text:
    STEVENS & RUSSELL v. ST. LOUIS SOUTHWESTERN RY. CO.

    (No. 1437.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 11, 1915.
    On Motion for Rehearing, June 17, 1915.)
    1. Carriers <&wkey;lS0 — Interstate Shipments— Stipulations in Bill op Lading — Validity.
    A stipulation in a contract for an interstate shipment of freight that claims for loss, damage, or delay must be made in writing within four months after delivery, or in case of failure to make delivery within four months after a reasonable time for delivery has elapsed, is valid notwithstanding Carmiack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U, S. Comp. St. 1913. § 8592]), making the initial carrier liable for any loss caused by it, or any connecting carrier-, and providing that no contract shall exempt the initial carrier from the liability imposed.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. &wkey;M80.]
    2. Courts <&wkey;97 — Federal Questions — Controlling Decisions.
    The decisions of the federal Supreme Court construing the Inter-state Commerce Act (Act Feb. 4, 1887, c. 104, 24 Stat. 379) are binding on. the state courts.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 329-333; Dec. Dig. <&wkey;97.]

      3. Carriers <§=>180 — Interstate Shipments— Stipulations — 'Validity.
    A stipulation in a contract for an interstate shipment that claims for loss must be made in writing within four months after delivery, or in case of nondelivery within four months after a reasonable time for delivery has elapsed, is not void on the ground that it is without independent consideration.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. <§=>180.]
    4. Carriers <§=5180 — Interstate Shipments —Stipulations—Presentation ' oe Claims —Waiver.
    An interstate shipper, required by a contract of shipment to give notice of any claim for loss within a specified time, gave notice of claim after the expiration of the time. The auditor of the carrier asked for particulars and stated that the records showed a delivery of the freight with billing instructions. The shipper did not comply with the request and did not reply to the auditor. Held not to show a waiver by the carrier of the failure of the shipper to present notice of claim within the time stipulated.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. <§=>180.]
    On Motion for Rehearing.
    5. Carriers <§=>177 — Garríase oe Interstate Freight — Statutes—Construction.
    The effect of the Carmack amendment to the Interstate Commerce Act is not to impose on the initial carrier a liability for its own conduct different from that imposed on it at common law, but to impose on it, in favor of the shipper, a liability to him under the common law incurred by connecting carriers,
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 775-789, 791-803; Dec. Dig. <§=>177.]
    6. Carriers <§=>185 — Carriage oe Freight-Evidence.
    A shipper suing the initial carrier of an interstate shipment must introduce in evidence a regulation of the State Railroad Commission if he desires to rely thereon.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§.835-850; Dee. Dig. <§=>1S5J
    7. Carriers <§=^104 — Carriage oe Freight-Delay in Transportation — Evidence.
    A shipper of cotton telegraphed to a freight agent of the carriel-, before the delivery of the cotton, asking him to trace to destination, and not to stop at any press not running. The agent replied that he would trace the cotton to destination and give best possible service and arrange prompt compression at a designated point. Meld, that the shipper contemplated a delay in transportation because of the necessity to compress the cotton, and the shipper, charging negligent delay in transportation, must show that the delay was not due to delay for purpose of compressing the cotton.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 439 — 147, 459-461; Dee. Dig. <§=104.]
    8. Carriers <§=>104 — Transportation oe Freight — Delay—Evidence.
    Where a carrier was required to notify the consignee of the arrival of the freight and the carrier did not notify the consignee, who failed to apply for and receive the freight, the question of the arrival of the freight at destination in determining the issue of negligent delay was immaterial.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 439-447, 459-161; Dec. Dig. <§=> 104.]
    9. Carriers <§=>105 — Transportation oe Freight — Delay—Damages.
    Where a carrier negligently delayed the transportation of cotton, but during the delay the market price of cotton at destination increased, the delay did not result in any injury to the shipper.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. <§=>105.]
    10. Carriers <§=*105 — Carriage oe Freight-Negligent Delay — Measure oe Damages.
    Where a shipper of cotton for sale was obliged because of the carrier’s delay in transportation to buy other cotton to deliver to the buyers, but the cotton when delivered was worth as much .as or more than the cotton he purchased, he suffered no damages because of the delay.
    . [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 451-458; Dec. Dig. <§=>105.]
    Appeal from District Court, Bowie County; W. T. Armistead, Judge.
    Action by Stevens & Bussell against the St. Louis Southwestern Kailway Company. From a judgment for defendant, plaintiffs appeal.
    Affirmed.
    Crane & Crane and G. M. Smithdeal, all of Dallas, for appellants. Glass, Estes, King & Burford, of Texarkana, for appellee.

       writ of error pending in Supreme Court.

   WILLSON, C. J.

July 2, 1910, appellants delivered to appellee at Stephens, Ark., 475 bales of cotton to be transported over appel-lee’s and connecting lines of railway to New York City. Appellants claimed, and offered evidence tending to prove, that the cotton was in good condition when it was delivered to appellee, and that it was in bad condition from exposure to the weather when it reached its destination. They further claimed, and offered evidence to prove, that their purpose in shipping the cotton to New York was to enable them to comply with .contracts they had made to deliver there in July cotton they had sold, and that appellee had notice of their purpose before and at the time it accepted same for transportation as stated. Appellants further claimed that the cotton was not promptly carried to its destination, but that, on the contrary, the transportation thereof was negligently delayed, so that same did not reach New York in time to be used by them in complying with their said contracts. They claimed that because of such delay they had to buy on the market in New York the cotton needed to fill said contracts, at a loss to them, in the difference between prices they had to pay and the prices at which they had agreed to sell, of $2,000. They further claimed that they had to expend $712.50 in having the cotton so “reconditioned” as to be marketable after it reached its destination, and that they lost $940.58 due to depreciation in the market value of a portion of the cotton because of its damaged condition. They sought a recovery against appellee of the aggregate of the sums mentioned, to wit, $3,653.08. The court instructed the jury to find in appellee’s favor, and on their verdict in accordance with the instruction rendered judgment that appellants take nothing by their suit against appellee.

As stated above, there was testimony tending to show that the cotton was injured toy exposure to the weather after it was delivered to appellee and before it reached New York, and that as a consequence thereof a portion of it was worth less than it otherwise would have been worth, and that appellants incurred expense in reconditioning it they otherwise would not have been subjected to. Clearly, therefore, unless it appeared that appellee, by the terms of the contract covering the shipment, had been relieved of the liability it may have incurred to compensate appellants for damages such testimony tended to show they had suffered, the trial court erred in instructing the jury as stated. That court evidently was of opinion appellee had been so relieved by the failure of appellants to comply with a stipulation in the policy as follows:

“Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of the property, or in case of failure to make delivery then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”

It was shown that all the cotton was delivered in New York before August 20, 1910, and it was shown that appellants did not make any claim on account of the damages they sued for until December 31, 1910. It thus appeared that the stipulation set out above was not complied with. So the question is: Did the failure of appellants to comply with it operate to bar a right in them, if they ever had one, to recover the damages they sued for?

Appellants insist the stipulation was invalid under that part, known as the Carmack amendment, of section 20 of the Interstate Commerce Act, as follows:

“That 'any common carrier, railroad, or transportation company receiving property for transportation from a point in one state to a point in another state shall issue a receipt or bill of lading therefor and shall be liable to the lawful holder thereof for any loss, damage, or injury to such property caused by it or by any common earlier, railroad, or transportation company to which such property may be delivered or over whose line or lines such property may pass, and no contract, receipt, rule, or regulattion shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed.” U. S. Comp. St. 1913, § 8592.

The contrary seems to have been in effect determined in Railway Co. v. Harriman, 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690. In that case it was contended that a stipulation in a contract that no suit should be brought after the lapse of 90 days from the happening of any loss or damage, “any statute or limitation to the.contrary notwithstanding,” was void. The trial court and Court of Civil Appeals sustained the contention. The Supreme Court overruled it, and, after saying that “the liability sought to he enforced is the ‘liability’ of an interstate carrier for loss or damage under an interstate contract of shipment declared by the Carmack amendment of the Hepburn Act of June 29, 1906,” and that “the validity of any stipulation in such a contract which involves the construction of the statute, and the validity of a limitation upon the liability thereby imposed, is a federal question to be determined under the general common law, and, as such, is withdrawn from the field of state law or legislation,” declared that:

“The liability imposed by the statute is the liability imposed by the common law upon a common carrier, and may be limited or qualified by special contract with the shipper, provided the limitation or qualification be just and reasonable, and does not exempt from loss or responsibility due to negligence.”

This court is bound by the construction given by that court to the statute referred to. We see no reason why iif the stipulation in question in that case should be held to be valid, notwithstanding the statute, the one in question here should not be. It was expressly held by that court, in Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556, that a stipulation similar to the one here was valid under the common law. In that case the court said:

“It may be remarked, in the first place, that the stipulation is not a conventional limitation of the right of the carrier’s employer to sue. He is left at liberty to sue at any time within the period fixed by the statute of limitations. He is only required to make his claim within 90 days, in season to enable the carrier to ascertain whiat the facts are, and, having made his claim, he may delay his suit. It may also be remarked that the contract is not a stipulation for exemption from responsibility for the defendants’ negligence, or for that of their servants. It is freely conceded that, had it been such, it would have been against the policy of the law, and inoperative. * * * A common carrier is always responsible for his negligence, no matter what his stipulations may be. But an agreement that, in case of failure by the carrier to deliver the goods, a claim shall be made by the bailor, or by the consignee, within a specified period, if that period be a reasonable one, is altogether of a different character. It contravenes no public policy. It excuses no negligence. It is perfectly consistent with holding the carrier to the fullest measure of good faith, of diligence, and of capacity, which the strictest rules of the common law ever required.”

The contention made that it appeared that the stipulation was void because it was without consideration cannot be sustained. Cau v. T. & P. Ry. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053; 5 A. & E. Enc. Law, pp. 300, 320, 321.

It is believed the evidence did not make an issue as to whether appellee had waived the failure of appellants to comply with the stipulation or not. The only testimony we have been able to find in the record which could with any reason be said to have been relevant to such an issue was the letter of appellee’s auditor to appellants, dated January 21, 1011, as follows:

“Please refer to • your claim of December 31, 1910, for $3,S6S.66, alleged damages in con-neetion with a shipment of 475 bales of cotton from Stephens, Ark., to New York, N. Y., and let me have particulars as to in what manner this company violated its contract. I have before me a certified copy of the contract, which consigns this freight to the order of Stevens & Russell, New York, N. Y., notify Herklotz, Corn ►& Co., % Warehouse Independent Stores New York City, N. Y. Our records show that the cotton in question was delivered. to our connections with these billing instructions.”

It was not shown that appellants complied, with the auditor’s request, did anything toward complying with it, or replied at all to his letter to them.

It has been held that a stipulation like the one in question here has no application to “a claim for damages occasioned by a fall in price on account of the carrier’s delay in delivering, as the damages contemplated by the contract are those resulting to the goods through injury or loss in transportation.” Notwithstanding this rule, we are of opinion the trial court did not err when he instructed the jury as stated, because the testimony, as we understand it, did not authorize a finding that the shipment was negligently delayed. As appellants contemplated it would be at the time they entered into the contract, the cotton was carried from Stephens to Pine Bluff, where it was delivered to a compress company to be compressed. The time reasonably necessary to consume to compress it was not shown. Nor -was it shown when the cotton was redelivered to appellee by the compress company. Nor was it shown what would have been a reasonable time within which to transport the cotton from Stephens to New York, either allowing or not allowing for delay necessary to have it compressed en route as contemplated by appellants. It was shown that all except 38 bales of the cotton was receipted for and unloaded at New York between July 20th and July 30th, and that the 38 bales was receipted for and unloaded there August 19th; but the time when the cotton, or any of it, reached New York, was not shown.

The judgment is affirmed.

On Motion for Rehearing.

Renewing their contention that the provision in the contract covering the shipment requiring them within four months after the delivery of the cotton to present to the carrier in writing their claim for “loss, damage or delay” was void by force of the Carmack amendment, appellants say:

“It was very plainly held, we think, in the Harriman Case, the liability imposed upon the carrier by the Carmack amendment to the Hepburn act is the liability imposed by the common law upon a common carrier. The Carmack amendment provides that this liability shall not be limited by contract. If to give effect to the stipulation in the bill of lading before us would be to permit the carrier to limit its common-law liability for negligence, the stipulation ought not to be given effect, because to give it effect would be to repeal the Carmack amendment.”

The argument indicates, we think, that appellants misapprehend the purpose and effect of the Carmack amendment and the effect of decisions of the federal courts construing it. The liability imposed by the amendment upon the initial carrier was liability “for any loss, damage or injury” to property received by it for carriage caused by its connecting carriers. In other words, the purpose and effect of the amendment was, not to impose upon the initial carrier a liability for its own conduct different from or greater than that imposed upon it by the common law, but to impose upon it in favor of the shipper the liability to him under the common law incurred by its connecting carriers. Therefore what was said by the federal Supreme Court in Southern Express Co. v. Caldwell, cited in the opinion, is as applicable to this case, notwithstanding the Carmack amendment, as it would be had that amendment never been enacted.

Appellants vigorously insist that we erred in holding (because the time necessarily consumed in having the cotton compressed at Pine Bluff, and the time when it reached New York, was not shown) that the testimony did not authorize a finding that the shipment was negligently delayed. In support of the contention it is argued:

1. That “the law in Texas is that a railroad cannot leave cotton at a compress longer than five days.”

Appellants do not cite us to, and we have not been able to find, any such a law. They probably had in mind a regulation of the Railroad Commission of Texas. State v. Railway Co., 31 Tex. Civ. App. 219, 71 S. W. 994. If they did, and thought it applicable to an interstate shipment originating in the state of Arkansas, as the one in question was, as a basis for the contention made here they should have offered the regulation as evidence.

2. That the compress company was not their agent, but appellee’s, and therefore that it did not devolve on them to show the time reasonably necessary to be consumed in compressing the cotton.

What was said in the opinion with reference to this phase of the ease was based upon a telegram sent by appellants to appellee’s freight agent at Little Rock, before the cotton was delivered to it at Stephens, as follows:

“Shipping 475 bales cotton from Stephens, Ark., to New York to deliver on July. Will you wire trace to destination? Don’t stop at any press not running. Must reach New York fifteenth.”

And a reply as follows:

“Will trace Stephens to New York cotton and give best possible service and arrange prompt compression at Pine Bluff, which press will understand necessity for quick sendee.”

We thought the telegram indicated an understanding between the parties that the cotton was to be compressed'at Pine Bluff, and therefore that appellants should be held to have contemplated and authorized the delay in the transportation thereof necessary to compress it. We thought, and think, it devolved on appellants, in establishing their charge of negligence on the part of appellee, to show that the delay in the transportation of the cotton to its destination was not due to delay they had authorized for the purpose of compressing the cotton.

3. That it was appellee’s duty not only to transport the cotton to its destination, but to deliver it to the consignees there within a reasonable time; and, the time when the cotton was delivered to the consignees being shown, that it therefore was of no importance that the testimony did not show when it was that the cotton reached its destination.

In several states it is held that the carrier has discharged its duty as such when it has transported the goods to the place they were destined to, that it is the duty of the consignee to be there to receive them, and that the liability of the carrier after so transporting them, even without notice to the consignee of the arrival of the goods, is that of a warehouseman only. 2 Hutch, on Carriers, §§ 702 and 711. In New York, however, the rule is otherwise. 2 Hutch, on Carriers, § 708. There the carrier is charged with the duty of notifying the consignee of the arrival of the goods. We are of opinion therefore that appellants’ contention, that in the absence of proof by appellee that the consignees, having been notified by it of the arrival of the cotton at its destination, there-afterward neglected to apply for and receive same, it was of no importance that the testimony did not show the time when the cotton reached New York, should be sustained. But if sustaining it required us to hold that the testimony was sufficient to show a negligent delay in the transportation of the cotton, we nevertheless would overrule the motion, because it does not appear from the record before us that the delay resulted in any injury to appellants. On the contrary, the testimony indicates that the cotton was worth more on the market in New York when it reached that place than it would have been worth had it reached there at the time appellants contend it should have been delivered to their consignees there.

Appellant Stevens testified:

“In July and August, 1910, there was a heavy advance in the cotton market. In the latter part of June it was selling at around 152 5/100 cents per pound, .and the latter part of July it was selling at about 16 cents per pound.”

Tire theory upon which appellants sought a recovery because of the delay complained of was that they had sold a part (what part not shown) of the cotton at approximately 15% cents per pound, to be delivered in July, and to comply with their contracts had been compelled because of the delay to buy other cotton to deliver to the purchasers in lieu of it at approximately 15°<¡/:ioo cents per pound. It is obvious, we think, that they were not entitled to recover on such a theory without, showing that the cotton in question was worth less on the market when it reached New York than the price they had to pay for cotton to use in its stead in complying with their contracts. If the cotton they had shipped to New York was worth on the market when it was delivered to their consignees there as much or more than the cotton they purchased to enable them to conrply with their contracts, they suffered no loss because of the delay complained of.

The motion is overruled.
      <&wkey;Por other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

      <©=>Eor other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    ST. LOUIS SOUTHWESTERN RY. CO. OF TEXAS v. OVERTON.
    (No. 1419.)
    (Court of Civil Appeals of Texas. Texarkana.
    June 3, 1915.
    Rehearing Denied June 10, 1915.)
    1. Cakrieks <&wkey;180 — Carriage oe Interstate Freight — Bill oe Lading — Validity.
    A stipulation, in a bill of lading for an intei'state shipment of freight, that claims for loss, damage, or delay must be made in writing within four months after delivery, or in case of nondelivery within four months after a reasonable time for delivery has elapsed, is valid notwithstanding the Carmack amendment (Act June 29, 1906, c. 3591, § 7, pars. 11, 12, 34 Stat. 593 [U. S. Comp. St. 1913, § 8592]), though not supported by an independent consideration.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 815-828; Dec. Dig. <&wkey;>180.]
    2. Carriers <&wkey;159 — Carriage oe Freight —Notice oe Loss — Stjeeioiency.
    A bill of lading stipulated that claims for loss must be made in writing within four months after delivery. Freight arrived at destination. The consignee notified the consignor by telegram that the freight arrived in bad order. The consignor immediately went to the place of delivery and notified the claim agent of the terminal carrier that he would file a claim, but no claim was filed. The yard agent was also notified by an employe of the consignee that a claim for damages to the freight would be filed. A notation made on the expense bill by the agent of the terminal carrier at the point of destination recited that the freight was more or less damaged. Beld, that there was a failure to give notice of a claim for damages and there could be no recovery of damages.
    [Ed. Note.' — For other cases, see Carriers, Cent. Dig. §§ 668-671, 699-703y2, 711-714, 718, 718% ; Dec. Dig. <¿=>159.]
    Appeal from Smith County Court; Jesse F. Odom, Judge.
    Action by J. W. Overton against the St. Louis Southwestern Railway Company of Texas. From a judgment for plaintiff, de^ fendant appeals.
    Reversed and rendered.
    The appeal is from a judgment in favor of appellee (plaintiff below) against appellant for $995 as the value of a car load of tomatoes lost to appellee as the result of negligence on the part of appellant It is before this court on an agreed “statement of the case and facts proven,” as authorized by article 2112, Vernon’s Statutes. In the statement is an admission by appellant as follows:

      “It is admitted by defendant St. Louis Southwestern Railway Company of Texas, that the shipment in question was an interstate one from Bullard, in the state of Texas, to Chicago, in the state of Illinois, under a through bill of lading, and that under the Carmack amendment (Act June 29, 1906, c. 3591, § 7, 34 Stat. 593, U. S. Comp. St. Supp. 1911, p. 1307) the evidence made a case of liability against it for the amount of the judgment rendered, unless it is absolved from liability by the provision in the Bill of lading and shipping contract set out in said special plea.”
    The stipulation in the bill of lading (which was in a form approved by the Interstate Commerce Commission June 27, 1908) referred to was as follows:
    “Claims for loss, damage or delay must be made in writing to the carrier at the point of delivery or at the point of origin within four months after delivery of property, or in case of failure to make delivery, then within four months after a reasonable time for delivery has elapsed. Unless claims are so made the carrier shall not be liable.”
    With reference to the issue made as to w-hether appellee complied with the stipulation or not, the agreed statement contains the following:
    “It was proven upon the trial that said shipment arrived at Chicago, Ill., on the 12th day of June, 1912, and was upon said date delivered to C. F. Love & Co., consignees; that J. W. Overton, plaintiff, resided at Tyler-, Smith county, Tex., on and before said date, and has so resided at said place ever since said date; that the defendant, St. Louis Southwestern Railway Company of Texas, the carrier at the point of origin on said date and ever since then has had a local agent at Bullard, Tex., a station 15 miles distant from said Tyler, Tex., where plaintiff has resided as aforesaid, and that defendant’s general offices are located at said Tyler, Tex., and that no claim was ever made by plaintiff or by any one for him on said defendant, St. Louis Southwestern Railway Company of Texas, as provided in said provision, as aforesaid, until his original petition was filed in this cause on, to wit, the 18th day of March, 1913, unless the facts hereinafter set out constitute such claim.
    “It was further proven on said trial that the Wabash Railroad Company was the carrier at the point of delivery, Chicago, Ill., and that before, at the time of, and ever since said delivery was made to C. F. Love & Co. at Chicago, Ill., on the 12th day of June, 1912, said company maintained a station and had a local agent at said place, and that its general offices were also located at said place, and that no claim, as provided in said bill of lading or shipping contract, has ever been made upon said delivering carrier, unless the facts which will hereafter be set out constitute such claim.
    “It was further proven that, upon the arrival and receipt of said shipment by C. F. Love & Co. at destination, they notified plaintiff Cverton by wire that same had reached Chicago in bad order, and that he immediately went to said place.
    “Plaintiff’s testimony upon the subject of filing claim for damages which is uncontroverted is as follows: In answer to direct interrogatory 5, he testified: T did not file a written claim with the Wabash Railroad for damages to this car of tomatoes, but I did notify the claim agent of the Wabash Railroad that I would file a claim and requested him to copy the records of the Wabash road as to the condition of the tomatoes when they arrived in Chicago, on expense bill, and gave him my reason for doing so. The yard agent was also notified by Mr. Gould, an employs of C. F. Love & Co., that a claim for damages to this car of tomatoes would be filed. This was done in my presence.’
    “In answer to cross-interrogatory 6, he testified : T have never filed any written claim for damages to this car of tomatoes with the St. Louis Southwestern Railway Company of Texas, or the Wabash Railway, except as above stated by me with the claim agent and yard agent of the Wabash Railway, in answer to direct interrogatory 5. I have never filed a written claim for damages to this car of tomatoes except as above stated. I don’t know what my attorneys have done about filing said claim. I turned the claim over to them before leaving Chicago.’
    “The notation made on the expense bill by the agent of the Wabash Railroad Company at Chicago, is as follows: ‘Delivered 1,097 crates. Crates more or less damaged and broken. H. Euke.’
    “It was further proven upon the trial that the freight charge for the shipment was the usual freight rate for like shipments from the point of origin to destination, and that it was not based upon valuation.”
    Marsh & Mcllwaine, of Tyler, and E. B. Perkins and D. Upthegrove, both of Dallas, for appellant. Price & Beaird and Fitzgerald, Butler & Bulloch, all of Tyler, for ap-pellee.
   WILLSON, C. J.

(after stating the facts as above).

Appellant insists that the stipulation in the bill of lading requiring appellee within four months after the tomatoes were delivered in Chicago to make claim in writing to it or to the delivering carrier for the loss he sustained was just and reasonable, and therefore valid; that it conclusively appeared that appellee did not comply with the stipulation; and it further insists that the trial court therefore erred when he refused to give its requested special charge instructing the jury to find in its favor. Appellee, on the other hand, insists that the stipulation was not binding on him, because it operated as limitation of appellant’s liability to him and appeared to be without a consideration to support it; and, further, that, if it was binding upon him, it appeared that he had sufficiently complied with it.

We are of opinion appellee’s contentions should be overruled and appellant’s sustained.

In Stevens & Russell v. St. Louis S. W. Ry. Co., 178 S. W. 810, not yet officially reported, the contract being one for an interstate shipment, this court held a stipulation like the one in question here to be valid, though not supported by a consideration independent of the one on which the contract as a whole rested. The holding was based on rulings made by the federal Supreme Court in M., K. & T. Ry. Co. v. Harriman Bros., 227 U. S. 657, 33 Sup. Ct. 397, 57 L. Ed. 690; Southern Express Co. v. Caldwell, 21 Wall. 264, 22 L. Ed. 556; and Cau v. T. & P. Ry. Co., 194 U. S. 427, 24 Sup. Ct. 663, 48 L. Ed. 1053 — determining (as do other cases which might be cited) that the validity of a stipulation in a contract covering an interstate shipment must be tested by the common law as interpreted by the federal courts, and, further, that a stipulation lite the one in question here, though not supported by a special consideration, is valid if not unreasonable when considered with reference to the facts of a given case. There is nothing in the facts of the case now before us suggesting a reason why the stipulation should not b4 treated as reasonable.

Appellee’s insistence that the notation made toy the agent of the delivering carrier on the expense bill at his instance, “was in effect a notice in writing” in compliance with the stipulation, is not believed to be tenable. Even if it should be said, and we think it should not be, that the agent acted for appellee, and not for the carrier, in making the notation, it was not such notice to the carrier as the stipulation entitled it to. Nor was the notice given by appellee to the delivering carrier, nor that given by the agent of the consignees, that a claim for damages to the tomatoes “would be filed,” a compliance with the requirement of the stipulation. Kidwell v. Oregon Short Line Ry. Co., 208 Fed. 1, 125 C. C. A. 313; The Queen of the Pacific, 180 U. S. 49, 21 Sup. Ct. 278, 45 L. Ed. 419; Clegg v. St. Louis & S. F. Ry. Co., 203 Fed. 971, 122 C. C. A. 273. In the Kidwell Case, the court said, with reference to a provision in the contract that “claims for loss, damage or detention” should be presented by the shipper to the carrier within ton days from the date of the unloading of certain live stock and before they were mingled with other stock:

“Nor is it a compliance (with, the provision) to inform the agent at the place of destination that there will be a claim against the company for damages. To impart the information that a claim will be presented is not to present ‘a claim for loss, damage, or detention.’ It does not inform the carrier of the nature, extent, amount, or cause of damage. It gives no definite statement of facts upon which an investigation may be had, or which shows that an investigation is required.”

The judgment of the court below will be reversed, and the judgment will be here rendered that appellee take nothing by his suit against appellant.
      ©u^Eor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HODGES, J.

text:
    TRAVELERS’ INS. CO. v. HARRIS.

    (No. 1432.)
    (Court of Civil Appeals of Texas. Texarkana.
    May 28, 1915.
    Rehearing Denied June 10, 1915.)
    1.Insurance <&wkey;04G — Accident Insurance —Defenses—Burden oe Proof.
    Where an accident policy provided that it should not cover certain injuries, the insurer has, where plaintiff’s pleading and proof did not show that an injury resulted from an excepted cause, the burden of proving that the accident came' within the exceptions.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1645-1668; Dec. Dig. <§= 646.]
    2. Insurance <&wkey;665 — Accident Policies— Actions — Evidence.
    In an action on an accident policy, evidence held not to show that insured was killed while attempting to enter a moving train, injuries from which cause were excepted.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1555, 1707-1728; Dec. Dig. &wkey; 665.]
    3. Insurance <&wkey;451 — Accident Policies— Construction.
    Where an accident policy excepted injuries happening while on a railway grade or roadbed, the policy, which applied while insured was riding on trains, does not except accidents resulting in injuries while insured was necessarily on a railway roadbed to enter a train, but only where insured voluntarily, without cause, entered such place of danger.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1171, 1172; Dec. Dig. <&wkey;>451.]
    4. Insurance <&wkey;451 — Accident Policies— ' Defenses.
    Insured, who was attempting to board a train about to depart, was on the opposite side from the station, and tried to attract the attention of the porter and get him to open the vestibule door. In some way insured was thrown under the train and killed. The policy excepted accidents resulting from trying to enter a moving conveyance or happening while on a railway roadbed. Held, that insured was not unnecessarily on the roadbed, within the policy.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 1171, 1172; Dec. Dig. &wkey;451.]
    5. Appeal and Error <&wkey;10¡62 — Review — Harmless Error.
    The submission of an issue of defense not raised by the evidence is harmless to defendant.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4212-4218; Dec. Dig. <&wkey;> 1062.]
    6. Insurance <&wkey;461 — Accident Policies— Defenses.
    Where an accident policy excepted injuries resulting from voluntary exposure to unnecessary danger or from an attempt to enter a moving train, recovery cannot be denied on the ground of exposure to unnecessary danger, unless insured, who was killed by a train, knew the danger of attempting to attract the attention of the porter and get him to open the vestibule so insured could enter.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ USO, 1181; Dec. Dig. &wkey;461.]
    7. Insurance <&wkey;147 — Contracts — Attorney’s Fee.
    Though a contract of accident insurance was made in a foreign state, the statute of the forum providing for the recovery of damages and attorney’s fees governs an action thereon.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. § 293; Dec. Dig. <&wkey;>147.]
    Error from District Court, Gregg County; W. C. Buford, Judge.
    Action, by Sallie Lou Harris against the Travelers’ Insurance Company. There was a judgment for plaintiff, and defendant brings error.
    Affirmed.
    Thompson, Knight, Baker & Harris and Geo. S. Wright, all of Dallas, and McCord & Campbell, of Longview, for plaintiff in error. Lacy & Bramlotte and Xoung & Stincheomb, all of Longview, for defendant in error.

       Writ of error pending in Supreme Court.

   HODGES, J.

On December 9, 1913, the defendant in error, Sallie Lou Harris, filed this suit in the court below against the plaintiff in error, to recover the sum of $15,940. The action was upon an accident policy theretofore issued by the plaintiff in error to her husband, Geo. V. Harris, in which the defendant in error was named as the benefi‘ciary. It was alleged that Harris died July 9, 1912, as the result of injuries inflicted by a railroad train in the city of Longview, Tex. The plaintiff in error answered by general demurrer and special exceptions to the claim for damages and attorney’s fees, and specifically denied each of the allegations of the policy, except such as were expressly admitted. In its answer the plaintiff in error claimed that, at the time Harris was injured, he was attempting to board a moving train using steam as a motive power, and was injured while at a place not intended for passengers; that the injury was due to a voluntary exposure to unnecessary danger, from voluntary overexertion; and that the injury was received at a time when Harris was upon the roadbed of a railroad. The provisions of the policy which exempted the plaintiff in error from liability for injuries occurring under the conditions mentioned were specially pleaded. A trial before a jury resulted in a verdict and judgment in favor of the defendant in error for the sum of $6,000 as the sum due upon the policy, $720 as damages, and $1,000 as reasonable attorney’s fees.

The group of assigned errors first presented complains of the refusal of the court to give peremptory instructions in favor of the plaintiff in error. There appears to be practically no conflict in the evidence as to the conditions under which the accident occurred. The testimony shows that on the night of July 9, 1912, Geo. V. Harris was at the railroad depot in the city of Longview, Tex., and was expecting to go to Dallas on the Texas & Pacific train, which left shortly after midnight. Previous to the departure of the train (just how long does not appear) he went across the railroad yards to the north side to a restaurant, where he purchased a glass of milk and some other articles. 1-Ie walked out of the restaurant while the train was at the station, and the bell was ringing, indicating that it was about to depart. Harris walked in the direction of the train. He had to travel about 180 feet in order to reach the train. Immediately after the train departed, he was found sitting on the ground, within a few feet of the north rail of the track upon which the train had been standing, with one of his legs cut off between the ankle joint and the knee. He died shortly afterwards from the effects of that injury. Proof of loss was presented, and payment demanded, but refused upon the grounds set out in the plaintiff in error’s answer. The only direct evidence as to what Harris did after leaving the restaurant, and how he happened to be injured, is to be gathered from the statements made by him shortly afterwards to those who came to his assistance. One of the witnesses testified that they carried Harris into the express office, where he stated that he received the injury while trying to attract the attention of the porter, who was standing in the vestibule of the car, in order to get him to open the door so that he (Harris) might get on. He stated that at the time Harris appeared to be very much excited, or badly frightened and confused. He would not converse on any one subject any length of time, and his talk was disconnected. Another witness testified that Harris gave this account of the accident. 1-Ie was running to catch the train, and slipped and fell. He had been over to the restaurant to get something to eat. A third witness testified: That Harris stated he had been over to the hotel, went to the depot, and asked some one about the train, and was told when it would probably be there. That he thought he had time enough to go across the track to a restaurant, and started over there. He got a piece of gum and a glass of milk, and started out of the door, and when he got outside he heard the bell ringing,' and looked up and saw the train fixing to pull out. That he ran over there to try to catch the train, and slipped and fell, and his leg was cut off. That Harris also stated that he could see the porter and some people on the train, and he tried to attract some one’s attention. This witness did not undertake to give Harris’ exact words, but admitted that he could only repeat the substance of what was said. A fourth witness testified that, after going to Harris, some one in the crowd asked how the accident happened, and Harris said he had been over to the junction to get some gum, and as he came out the train was pulling up, and he saw it had him headed off before he could get around it, and he made for the north side and ran down and tried to catch, missed his handhold, and his foot slipped over the rail. Harris also said he could see the porter standing up in the door, and his intention was to attract the porter’s atention and get him to open the door so he could get on and not miss the train. Other wtinesses testified to substantially the same statements as having been made by Harris upon that occasion. Several witnesses stated that Harris spoke of having a lame leg. The testimony further showed that the train which caused the injury consisted of four or five cars, the passenger coaches having vestibuled doors, and that those doors were usually kept closed on the north side at Longview station, the south being the side provided for passengers to get on and off. Harris was 51 years of age, was 5 feet 7 inches high, and weighed about 175 pounds. The defendant in error offered evidence to show that he was a man of prudent and careful habits.

It is contended that, in view of this evidence, the defendant in error was not entitled to recover, because it conclusively appears that the accident resulted from conduct on the part of Harris and under conditions which exempted the insurance company from liability. The policy of insurance contained the following provisions, upon which that defense is based: Under the head of “Provided,” and in the last subdivision, the following language is used:

“This insurance shall not cover disappearance or suicide, sane or insane, or injuries of which there is no visible mark, etc.; * * * nor skall it cover accidents, injuries, death, loss of limb or sight, or disability, resulting wholly or partly, directly or indirectly, from intoxication, * * * from voluntary exposure to unnecessary danger; * * * nor (except as incident to the occupation of railway employes insured as such) shall this insurance coyer accidents, injuries, death, loss of limb or sight, or disability, resulting directly or indirectly from entering or trying- to enter or leave a moving conveyance using- steam as a motive power (except cable and electric street cars), or happening while being in any part thereof not provided for occupation by passengers or while being on a railway bridge or roadbed.”

As preliminary to the discussion of the defense here presented, it is proper, and perhaps essential, to first determine upon whom rested the burden of showing the particular cause of the accident. The plaintiff in error contends that the clauses of the policy referred to above being exceptions to the general risk assumed, but parts of the contract of insurance, it devolved upon the defendant in error to not only prove an accidental death or injury, but to also show one which was not within the terms of the exceptions; that this was essential ,to the establishment of a cause of action upon the policy. The trial court took the opposite view of the law, and framed his charge upon the assumption that a prima facie case having been made by showing a death from an accident within the general term's of the policy, and imposed upon the plaintiff in error the duty of showing that the accident resulted from conditions or causes embraced within the exceptions. The plaintiff in error refers to the case of Pelican Insurance Co. v. Troy Association, 77 Tex. 225, 13 S. W. 980, as supporting its contention. That ease was a suit upon a fire insurance policy, which contained exceptions couched in terms very similar to those embraced in this policy. After quoting those exceptions, Judge Stay-ton held that, in order to show a cause of action, it was necessary for the plaintiff to prove facts which affirmatively showed an accident not within the terms of the exceptions. In other words, he held that it was necessary for the plaintiff to show that the fire did not occur from one of the excepted causes. In the recent case of Ginners Mutual Underwriters v. Wiley & House, 147 S. W. 629, that case and also one of a later date, which followed it, are referred to and discussed in an opinion by Justice Higgins of the El Paso court. A large number of cases holding a contrary view are there collected and followed as announcing the better rule in such controversies. In view of these last-mentioned rulings, as well as upon principle, we think the holding of the trial court in this instance should be sustained. This, however, should be 'subject to the qualification that where, in his pleadings or his proof, the plaintiff presents facts which tend to show an injury resulting from one or more of the excepted causes, he should be required to rebut the inference to he drawn from such facts, and show that the injury did not in fact result from one of the excepted causes.

Returning to the consideration of the grounds urged as calling for the peremptory instruction, we shall consider them in the order previously stated:

First, Did the evidence show, as a matter of law, that Harris was injured while entering or trying to enter a moving train? The testimony before referred to shows that he approached the train on the north side, opposite to where the doors had been opened for the use of passengers. His/ purpose, manifestly, was to get on that train. The evidence indicates that he could not do that because the doors of the vestibules were closed. Harris accounts for the accident by saying that his foot slipped, or that he stepped over the rail; and presumably the injury resulted from a wheel of the ear running over his leg. Whether he was then trying to get on the train while it was in motion, or was merely endeavoring to attract the attention of the porter with a view of having the latter stop the train, or of having him open the door so that Harris could enter while the train was still in motion, were matters of fact for the jury to determine. If Harris was only trying to attract the attention of the porter and was making no effort to board the train, even though he had caught the handhold of the car, it could not be said, as a matter of law, that he was within the terms of the exception which exempts the plaintiff in error when the injured party is at the time entering or trying to enter a moving train. Hence we conclude that the demand for a peremptory instruction based upon that ground was correctly refused.

The next question is: Was Harris injured while being on a railway roadbed? If the terms of this exception are to be given a literal construction and application, then the plaintiff in error’s contention should be sustained, for it conclusively appears that Harris was injured while physicálly on the roadbed. Rut to say that a railway roadbed is to be considered a zone to which the policy does not apply, regardless of the* character or cause of the accidental injury which occurs there, would lead to such absurd consequences that it cannot be assumed the parties had any such construction in mind at the time the contract was made. Evidently the purpose of this exception to the general terms of- the policy was to exempt the insur-anee company from liability for injuries resulting from the perils peculiar to the operation of trains, such as collisions with ears. Osgood v. Insurance, 76 N. H. 475, 84 Atl. 50, Ann. Cas. 1913C, 425; Burkhard v. Insurance Co., 102 Pa. 262, 48 Am. Rep. 205. It may be replied, however, that Harris was injured as a result of an exposure to one of those peculiar perils; that he was in fact struck by a passing train. But to make that fact alone the controlling test of liability would produce consequences no less clearly beyond the contemplation of the parties. To say that a person, regardless of other conditions, who is struck by a moving train, can claim none of the benefits of insurance under a policy like that involved in this suit, would ignore the plain purposes for which the insurance was secured. If the construction insisted upon be adopted, a person who happens to he upon a railroad track, or within the danger limit, whether by accident or by force of conditions over which he has no control, would not be covered by the terms of the policy. The language of the policy does not indicate that the insurance company undertook to exempt itself from accidents of that particular class. Had any such purpose existed, it might easily have been made clear by a provision in the policy so stating. The fact that no such explicit language was used may be taken as evidence that no such intention existed. We think the more reasonable construction, and the one which must have been contemplated by the parties, is that, to come within the meaning of the exception, it must appear that the injured party voluntarily and unnecessarily or carelessly placed himself in a position to be injured by some one or more of the perils peculiar to being on a railway roadbed. This construction is also supported by several precedents. Payne v. Fraternal Accident Assurance Co., 119 Iowa, 342, 93 N. W. 361; McClure v. Great Western Accident Ass’n, 141 Iowa, 350, 118 N. W. 269; Equitable Accident Ins. Co. v. Osborn, 90 Ala. 201, 9 South. 869, 13 L. R. A. 267; De Loy v. Travelers’ Ins. Co., 171 Pa. 1, 32 Atl. 1108, 50 Am. St. Rep. 787; Meadows v. Pacific Mutual Life Ins. Co., 129 Mo. 76, 31 S. W. 578, 50 Am. St. Rep. 427.

We come, then, to the question, Was Harris unnecessarily and voluntarily upon the roadbed when injured? It follows from what has been said that the roadbed, within the meaning of the policy, is not coextensive with the right of way, or even with the embankment upon which the ties and rails rested, but includes only that portion that was within the sphere of danger. Harris had purchased a ticket and went to the train for the purpose of taking passage. He slipped and accidentally fell within the sphere of danger. He was not, therefore, voluntarily upon the roadbed, within the meaning of the' exception. His ticket entitling him to passage authorized and required him to approach the train and get in close proximity to it. He was not, therefore, unnecessarily upon the roadbed. The court did not err in refusing the peremptory instruction upon that ground.

We cannot say, as a matter of law, that Harris voluntarily exposed himself to an unnecessary danger. Just what his .position was immediately prior to the accident is a matter of inference from which a jury might draw different conclusions.

Complaint is made of the action of the court in giving a charge on the issue of overexertion as a cause of the accident. The error, if any, was harmless, because the facts did not justify the submission of any such issue to the jury.

It is also contended that the court erred in giving the following charge explanatory of what it took to constitute a voluntary exposure to an unnecessary danger:

“You are instructed that, before you can find for the defendant on the ground that the deceased received his accident as a result of his voluntary exposure to unnecessary danger, you must find, by a preponderance of the evidence, that the deceased, at the time of the accident, voluntarily exposed himself to unnecessary danger, and that his injury and death resulted therefrom, and, if you fail to so find, you will not find for the defendant on this issue. And in this connection you are further instructed that it is not sufficient for the defendant to show that the deceased was guilty of a want of ordinary care or a lack of prudence, but it is necessary to show that the deceased went into the danger and received his injury as a result thereof, and that while going into the danger, if any, the deceased had knowledge of the particular danger and cause to apprehend it, and that he went into the danger, if any, with the intention to expose himself to it, and that he received his injury as a result thereof, and a failure to so show by a preponderance of the evidence would not entitle the defendant to a verdict on this issue.”

There were various general objections made to this charge, among which are: It was on the weight of the evidence and not authorized by the pleadings or the evidence. It is specifically stated as an objection that it required that the deceased should have had knowledge of the particular danger, and cause to apprehend it, and that he went into it with the intention of exposing himself. We think the rule there stated is supported by the general trend of the authorities. Continental Casualty Co. v. Deeg (Civ. App.) 125 S. W. 353; Whalen v. Peerless Casualty Co., 75 N. H. 297, 73 Atl. 642, 139 Am. St. Rep. 695; Beard v. Indemnity Ins. Co., 65 W. Va. 283, 64 S. E. 119; Travelers’ Ins. Co. v. Clark, 109 Ky. 350, 59 S. W. 7, 95 Am. St. Rep. 374.

It is further contended that this policy of insurance was an Oklahoma contract, and that our statute providing for the recovery of damages and attorney’s fees has no application. That question appears to have been settled adversely to the contention of the plaintiff in error in Franklin Ins. Co. v. Villeneuve, 25 Tex. Civ. App. 356, 60 S. W. 1048, Id., 29 Tex. Civ. App, 128, 68 S. W. 203. The last citation is the second appeal in that case, in which the same question appears to have been raised regarding the light to collect damages and attorney’s fees in suits upon insurance policies executed in other jurisdictions. The Supreme Court refused a writ of error, and we take this as an approval of the doctrine there laid down by the Court of Civil Appeals.

The judgment of the district court is affirmed.
      <§£s>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: McMEANS, J.

text:
    CITY OF HOUSTON et al. v. BAKER et al.

    (No. 7019.)
    (Court of Civil Appeals of Texas. Galveston.
    May 25, 1915.
    Rehearing Denied June 24, 1915.)
    1. Taxation ¡&wkey;40 — Uniformity — Constitutional Provisions.
    Const, art. 8, § 1, provides that taxation shall be equal and uniform, and that all property shall be taxed in proportion to its value, ascertained as provided by law. Section 2 provides for the exemption of certain property by general laws, and that all laws exempting other property shall be void. The charter of the city of Houston provides that every person owning or holding property shall under oath render to the assessor and collector a full and complete inventory of all property owned or held by him, whether real, personal, or mixed, and that all property, real, personal, and mixed, shall be subject to taxation. Held that the so-called “Houston Plan of Taxation,” whereby land was taxed at 70 per cent, of its full value, improvements on land at 25 per cent, of their full value, stocks of merchandise and similar personal property at 50 per cent, of their full value, and money, stocks, mortgages, and similar property were not taxed at all, was violative of the constitutional requirement of uniformity and was illegal.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 68-89; Dec. Dig. &wkey;40.]
    2. Taxation <&wkey;320 — Ordinances—Municipal Action.
    Although there was no ordinance of a city expressly exempting household goods, money, mortgages, and similar personal property from taxation, the deliberate omission of such property from taxation by the city and its taxing officers in legal effect wa'á the same as if done under an ordinance of the city.
    [Ed. Note. — Por other cases,, see Taxation, Cent. Dig. § 535; Dec. Dig. <¿^320.]
    3. Mandamus <&wkey;3.12 — Discriminatory Taxes — Remedy.
    Mandamus is a proper remedy for persons injuriously affected by a discriminatory system or plan of taxation.
    'Ed, Note. — For other cases, see Mandamus, Cent. Dig. §§ 238-248; Dec. Dig. &wkey;all2.]
    4. Taxation &wkey;>498 — Discrimination — In- ’ junction.
    Injunction is a proper remedy for persons injuriously affected by a discriminatory system or plan of taxation.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. &wkey;40S.J
    5. Taxation <&wkey;498 — Illegal Plan — Injunction — Parties Entitled.
    Where plaintiffs showed that a plan of taxation which defendant city was about to enforce in violation of the constitutional re- ■ quirement of uniformity •'would require owners of unimproved land to pay taxes far in excess of the amount they would have to pay if all property in the city were taxed under the system contemplated by the Constitution and the city charter securing taxation of all property and equal valuation of all classes of property, equity would interfere to restrain a further operation of the city’s tax plan.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §| 913-919; Dec. Dig. &wkey;498.]
    6. Taxation <&wkey;494^lLLEGAL Tax Plan-Injunction — Inadequacy oe Remedy at Daw.
    In such case, where it appeared that plaintiffs’ lands were singled out by such plan of taxation to boar the principal burden of taxation contrary to the Constitution, whereby their value and their availability for investment was reduced, the existence and enforcement of the illegal tax plan constituted such a cloud on the title of their lands as equity would remove.
    lEd. Note. — For other cases, see Taxation, Cent. Dig. §§ 8S4r-8SS; Dec. Dig. &wkey;494.]
    7. Taxation &wkey;>498 — Illegal Tax Plan-Grounds oe Injunction — Multiplicity oe Suits.
    Where defendant city was putting into operation an illegal tax plan, so that all the owners of land situated similarly to plaintiff might successfully resist the payment of excessive taxes when the city made demand therefor, and the validity of the act might be determined in one proceeding by parties entitled to relief, equity might interfere to restrain the assessment and collection of taxes illegally im’posed, on the ground of avoiding a multiplicity of suits.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. &wkey;498.]
    8. Taxation <&wkey;498 — Illegality—Preventing Collection.
    Where different classes of property are systematically valued at different ratios of value for purposes of taxation, and the owner paj'S or tenders the amount of taxes that would be due on a proper valuation, the law will restrain the collection of taxes from property on a higher ratio of value than that applied to other classes of property.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. &wkey;498.j
    9. Taxation <&wkey;498 — Injunction — Inadequacy of Remedy at Daw.
    The fact that, where the property of a certain class belonging to one person is valued for taxation at a higher rate than property of a different class, the owner, by paying or tendering the amount of taxes that would be duo on the lower valuation, may defeat the collection of taxes based on the higher valuation, does not afford an adequate remedy at law so as to preclude an injunction, where a city’s illegal tax plan, exempting one‘Class of property from taxation, would seriously embarrass its fiscal affairs by a failure to produce the funds necessary to pay the expenses of government.
    I Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. &wkey;498.J
    10. Taxation <&wkey;498 — Illegal Plan — Injunction — Time.
    Where a city had begun to assess the values of property for 1915 under an illegal and unconstitutional plan, and the city council, on plaintiffs’ petition thereto, had declared that it would continue the plan for that year, plaintiffs’ suit for mandamus and injunction against the city and its taxing officers to enjoin the enforcement of such plan was not premature.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. &wkey;>498.]

      11. Taxation <&wkey;498 — Illegal Plan — Injunction — Enforceability of Order.
    In such suit, an order made after a hearing, reciting that the plan sought to be enjoined would be adhered to unless forbidden and that it violated the Constitution and the rights of plaintiffs and others similarly situated, and directing a temporary injunction against defendants with respect to such taxes, commanding that they thereafter proceed legally and constitutionally so that the taxes should be equal and uniform on all classes of taxable property and be proportional to the value, was ■sufficiently definite, and did not trench upon any discretionary powers of defendant city or •of its taxing officers.
    [Ed. Note. — Por other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. <&wkey;>498.]
    12. Taxation <§^498 — Illegal Plan — Injunction — Right to Intervene.
    In a suit by taxpayers to enjoin defendant city and its officers from violating the constitutional requirement of equality and uniformity of taxation, leaving it to the discretion of the taxing authorities to fix any per cent, of full value as a basis of taxation, a request to intervene by a petition seeking to compel defendants to tax all property at 100 per cent, •of its value and to deprive them of discretion in fixing a lower value which might be equal •and uniform, and to have plaintiffs’ case dismissed, did not seek the same relief as that sought by plaintiffs, and was properly denied.
    LEd. Note. — Por other cases, see Taxation, Cent. Dig. §§ 913-919; Dec. Dig. <&wkey;>498.]
    13.Apfeal and Error <&wkey;95 — Orders Ap-pealable — Interlocutory Order.
    On appeal from an interlocutory order granting an injunction from which an appeal lies only in virtue of a statute, and where the •only question determinable is whether the court properly granted the preliminary injunction on the petition filed, one whose petition in intervention was never filed had no right under the .statute to appeal from the order denying his request to intervene.
    [Ed. Note. — Por other cases, see Appeal and Error, Cent. Dig. §§ 649-654; Dec. Dig. <&wkey;> '95.]
    Appeal from District Court, Harris County; John A. Read, Judge.
    Suit by J. W. Baker and another, executors of Rebecca Baker, deceased, J. J. Setter gast, and others, for mandamus and injunction against the City of Houston and others, in which the request of H. P. Ring to file a petition in intervention was refused. Order and decree for plaintiffs, and defendants and Ring appeal.
    Affirmed.
    Sam, Bradley & Pogle, of Houston, for appellants. Wilson, Dabney & King, of Houston, for appellees.

       writ ol error pending in Supreme Court.

   McMEANS, J.

This suit was brought by J. W. Baker and Joe P. Meyer, executors of the estate of Rebecca Baker, deceased, J. J. Settegast, H. P. Cohen, S. Rosenberg, and M. P. Geiselman, for themselves and for all others similarly situated, against the city of Houston, a municipal corporation, and Ben Campbell, its mayor, J. J. Pastoriza, H: A. Halverton, Dave Pitzgerald, and Mat Dren-nan, aldermen of said city, and who, together with the mayor, constitute the city council of said city, and T. R. Browne, assessor and collector of taxes for said city, and the said Pastoriza, Halverton, Pitzgerald, and Browne, who constitute the board of appraisement of said city, prasdng for a writ of injunction and mandamus against the defendants to compel the city of Houston to abandon that which is known as the “Houston Plan of Taxation,” by and under which land is taxed at 70 per cent, of its full value, improvements on land taxed at 25 per cent, of its full value, stocks of merchandise and similar personal property taxed at 50 per cent, of its full value, and money, stocks, bonds, notes, mortgages, and similar personal property are not taxed at all, but exempted by the city and its taxing officers from the payment of any taxes whatever; and to require said city and its taxing officers to tax all property in said city, not exempted by the Constitution from taxation, without discrimination, at the same ratio or portion of value.

The court upon being presented with the petition set a day for hearing thereon, and notice thereof was duly given to the defendants, who appeared and answered. The matter was heard upon the sworn petition of plaintiff and answer of defendants and amendments thereof, affidavits, and documents, and at the conclusion of the hearing the court made and entered its order, in part reading as follows:

“ * * * And it appearing to the court that said petition prays for a mandamus and injunction to compel the city of Houston to abandon the so-called ‘Houston Plan of Taxation,’ on the ground that said plan of taxation discriminates against certain classes of taxable property, and also that it fails to comply with the Constitution, by exempting certain classes of property from taxation which are not' exempt •under the law; and it appearing to the court, as alleged by the plaintiffs, and in essential particulars admitted and proven, that-this plan of taxation was deliberately adopted, and would be adhered to unless forbidden- by the courts, and that same involves the practice of taxing different kinds or classes of property at different proportions or ratios of value, and of virtually exempting certain classes of property from taxation altogether, and that said plan of taxation was violative of the Constitution of the state, and of the rights of the plaintiffs in this suit, and of all others similarly situated, on behalf of whom the plaintiffs sued; and it appearing to the court that the defendants "are valuing different classes of property for purposes of taxation at different ratios, or proportions of value, and particularly are valuing lands without or independent of improvements at a much higher proportion of full value than is applied to other classes of taxable property, thereby requiring of such land without improvements to pay. in excess of its just and legal proportion of taxes; and it also appearing to the court that defendants are also exempting certain classes of taxable property from any taxation whatever, all of said acts being done by defendants by a fixed and established plan of discrimination and exemption — it is therefore ordered by the court that, on the plaintiffs giving bond in the sum of $1,000, the clerk of this court will issue a writ of temporary injunction commanding and enjoining the defendants and' each of them with respect to the taxes for the year 1915, and thereafter that they proceed to value the taxable property m the city of Houston, and all classes of taxable property in the city of Houston, without discrimination in valuation for or against any class of taxable property, and without exempting any class of taxable property (not exempt by the Constitution of Texas) from the taxes of the city of Plouston, and commanding and enjoining the defendants and each of them that they be enjoined and prohibited from valuing different classes of taxable property at different ratios or proportions of full value for purposes of taxation, and particularly enjoining and prohibiting the defendants and each of them from valuing lands without improvements at a higher ratio or proportion of full value than is applied uniformly to all other taxable property and classes of taxable property in the city of Houston, to the end that the taxes of the city of Houston shall be equal and uniform on all classes of taxable property in said city, and shall be proportional to value as required by the Constitution of the state.”

Prom this order and decree of the court, the defendants have appealed.

The following facts were alleged and substantially proved, viz.:

The Houston Plan of Taxation has been in force and operation in the city of Houston for several years. It was under this plan that taxes were assessed and collected for the year 1914. Under this plan the city taxes land without improvements at 70 per cent, of full value, improvements on land at 25 per cent, of full value, stocks of merchandise and similar personal property at 50 per cent, of full value, and entirely omits from taxation household goods, money, stocks, bonds, mortgages, notes, credits, and other similar personal property. The taxable values of property in the city of Houston of the classes taxed amount to more than $109,000,000, while the value of the class of property exempted from taxation, or not taxed under said plan, amounts to several million dollars.

Plaintiffs are the owners of property in the city of Houston taxable under the Constitution and laws of the state and the charter of the city, their property consisting largely of land which, in value, far exceeds the value of their other taxable property with the possible exception of plaintiff Settegast. As an example, the estate of Baker owns land of the value of $324,570, improvements upon land of the value of $7,510, and cash on hand $18,793.97; so that, under said plan of taxation, the estate would he required to pay taxes on 70 per cent, of $324,570 valuation, 25 per cent. on'$7,510 valuation, and escape taxation altogether on $18,793.97 valuation. A simple calculation will show that under said plan the estate of Baker and other plaintiffs similarly situated would be required to pay taxes far in excess of the amount they would have to pay if all property in the city were taxed and taxes were equal and uniform and proportional to values.

The city of Houston and its taxing officers intend to, and if not enjoined will, follow in the year 1915 the same plan of taxation adopted and acted on by it in the year 1914, and the several years previous thereto, of taxing lands at 70 per cent, of their full value, improvements on land at 25 per cent, of their full value, stocks of merchandise and similar personal property at 50 per cent, of their full value, and omitting from taxation household goods, money, stocks, bonds, notes, mortgages, credits, and similar personal property; and to this end said city and its said officers, before the expiration of the year 1914, had made out assessment sheets for the year 1915 of property taxed under said plan, for the signature of the property owners, and a great many of the property owners and taxpayers signed such assessment sheets before the expiration of 1914, and others had signed and were signing such sheets after the 1st day of January, 1915, and the city and its said officers were thus actively putting, into.effect its intention to follow the Houston Plan of Taxation for the year 1915, and will follow said plan for said year unless restrained.

Plaintiffs’ petition contained a sworn allegation, which was not denied, that lands being singled out in violation of the Constitution to bear the principal burden of the taxes of the city of Houston, reduced the value of plaintiffs’ lands and their availability for investment

On December 30, 1914, Hon. Ben Campbell, mayor of Houston, published in the Houston Post a formal invitation, to any one who might believe that the Houston Plan of Taxation was illegal and unconstitutional, to take the matter into the courts, so that it might be settled at once and for all. In this publication he stated:

“We found the. plan here when we came into office, but if it is illegal and unconstitutional, it should be settled. It is for this reason that I invite any one who believes the plan to be illegal to file suit against the council and commission, praying for mandamus requiring them to levy taxes in accordance with their construction of the constitution and the law, and enjoining them from doing it in any other manner.”

Following this invitation, William H. Wilson, Esq., counsel for the plaintiffs, interviewed the mayor and city council and obtained from them an authoritative statement as to the different percentages of values used in valuing different classes of property for taxation, which was as hereinbefore stated, and thereafter the plaintiffs presented a petition to the city council requesting a discontinuance of said plan of taxation, and demanding the taxation of all taxable property proportionally to value, without discrimination against any class of property. This petition was acted upon by the city council, and the relief prayed for was refused.

The charter and ordinances of the city of Houston provide that the owners of property subject to taxation in the city shall render for taxation all property therein owned by them on the 1st day of January, and that such rendition shall be made between the 1st days of January and March, and it is made the duty of the board of appraisement, including the assessor and collector and tax commissioner, to receive such assessments between said dates. It is the duty of the board of appraisement to equalize values. The owners of property may appeal from the action of the taxing officer making the assessment to the board of appraisement or equalization, and from the action of this board to the city council; but there is no appeal from the action of the city council fixing values of property, and its action in that regard is final and conclusive and no appeal therefrom lies. Neither the charter nor the ordinances provide for any hearing before the board of appraisers or the city council where the question is, not as to the values of taxable property, but as to the respective proportions of value which shall be used by the city and its taxing officers in the assessment of the respective classes of property.

H. F. Ring, a citizen of Houston, owning both real and personal property in said city subject to taxation, asked permission of the court to intervene; but his request was refused. In his petition in intervention, he adopted all of the allegations of fact in the petition of plaintiffs and the answer of defendants, but not the conclusions based upon the facts alleged. The relief sought by him was, not that all property in the city subject to taxation should be taxed at the same ratio or proportion of its full value, as prayed by plaintiffs, but that the defendants be commanded to value all kinds and classes of property at the true and full value of same in money. He further prayed that the plaintiff’s suit be dismissed, without prejudice and with express permission to reinstate the same after the second Monday in April, 1&15, if a necessity therefor should then arise. This prayer was based upon an allegation in his petition for intervention to the effect that an entirely new board of taxing officers would be elected on that date and installed one week later, in which new board the power of approving the tax rolls was vested by the charter and ordinances of the city of Houston, and that the entry by the court of any order in this case in advance of the approval of said rolls would be illegal, confusing, and of no avail. He prayed other relief, the character of which need not be here stated. From the action of the court in refusing to permit him to file his petition of intervention, he also has appealed.

We shall first dispose of the questions presented for a reversal by the city of Houston and its coappellants.

Section 1 of article 8 of the Texas Constitution provides:

“Taxation shall be equal and uniform. All property in this state, whether owned by natural persons or corporations, other than municipal, shall be taxed in proportion to its value, which shall be ascertained as may be provided by law.”

Section 2 of article 8, after providing that the Legislature by general laws may exempt certain property from taxation, none of which is within the class of that omitted from taxation by the city of Houston, further provides that “all laws exempting property from taxation, other than the property above mentioned, shall be void.”

The charter of the city of Houston provides:

“It shall be the duty of every person owning or holding property in the city of Houston to render under oath to the assessor and collector of taxes, * * * within the time prescribed by the ordinances of said city, a full and complete inventory of all property so owned or held by him, whether real, personal or mixed. * * * All property, real, personal or mixed * * * is subject to taxation. *' * • ”

While there is no ordinance of the city of Houston which expressly exempts household goods, money, stocks, bonds, mortgages, notes, credits, and other similar personal property, the omission of such property from taxation is the result of design and a deliberately fixed plan of the city of Houston and its taxing officers, and in legal effect is the same as if done under and by virtue of an ordinance duly adopted by the city council. Hoefling v. San Antonio, 85 Tex. 230, 20 S. W. 85, 16 L. R. A. 608. That the plan so adopted and acted upon for the last several years, and which the city and its taxing officers intended to act upon for the year 1915, is illegal, we think is clearly shown by the provisions of the Constitution of this state and of the charter of the city of Houston above quoted, as well as a vast array of the decisions of the courts of last resort in this and many other states. Nor, indeed, do counsel for the city and its taxing officers contend otherwise, but, on the contrary, expressly admit the illegality of the plan, by the use of the following language in their brief;

“It was not contended on behalf of appellants in the trial court, and it will not be contended in this court, that the plan of taxation alleged in appellees’ petition to have been adopted by appellants is a legal or constitutional plan of taxation.”

In view of this admission, we will not further dwell upon this branch of the case, but with the simple statement that said plan is violative of the provision of the Constitution which demands uniformity of taxation, and requires that all property be taxed in proportion to its value, and of the provision of the charter which subjects all property in the city to taxation, will pass to a discussion of the contentions of the appellant which may be stated in the form of questions, as follows: (1) Do the allegations of plaintiffs’ petition and the proof show that plaintiffs would sustain injury should the plan be pursued? (2) Have the plaintiffs an adequate remedy at law? (3) Was the suit brought prematurely? (4) Is the injunction enforceable?

We shall not pause to discuss the question of whether the proper remedy of persons injuriously affected by a discriminatory system or plan of taxation is by mandamus or injunction, further than to say that, while we gather from the authorities that mandamus is the favored remedy, the remedy by. injunction has often been resorted to and sustained. Lively v. Railway, 102 Tex. 545, 120 S. W. 852; Langley v. Smith, 126 S. W. 660; Cummings v. Bank, 101 U. S. 155, 25 L. Ed. 903; Johnson v. Holland, 17 Tex. Civ. App. 210, 43 S. W. 71.

Answering the question whether plaintiffs showed that they were injured by the system, complained of by them by which unequal valuation of different classes of property for taxation was made, we think it sufficient to refer to the case of the Baker estate, used for illustration in our findings of fact, wherein it is shown that said estate owned lands of the value of $324,570, improvements upon land of the value of $7,510, and cash on hand $18,793.97, and that under the discriminatory plan of taxation the estate would be required to pay taxes on 70 per cent, of the value of the land, 25 per cent, of the value of the improvements upon land, and escape the payment of taxes upon the amount of cash on hand. All the other plaintiffs were similarly situated with respect to their ownership of property in the city, with the possible exception of the plaintiff Settegast.

As we have heretofore stated, a simple calculation will show that under this system the estate of Baker and others similarly situated would be required to pay taxes far in excess of the amount they would have to pay if all property in the city were taxed under the system, contemplated by the Constitution and of the charter of the city of Houston of taxation of all property and equal valuation of all classes of property. This being true, there can be no question that they would be directly injured oy the illegal plan adopted by the city; and as the injury was sustained, not solely by an individual, but by a large class of individuals, there can be no question that equity may properly interfere to restrain the further operation by the city of the plan of taxation which is manifestly and admittedly unconstitutional and illegal. Cummings v. National Bank, 101 U. S. 159, 25 L. Ed. 903.

As to the contention that plaintiffs have an adequate remedy at law, it is shown by the sworn allegations of plaintiffs’ petition, which are not denied, that lands being singled out by said plan of taxation to bear the principal burden of taxation, contrary to the Constitution, reduced the value of their lands and their availability for investment. It has been held by eminent authority that the existence of illegal taxes, and the existence and enforcement of an illegal system of taxation against land, may constitute such a cloud on the title thereof as equity will remove. Dows v. Chicago, 11 Wall. 108, 20 L. Ed. 65; Raymond v. Chicago, etc., Co., 207 U. S. 20, 28 Sup. Ct. 7, 52 L. Ed. 78, 12 Ann. Cas. 757.

Again, if the relief sought by plaintiffs were denied, while each of them and all persons similarly situated might successfully resist the payment of excessive taxes when demand for payment should be made by the city therefor, this would inevitably result in the prosecution of as many suits as there should be persons in the city whose property, under the system adopted, had been taxed at a higher value than the property of other citizens. The policy of our laws and of our courts is in opposition to the bringing of many suits where the validity of the act or acts which give rise thereto may be determined once and for all in one proceeding. Hence it has been held that, where a suit has been brought to restrain the assessment and collection of taxes illegally imposed, equity may interfere to prevent a multiplicity of suits. Cummings v. Bank, 101 U. S. 157, 25 L. Ed. 903; Dows v. Chicago, 11 Wall. 108, 20 L. Ed. 65; Raymond v. Chicago Traction Co., 207 U. S. 20, 28 Sup. Ct. 7, 52 L. Ed. 78, 12 Ann. Cas. 757. In the case first above cited it is said:

“We are of opinion that when a rule or system of valuation is adopted by those whose duty it is to make the assessment, which is designed, to operate unequally and to violate a fundamental principle of the Constitution, and when this rule is applied not solely to one individual, but to a large class of individuals or corporations, that equity may properly interfere to restrain the operation of this unconstitutional exercise of power.”

But what would be the result if it should be held that the pleadings and evidence in this case did not justify the interposition of a court of equity to restrain the exercise of the unconstitutional acts of the city and its taxing officers, because each of the complainants and all others similarly situated had an adequate remedy at law? It has been held in this state that, where different classes of property are systematically valued at different ratios of value for purposes of taxation, the law will restrain the collection of taxes from property on a higher ratio of value than as applied to other classes of property. Thus, in Lively v. Railway, 102 Tex. 552, 120 S. W. 852, where the railway company tendered the amount of taxes at a lawful rate on its intangible values proportioned to Dallas county on a value of' two-thirds of its full value, that being the valuation generally used in the assessment of other property in that county, the court enjoined the collection of any more tax on the value of intangible property, notwithstanding a state statute required that taxes, should he paid on intangibles at 100 per cent, valuation. The court, after stating that the-facts of that case evidenced a deliberately adopted policy to discriminate between the. different classes of property in the assess-' ment of taxes, and that such discrimination . was forbidden by the Constitution and in contravention to section 1 of the fourteenth amendment of the Constitution of the United States, held that as, at the time the wrongful act was being done in that case, it was impracticable to increase the assessment of all property in Dallas county to the higher ratio, the courts, in administrating the remedy, would take the course that was most practicable to secure uniformity of valuation of the property to be taxed, and would enjoin the collection of taxes on any higher proportion of the full value of the railroad’s property than was uniformly applied in that county to other classes of property.

Property of taxpayers generally in Hays county was assessed at a valuation of not exceeding 50 per cent, of full value, but the intangible values of a railway company were assessed at 100 per cent, of the full value. The railway company tendered payment of taxes on a 50 per cent, valuation and successfully resisted the collection of any larger amount. Railway v. Kone, 122 S. W. 424.

In Langley v. Smith, 126 S. W. 660, it was held that an assessment of national hank stock at 85 per cent, of its full value, while all other property subject to taxation was assessed at 41 per cent., is an inequality of taxation, and that the tax collector could be enjoined from collecting the tax based on such valuation.

We gather from the cases cited, and others of the same character, that, where the property of a certain class belonging to one person is valued for taxation at a higher rate than property of a different class, the owner, by paying or tendering the amount of taxes that would he due on the lower valuation, may defeat the collection of the tax based on the higher. Ordinarily this would be an adequate remedy for persons in like position of complainants, where property generally was taxed at a fixed valuation, and that of the complainant was taxed at a higher, as in the cited case of Railway v. Kone. But could that remedy be availed of in this case without disastrous results to the city? Here there were three classes of property taxed, and each on a different ratio of value, viz.: Land at 70 per cent., merchandise at 50 per cent., and improvements on land at 25 per cent. Another class of property amounting to millions of dollars was not taxed at all, but in legal effect exempted from taxation by the deliberate plan and action or nonaction of the city and its taxing officers. If then the landowner might have avoided the payment of taxes in the full amount for which they were assessed by tendering a sufficient sum to pay the taxes assessed against the class of property carrying the lowest valuation, the city would probably be seriously embarrassed in its' fiscal affairs by a failure to derive by taxation the necessary funds to pay the expenses of government. The facts of this case naturally suggest another question, viz.: If under the Constitution taxation is required to be equal and uniform, and all property is required to be taxed in proportion to its value, when the city by its deliberate purpose and plan omitted from taxation, and-thereby virtually exempted, millions of dollars of taxable property of one class from taxation, are not all other persons who own property of the other classes entitled to the exemption of their property from taxation? This is a question, however, which is not necessary to a decision of this ease, and we do not decide it.

We now reach the question: Was the suit brought prematurely? It is our opinion that it was not, for the city has begun already to assess the values for 1915 by the same discriminating system, and, this being called by plaintiffs to the attention of the city council by a petition accompanied with a demand that such discrimination be discontinued in the taxes of 1915, the council declared that it would not discontinue such discrimination, but would continue the same for the year 1915. All this is alleged in the plaintiffs’ petition, and the defendants, in reply thereto, say that unless restrained by the court they will value property for purposes of taxation by the same discriminating values which were used for different classes of taxable property in the year 1914. We think that this action was properly brought while the unlawful act is being done, and at a time when it can be corrected with the least inconvenience and injury, rather than that the action should have been delayed until the matter is completed to a point where it cannot be corrected at all or only with great difficulty and confusion. Relief can be granted now with effect, prohibiting the unlawful valuations before they are completed. But, if defendants are permitted to proceed until all the unlawful valuations are made and completed, then a case will have arisen where an extraordinary mandatory injunction will be required, commanding every valuation of property in the city to be remade, the effect of which will be to bring about a state of affairs so complex and difficult that the courts might be inclined to let the illegal acts stand, giving the taxpayers the right to pay taxes on the lowest valuation adopted. Lively v. Railway, 102 Tex. 545, 120 S. W. 852. And if it should be law (which we do not now so hold) that this last remedy, because of the omission and practical exemption from taxation of a large amount of a certain class of property, would have the effect of exempting all other classes of property from taxation (Hoefling v. San Antonio, 85 Tex. 230, 20 S. W. 85, 16 L. R. A. 608), and would therefore be impracticable, the refusal of the court to act now might produce direful consequences to the city, the extent of which cannot now be foreseen. Unless the relief prayed for by plaintiffs is granted, the remarkable situation is presented that, where there is and can be no issue as to the right of defendants to continue in the unlawful discrimination, and where the essential facts are not denied, but admitted, the courts will not prohibit the continuance of the unlawful discrimination, though its aid is sought promptly, and before the unlawful acts were completed, on the invitation of the defendants, in order to have determined the legality of the acts complained of probably in time for same to be determined finally on appeal before the time had expired for the final valuation of property for the taxes of 1915, and that, too, when there can be no question that the city is without lawful right to do the things complained of.

We think that the order of the court is sufficiently definite to be enforced, and that the apprehension of defendants in that regard is not well founded. The order does not trench in the slightest upon any discretionary powers of the city or of its taxing officers. It simply commands the city to observe the law which requires equality and uniformity, of taxation, leaving it to the discretion of the defendants to fix for taxing purposes any per cent, of full values that they may deem expedient or proper.

We do .not think that the refusal of the court to permit Mr. Ring to intervene was such error as to require a reversal of the judgment. In his petition he did not seek the same relief prayed by plaintiffs, in that, while the plaintiffs sought only equality and uniformity of taxation, leaving it to the discretion of the taxing authorities to fix any per cent, of full value as a basis of taxation, Mr. Ring sought to have the defendants required to tax all property at 100 per cent, of its value, and to deprive the defendants of discretion in fixing a lower value for the purpose of taxation, although the values so fixed might result in equality and uniformity of taxation. Again, in his proffered petition of intervention, he sought to have the plaintiffs’ ease dismissed — a relief which’ he, as an intervening plaintiff, clearly had no right to ask.

Again, this appeal being from an interlocutory order granting an injunction, from which an appeal lies only in virtue of a statute authorizing an appeal from such interlocutory order, and the only question which can be determined on such an appeal being whether the court properly granted the preliminary injunction on the petition filed, and Mr. Ring’s intervention having never been filed, he has no right under said statute to appeal from the order refusing to permit him to intervene at this time. ■

We believe that the judgment of the court below should be affirmed, and it has been so ordered.

Affirmed.
      <g^>For other eases see same topic and KEY-NUMBER in. all Key-Numbered Digests and Indexes

      <S^>Fbr other eases see same topic ancTKEY-NUMBER in all Key-Numbered Digests and Indexes