’s charge; and if you further believe from the evidence that defendant’s servants, or servant, announced in the car in which plaintiff’s wife was riding, in a tone of voice which could have been heard by persons in the car having ordinary capacity for hearing the arrival of the train at'Grandview; and if you further believe that plaintiff’s wife was guilty of negligence in failing to leave the 'car at Grandview; and if you further believe from the evidence that defendant’s servants in charge of its said train, after said train pulled out from the station at Grandview, exercised such care, for plaintiff’s wife, and . for her comfort and safety, as persons of ordinary care would have exercised under the circumstances — then and in that event, the plaintiff is not entitled to recover in this suit, and you will return a verdict for the defendant.
‘7n this connection, I instruct you that plaintiff s Wife was bound to exercise, as to leaving said train, at any station, that degree of care only which a person of ordinary care and prudence would exercise under the same or similar circumstances;, and plaintiff’s wife, unless she failed to exercise such ordinary degree of care, would not be guilty of ‘negligence’ as that term is above applied to plaintiff’s wife in connection with the hypothesis of her failure to leave the tram at Grandview.”

There is one clause in this charge that makes it erroneous and justified the trial court in refusing it, and that is, if the jury so believed to find for the defendant. The appellant argues that the pleadings and the evidence restrict plaintiff’s cause of action to such damages as appellee’s wife may have suffered through the negligence of appellant s servants in causing her to leave the train after the train had pulled out from the station at Grandview. We do not accept this view of the pleading and evidence, but think the action is predicated on the issue of defendant’s negligence in carrying plaintiff’s wife beyond Itasca, the place of her destination. Excepting the clause stated, the charge announced correct principles under the evidence and should have been given.

The court’s charge was based on the issue of negligence at the station of Itasca, and applied the same rule as to the degree of care at the point where the plaintiff alighted as was applied at Itasca. In view of the evidence, we think a different rule applies. If the appellant was negligent in not.announcing the arrival of the train at Itasca, which prevented plaintiff’s wife from alighting from the train at that place, and she was not notified that Grandview was the plac-e at which she was to alight, then the same rule would apply as at Itasca; but if after leaving Itasca the conductor notified her that she had passed Itasca and to get off at the station of Grandview, and she failed to do so, then she ceased to be a passenger, and a different degree of care, rested on the appellant. If the conductor gave her the notice as stated, she was no longer a passenger after leaving Grandview, and the appellant’s duty was that of ordinary care toward her, and it had the right to eject her at that place if there was no reason to believe it would injure her, and she would not be entitled to damages that accrued to her by reason of being ejected at that point, if the railway employes used ordinary care in putting her off. Railway Co. v. James, 82 Tex. 806, 18 S. W. 589, 15 L. R. A. 847.

The judgment is reversed, and the cause remanded.