author: HENDRICKS, J.

text:
    McWHIRTER v. FIRST STATE BANK OF AMARILLO.
    (No. 895.)

    (Court of Civil Appeals of Texas. Amarillo.
    Jan. 12, 1916.
    Rehearing Denied Feb. 2, 1916.)
    1. Banks and Banking <§¿¿>77 — Insolvency —Action—Parties.
    Under authority of the commissioner of banking, an action to realize on assets may be maintained in the name of a bank in the hands of a special agent appointed by such commissioner to wind up its affairs.
    [Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. §§ 165-176i/2; Dec. Dig. <@=77.]
    2. Abatement and Revival <@=45 — Insolvent Bank — Action by Agent — Abatement.
    An action brought by authority of the commissioner of banking in the name of a bank in the hands of a special agent appointed by such commissioner to wind up_ its affairs will not abate on change of commissioner.
    [Ed. Note. — For other cases, see Abatement and Revival, Gent. Dig. §§ 226-236; Dec. Dig. <@=45.]
    3. Banks and Banking <@=39 — Insolvency —Action -on Subscription — Defenses.
    The fact that, as between a bank and a subscriber for stock thereof, the subscription was on credit, with an agreement that it should be paid from dividends, is not available as a defense where he is sued on his subscription after the bank has defaulted and is in the hands of a special agent appointed by the commissioner of banking to wind up its affairs, and the action is for the benefit of creditors.
    [Ed. Note. — For other cases, see Banks and Banking, Gent. Dig. §§ 4A-48; Dec. Dig. <@= 39.]
    4. COBPORATIONS <@=90 — INSOLVENCY — ACTION on Subscription — Defenses.
    One who for years went along as a stockholder of a corporation receiving dividends, being sued for the benefit of its creditors after it became insolvent, is estopped to assert that he is not a stockholder because the stock was issued for his note in violation of Const, art. 12, § 6, requiring it to be issued for money paid.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 245, 383-419; Dec. Dig. <@=90.]
    Appeal from District Court, Potter County; Hugh L. Umphres, Judge.
    Action by the First National Bank of Amarillo against H. K. MeWhirter. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Madden, Trulove, Ryburn & Pipkin and Kimbrough, Underwood & Jackson, all of Amarillo, for appellant. Turner & Rollins, of Amarillo, for appellee.

      Application for writ of error pending in Supreme Court.

   HENDRICKS, J.

The appellee sued, the appellant upon a note for the principal sum of $1,000, dated October 3, 1912, payable to the First State Bank of Amarillo, due April I, 1913, with interest from maturity at the rate of 8 per cent, per annum, and providing for the usual 10 per cent, attorney’s fees — the petition acknowledging certain credits unnecessary to specify.

The plaintiff, the First State Bank of Amarillo, alleged that it was in the hands of one J. O. Roots, special agent under the appointment of W. W. Collier, commissioner of insurance and banking of the state of Texas; the appointment of Roots having been made after said bank had become insolvent; and further averred that Roots, as such special agent, was winding up the affairs of the bank and collecting its assets for the benefit of its creditors and stockholders, under the direction of Collier as commissioner of insurance and banking, and that said suit was instituted under the authority of both Roots and Collier.

Appellant’s first assignment of error is that:

“The court erred in overruling defendant’s plea in abatement, * * * because plaintiff’s petition fails to show any authority in the said W. W. Collier and J. O. Roots, to maintain the suit in the name of the plaintiff, First State Bank, and said petition shows that said First State Bank is incompetent to maintain said suit in its own name.”

The Supreme Court of the United States, in the case of Bank of the Metropolis v. Kennedy, 17 Wall. 19, 21 L. Ed. 555, referring to previous authorities, decided by the same court, said;

“We have already decided in the case of this very receiver that he may bring suit in his own name or use the name of the association. Kennedy v. Gibson, 8 Wall. (75 U. S.) 506 [19 L. Ed. 476], The subject was also lately discussed in the case of Bank of Bethel v. Pahquioque Bank, 14 Wall. (81 U. S.) 383 [20 B. Ed. 840], and the same views were held; the action in that case being brought against the insolvent bank.”

Appellant admits, of course, the entitative existence of the corporation, whose affairs are in the hands of the government, except in so far as its duties and responsibilities are suspended by the possession, under the law by the state officers. The point is that the deprivation of dominion by the board of directors over the assets of the corporation is such that the corporation itself could not sue to realize upon the assets, and that the power could not be conferred upon it to sue for the benefit of the liquidator, or Collier, the commissioner.

The authorities, in similar matters, are against the contention. If a receiver could use the name of a national bank in bringing a suit, we can see no objection to the use of the name of a state bank by the commissioner for the same purpose.

The plea in abatement further asserted that subsequent to the last continuance of the case, Collier, as commissioner, was out of office and had been succeeded by one Patterson. Appellee replies that the plea in abatement, suggesting the matters indicated, comes too late.

We think, however, as a short cut to the whole matter, that the commissioner of banking had the right to use the name of the First State Bank in instituting and maintaining a suit for the recovery of its assets; that when the power is conferred and the suit is instituted, because the particular officer of government, who authorized the suit had retired and his successor had been appointed, this condition of itself would not operate as an abatement of the suit. The authority had gone forth, and we are not referred to any case, nor can we find any, that because of a change of officers such power would be presumptively revoked. Neither the case, of Warner Valley Stock Co. v. Hoke Smith, Secretary of the Interior, 165 U. S. 28, 17 Sup. Ct. 225, 41 L. Ed. 621, nor the principles therein enunciated, apply to this condition.

The second assignment raises the same question as to the abatement of the.suit produced by the retirement of Collier, and the succession of Patterson, as comptroller, as raised by the fourth proposition under the first assignment. Both assignments are overruled.

Appellant alleged in his answer that he originally subscribed for certain stock in the First State Bank, upon an understanding with one Le Master that appellant and one Holbrook, “could acquire the stock altogether on credit, and that the plaintiff would so handle their stock and note as to make the stock realize sufficient revenues from dividends and the increase in value to pay off the note which appellant and Holbrook would be asked to give.” (The quotation is from the brief.) He also alleged that when the transaction was thereafter consummated, and the stock was delivered to him, it was redelivered upon request as collateral security for the note, and this was done with the knowledge of the officers of the bank of the agreement mentioned. His reconvention is that the promoters first, and the officers thereafter (on account of ratification), having made said agreement, it is one of indemnity to the extent that he would not be bound upon the original note, and was not obligated to pay any successive renewal of the first note executed on account of the violation of the bank of said agreement. The trial court sustained an exception to this agreement.

There is force in appellee’s position that the allegations merely express a “puffing” transaction, or one of “trade talk,” which, with its indefiniteness, is unenforceable. It is admitted by appellant in the pleadings that the assets of the particular bank are in the hands of Roots as special agent, under appointment by Collier, as commissioner. Under the law, the commissioner takes charge of a delinquent bank on account of default in the payment of its debts. It is inferable from tile testimony in tiiis case that Roots, the special agent, took charge of this bank on account of its failure.

When the government takes charge of a defaulting bank and is administering its affairs, for the purposes indicated by statute, we think the question of solvency, or technical insolvency, of said bank, is a foreclosed proposition. If the bank were not insolvent, according to the ordinary acceptation of the term, however, the government having suspended its operations, its action for the purposes of this suit, as to that question, is final. We take it that the use of the bank’s name as nominal plaintiff, is not the act of the bank, but the act of the government by virtue of the power vested in its officers under the law in assuming charge of its assets. The action of the commissioner, in charge of a state bank, in making an assessment against the stockholders under the provisions Of our statute, is determinative, the same as the assessment of a receiver under the provisions of the National Bank Act. Collier v. Smith, 169 S. W. 1108, and authorities cited. We believe the same principle would apply to that question in the condition of this record. Hence, reverting to the question of the alleged indemnity, as pleaded by the defendant, we do not think that the same is available in this proceeding. The fund to be derived from a stockholder, in the present condition of this corporation, should be regarded as a trust fund to be devoted to all the creditors of the company. Sawyer v. Hoag, 17 Wall. 610, 21 L. Ed. 735; Burleson v. Davis, 141 S. W. 561. It is true that the cases, in regarding such assets as a trust fund, for the benefit of creditors, generally refer to actual insolvency of corporations whose affairs are before the courts or in the hands of an assignee for administration. As to this corporation, however, the statutes of this state have substituted a condition, whether actual insolvency or not, calling for the interposition of the officers of government for the administration of the assets of a defaulting corporation, primarily for the benefit of creditors. We think the same rule should prevail as applicable to this record.

Chief Justice James, of the San Antonio district, held, in the case of Roach v. Burgess, 62 S. W. 80-1, that a stockholder of a college corporation, sued after the insolvency of said incorporation for tuition owing the college, could not show a parol agreement contemporaneous with a stock subscription that the stock should be received in payment of said tuition.

Morawetz on Private Corporations, vol. 2, § 821, says:

“In equity * * . * the shareholders of an insolvent corporation are held to be unconditionally liable to its creditors to contribute the amount of capital subscribed by them, although their subscriptions were conditional, as between themselves and the company, upon a regular call or assessment by the board of directors” — citing the case of Hatch v. Dana, 101 U. S. 205, 214, 25 L. Ed. 885.

The court submitted an issue to the jury whether or not the appellee originally issued its corporate stock to appellant for and in consideration of the note, to which the jury answered that the same was not so issued. Appellant questions this submission, and the jury’s answer.

It is argued by appellee that the original note, executed by McWhirter, the appellant herein, was one made payable to Holbrook and indorsed in blank by the latter; that the officers of the appellee bank, as the agent of McWhirter and Holbrook, discounted the note to the Dallas bank, and the proceeds of that negotiation constituted a payment of the stock as between the bank and MeWhir-ter; that the note was thereafter transferred by the Dallas bank to the Amarillo bank for a valuable consideration, and that this note, payable to Holbrook, was taken up by another note executed by McWhirter and Holbrook, direct to the First State Bank, and constituted a loan; that the present note for $1,000 sued upon, after Holbrook had been eliminated from the transaction, is a renewal of the note payable direct to the Amarillo Bank as such loan. Hence the note sued upon, it is asserted, is not the payment of the stock; in a sense it had already been paid for.

Appellant contends that said renewal represents the original note; that said original note in reality was given for the stock which was delivered to him, and then redelivered to the bank as collateral security for the indebtedness; that the transaction by the First State Bank with the Dallas bank is a subterfuge; that the latter bank paid nothing for the original note, and when surrendered, and transferred by it to the Amarillo bank, just a few days after it had been delivered to the Dallas bank, no consideration likewise passed, but that the same was a juggling of debits and credits between the two banks; that stripped of circumlocution, the present note, in reality, represents the original note; that the stock originally was delivered to Mir. McWhirter, as it was recognized by the bank as having been “issued” by using it as collateral security, and hence such a transaction is in violation of the Constitution, for the reason that the stock was not issued for “money paid.” Section 6, article 12, state Constitution.

The case of Allen v. Edwards, 93 Miss. 719, 47 South. 382, presents this condition. Section 850 of the Annotated Code of 1892, of Mississippi, prescribes that:

“A note, obligation, or security of any kind, given or transferred by one subscriber for stock in any corporation, shall not be considered taken or held as payment of any part of the capital stock of the company.”

One Edwards was director and stockholder of a corporation, and continued to be director and stockholder of the institution throughout the period of the prosperity of the bank, receiving dividends. Edwards had transferred a note of another for sir shares of stock in the bank, for which Allen had become receiver, apparently in the face of the provision quoted. The receiver of the hank, after its insolvency, collected the note, and Edwards’ contention was that this particular money should not have been applied on the subscription to this stock, but should have been credited to him individually, and allowed as an offset to the note sued upon by the receiver. The Supreme Court of Mississippi said:

“That section [850_, supra] has no application in the solution of this case. It simply provides that there can be no valid subscription to stock without the payment in cash therefor. The rule, ■declared by that section was intended to secure the corporation and its creditors and depositors, .and not to benefit a defaulting subscriber. * * * The stock subscription of the bank was the means of the company, on the faith of which credit was given to it, and every subscriber was liable for debts contracted during his ownership of stock, and for a year after he had transferred it to the amount of his subscription. * * * The purpose of these statutes and section 850 is perfectly plain. They were all enacted for the purpose of protecting the depositors and creditors of a bank. They were not passed with any view to benefit a defaulting stockholder. * * * Edwards held himself out by all his conduct and dealings with the bank * * * as a stockholder of these six shares, * * * and, having so held himself out towards depositors and creditors, as a stockholder * * * the law will take him at his word and deal with him as if he in fact were a stockholder, whether he was or not. In other words, he is estopped to deny as against creditors, that he was a stockholder as to these six shares, by his own course of dealing in the matter.”

As applied to an insolvent corporation, we think the rule is sound.

The case of Sawyer v. Hoag, supra, by the United States Supreme Court, was one where the assignee in bankruptcy was suing a stockholder upon a note, which, though regarded as a loan between the insurance company and the stockholder, the Supreme Court of the United States said, that:

“The debt which the appellant owed for his stock was a trust fund devoted to the payment •of all the creditors of the company,” and this fund could not be appropriated by the debtor to the exclusive payment of his own claim, in an action of set-off.

In that case the set-off, it is true, was one acquired after insolvency, and the question of the indebtedness being void, on account of some prohibitory statute or constitutional enactment, was not involved.

This record shows that McWhirter went along for several years as a stockholder, receiving and acknowledging dividends paid by the bank, as having been earned upon the stock. The bank, as plaintiff in this suit, is . a nominal party for the benefit of the officers of the state for the creditors and other stockholders. The bank has defaulted and the state is attempting to realize upon its assets for the purpose of executing the trust for the benefit of those entitled to the fund. 'This is not, in reality, litigation between the ■bank and McWhirter, with the latter asserting that his note' is void because in violation of the Constitution. It is an attempt upon the part of McWhirter, when pursued by the parties in charge of the assets, to invoke the Constitution, and abstract a fund for the benefit of the creditors and other stockholders after the crash has come. If courts permitted indemnities to be pleaded by stockholders, when corporations have become insolvent, conditions are conceivable where the creditors of a defaulting corporation might look into a vacuum.

We also think McWhirter is estopped to deny that he is a stockholder in the condition of the record. This discussion disposes of all other assignments.

Believing that the court rendered the proper judgment, it is affirmed.
      cg^For other oases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: BUCK, J.

license: Public Domain

text:
    AUTO TRANSIT CO. et al. v. CITY OF FT. WORTH et al.
    (No. 8304.)

    (Court of Civil Appeals of Texas. Ft. Worth.
    Nov. 20, 1915.
    On Motion for Rehearing, Jan. 15, 1916.)
    1. Appeal and Ebrok <©=>719 — Assignments of Error — Necessity.
    On appeal from an order declining to continue a temporary injunction, appellants are not required to file briefs containing formal assignments of error.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 2968-2982, 3490; Dec. Dig. @=>719.]
    2. Injunction <@=>85 — Subjects of Relief— Enforcement of Ordinances.
    While, as a general rule, an injunction will not be granted to stay criminal proceedings, an injunction will be granted to prevent the threatened enforcement of a criminal ordinance, the validity of which is involved to avoid a multiplicity of suits, and irreparable injury, there being no adequate remedy at law where repeated prosecutions will seriously impair or destroy property rights.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 155, 156; Dec. Dig. <§=>85.]
    3. Courts <@=>1 — “Jurisdiction.”
    The “jurisdiction” of a court is the power to consider and decide one way or the other as the law may require.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 1-^4, 6-9, 91-106; Dee. Dig. <@=>1.
    For other definitions, see Words and Phrases, First and Second Series, Jurisdiction.]
    4. Courts <S=>207 — Jurisdiction — Court of Civil Appeals.
    Where property rights are involved in the attempted enforcement of penal ordinances alleged to be invalid because of statutory and constitutional grounds, the Court of Civil Appeals, though a court of exclusive civil jurisdiction, may properly exercise its jurisdiction to inquire into the validity of the ordinance and to grant relief by injunction if it should determine the ordinance to be invalid.
    [Ed. Note. — For other cases, see Courts, Dec. Dig. @=>207.]
    5. Carriers <@=>2 — Constitutional Law <©=> 205 — Class Legislation — Regulation of Jitney or “Motor Bus.”
    An ordinance regulating the operation of motor busses, defining a “motor bus” as any automobile or trackless motor vehicle carrying passengers for hire, and held out or announced as operating or running over a particular route to a paticular point, or within any designated territory, requiring a license to be procured, imposing a license fee of $10, and requiring the execution of a surety bond conditioned for the payment of damages for injuries or death caused by the negligence or willful act of the owner or operator, does not violate Const, art. 1, § 3, providing that all freemen have equal rights, and that no man or set of men is entitled to exclusive, separate public emoluments or privileges, except in consideration of public services, though no surety bond is required of street railways, taxicabs, or rent cars, and no license fee is required for the operation of the street railway, while a license foe of only $3 is imposed on taxicabs and other rent cars.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 6; Dec. Dig. <§==>2; Constitutional Daw, Cent. Dig. §§ 691-624; Dec. Dig. @=>205.]
    6. Constitutional Daw @=>136 — Impairing Obligations of Contract — Revocation of Dicenses.
    A city drdinance imposing more burdensome conditions on the operation of jitneys or motor busses than were imposed by a prior ordinance with which parties operating motor busses had complied did not violate Const, art. 1, § 16, prohibiting the enactment of any law impairing the obligation of contracts where it provided that those who had paid a license fee under the prior ordinance might have a license granted them under the new ordinance for the unexpired term, or that in case the licensee should elect to discontinue the operation of his motor bus the portion of the fee for the unexpired term would be refunded to him.
    [Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. §§ 299, 300, 343, 362; Dec. Dig. @=>136.]
    7. Constitutional Daw @=>297 — Eminent Domain @=>2 — 'Taking Property — Privileges and Immunities.
    A city ordinance requiring parties operating jitneys or motor busses to procure a license for which a license fee of $10 was imposed, and to furnish a bond conditioned for the payment of damages for injuries or death caused by their ■vehicles, and authorizing the revocation or suspension of the license upon conviction for a violation of any provision of the ordinance, did not violate Const, art. 1, § 17, providing that no person’s property shall be taken, damaged, or destroyed or applied to public use without adequate compensation being made, or section 19, providing that no citizen shall be deprived of life, liberty, property, privileges, or immunities, or in any manner disfranchised, except by due course of law of the land.
    [Ed. Note. — For other cases, see Constitutional Daw, Cent. Dig. §§ 832-834; Dec. Dig. @=> 297; Eminent Domain, Cent. Dig. §§ 3-12; Dec. Dig. @=>2.]
    8. Dicenses @=>7 — “Occupation Tax” — Statutory Provisions.
    Such ordinance did not violate Const, art. 8, § 2, providing that all occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax, as the license fee was not in the nature of an occupation tax, and, moreover, the .burdens placed upon different individuals engaged in the operation of motor busses were the same, and it is only when a discrimination is shown as between members of the same class that this constitutional guaranty may be invoked.
    [Ed. Note. — For other cases, see Dicenses, Cent. Dig. §§ 7-15, 19; Dec. Dig. @=>7.
    For other definitions, see Words and Phrases, First and Second Series, Occupation Tax.]
    9. Monopolies @=>4 — Validity of Ordinances.
    Such ordinance did not violate Const, art. 1, § 26, providing that a monopoly shall never be allowed, as it disclosed no intent or purpose to create a monopoly of the carrying of passengers in favor of a street ear company, taxicabs, and other rent vehicles, and the court would not be authorized to speculate or surmise as to the existence of such motives on the part of the municipal legislative body, or that such a result would probably flow from the enactment of the ordinance.
    [Ed. Note. — For other cases, see Monopolies, Cent. Dig. § 3; Dee. Dig. @=>4.]
    10. Carriers @=>2 — Use of Streets — Regulation of Jitneys.
    That parties operating jitneys or motor busses are not in a position to comply with an ordinance requiring as a condition to the granting of a license for the operation of motor busses the execution of a bond conditioned for the payment of damages for injuries or death caused by their vehicles, and will therefore be required to abandon the operation of their motor busses, does not in itself establish the unreasonableness or invalidity of the ordinance.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dec. Dig. @=>2.]
    11. Carriers @=2 — Use of Streets — Regulation of Jitneys.
    That parties operating jitneys or motor busses will suffer a pecuniary injury from the enforcement of an ordinance regulating the operation of such vehicles does not even tend to establish the invalidity of the ordinance.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 4, 5; Dec. Dig. @=>2.]
    12. Municipal Corporations @=>703 — Use of Streets — Regulation of Jitneys.
    The Ft. Worth' charter gives the board of commissioners exclusive power and control of the streets, and authorizes the board to regulate the speed of locomotives, trains, street cars, vehicles, and animals, abate nuisances, prohibit and restrain or regulate the use of vehicles, (automobiles, or other conveyances, regulate and fix the fares, tolls, and charges of all street railways, public carriages, hacks, and vehicles, provide for license fees, police tax, and surveillance of drivers and owners of vehicles, and vests the board with general police powers to enact and enforce ordinances necessary to protect health, life, and property, and to prevent and summarily abate and remove nuisances and enforce the good government, order, and security of the city and its inhabitants, and to have and enjoy the general police powers of a city. Such board adopted an ordinance requiring persons desiring to operate motor busses, defined as including trackless motor vehicles, carrying passengers for hire, and operating and running over a particular route, or to a particular point, or within designated territory, to file an application for a license, giving, certain specified information as to the vehicle intended to be operated, its proposed driver, route, etc., and providing that the board might for reasons therein designated refuse a license; that no license should be granted except on condition that a bond conditioned for the payment of damages for injuries or death should be furnished; that individual sureties thereon should furnish specified proof of their insolvency; and that the' board might require a new or additional bond. It further promulgated rules for the operation of such vehicles, the loading and unloading of passengers, the number of passengers, the hours each day in which the motor bus must be operated, the speed of operation, etc., and made violations thereof a misdemeanor punishable by a fine not exceeding $200, and authorized the revocation or suspension of the license upon conviction for violations. Held, that this was authorized under the general police powers with which the board was vested by the charter, as well as the other charter provisions mentioned.
    [Bd. Note. — For other oases, see Municipal Corporations, Cent. Dig. §§ 150&-1513; Dec. Dig. <S=>703.]
    On Motion for Rehearing.
    13. Municipal Corporations <©=>703 — Regulation op Jitneys or Motor Busses.
    An ordinance regulating the operation of jitneys or motor busses, and requiring as a condition to the granting of a license for the operation of any such vehicle the execution of a bond conditioned for the payment of damages for injuries or death caused by the operation thereof, was not discriminatory or invalid, though there was no similar requirement as to the operation of taxicabs or rent cars, or individuals operating their own cars, not for hire, as the operation of jitneys on crowded streets is a business peculiarly dangerous to the public, and the duty of care on the part of operators is more important than the performance of such duty in the case of one only occasionally or infrequently driving, over such streets, and the danger therefrom is more imminent and frequent, and a city, in the exercise of its police power, may properly require a further guaranty than it does of others that operators of such vehicles will avoid acts of negligence and respond for any damage inflicted.
    [Bd. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1509-1513; Dec. Dig. <©=>703.]
    Appeal from District Court, Tarrant County ; . Marvin H. Brown, Judge.
    Suit by the Auto Transit Company and others against the City of Ft. Worth and others. From an order refusing to continue a temporary injunction, plaintiffs appeal.
    Affirmed.
    Ike A. Wynn, of Ft. Worth, for appellants. T. A. Altman, of Ft. Worth, for appellees.

      Application for writ of error pending in Supreme Court.

   BUCK, J.

This was a proceeding by the Auto Transit Company, a corporation domiciled in Ft. Worth, Tarrant county, Tex., and J. C. Walton, a resident of said county, professedly on behalf of themselves and 60 other “motor bus” or “jitney” owners and operators against the city of Ft. Worth, represented by its mayor and four commissioners, seeking to enjoin the enforcement of Ordinance No. 448, and as amended by Ordinance No. 470, theretofore passed by the said board of commissioners, regulating the operation of said motor busses, or “jitneys,” in common parlance, on the streets of said city. Both ordinances were attached to and made a part of the petition. Petitioners alleged that they, and those for whom they sued, had complied with Ordinance No. 448 when it became effective, and had since been operating thereunder. Petitioners also alleged that Ordinance No. 442, theretofore passed by the city of Ft. Worth, provided that every owner of a motor-driven vehicle should register the same and pay a license number tax to the assessor and collector of $1 per car, and that they, and those for whom they sued, had complied with the said ordinance also. It was further alleged that the Auto Transit company owned and operated 32 motor buss-es, and had invested in its cars about $17,500, and the plaintiff Walton about $500. Others for whom suit was brought were also alleged to have invested approximately the sum of $500 each; and it was averred that the effect of Ordinance No. 470 would be to drive the motor bus or “jitney” out of competition with the street railway company operating in Ft. Worth, and to give a monopoly to said street railway company of the transportation of passengers within said city; that the city of Ft. Worth embraces about 17% square miles, and has a population of about 100,000; that it has many miles of streets which are traversed by the street cars, and by far the greater portion of its inhabitants do not live adjacent to street car lines, and that the “jitney” has been for some time a necessary public conveyance and utility, and is an economical and efficient development of local transportation necessary for the convenience and welfare of the great majority of the inhabitants of said city; that there are now in operation in said city about 150 “jitneys,” which carry many thousands of passengers each day. It was further alleged that petitioners were unable to comply with the provisions of Ordinance No. 470 requiring a bond in the sum of $2,500, payable to the mayor of the city of Ft. Worth, and executed by the person in whose name the license is sought as principal, and a solvent surety corporation, incorporated under the laws of the state of Texas, or with permit to do business in this state, conditioned that the principal shall pay all legal damages for injuries to property or person of any one, including injuries resulting in death on account of the negligence or willful act of the owner or operator of such motor bus, etc., inasmuch as the fee for said bond was unreasonable and even prohibitory, such companies charging from $200 to $250 for each said bond executed. Further allegations were made as to the terms, requirements, and conditions of said Ordinance No. _ 470 with reference to the operation of motor busses or “jitneys,” as contained in subdivision “g” of section 5 of said ordinance, which petitioners alleged were discriminatory, and constituted an unnecessary and unreasonable regulation beyond the police power of the city, and violated the Oonstitutions of the United States and the state of Texas. It was further alleged that, inasmuch as it is practically impossible for petitioners to comply with the provisions of said ordinance, they would be greatly injured in their property and property rights, and would be deprived of the privileges and immunities guaranteed to them by the laws of the land, if such ordinance should be enforced, and that the city of Ft. Worth, through its said board oí commissioners, was threatening and attempting to enforce said ordinance, and that, unless it was restrained, it would subject plaintiffs, their agents and employés, and those in whose behalf they brought suit, in case they did not comply with the provisions of said ordinance', which compliance was alleged to be impossible, to innumerable arrests and prosecutions and much vexation, harassment, and oppression.

Accompanying, and in support of, said petition was an affidavit of E. M. Rogers, president of the Auto Transit Company, to the effect that said company had been incorporated for the purpose of owning, maintaining* and operating automobiles and other vehicles designed for the purpose of carrying passengers, freight, express, and mail in the city of Et. Worth; that said company had paid its franchise tax for 1915; that the “jitneys” or “motor busses” in the city of Et. Worth numbered about 150, and carried approximately 30,000 passengers each day for a five-cent fare; that there were a great many “taxicabs” and “rent cars” operating in Ft. Worth, and said “rent cars” were five-passenger Ford automobiles, and practically identical with those operated by plaintiffs, and such cars were operated over the streets in the same manner as plaintiffs’ “jitneys,” with the same attendant risks and dangers; that said taxicabs and rent cars charged many times as much for carrying a passenger as plaintiffs charged; that the Northern Texas Traction Company is a private corporation operating street cars over certain streets in the city of Ft. Worth for a fare of five cents; that an automobile is not a dangerous machine, or an unsafe means of conveyance, and that a careless or reckless driver makes the operation of an automobile just as hazardous when he is operating a “private car” or “rent car” as when he is driving a “jitney” or “motor bus”; that the “jitneys” constituted a great convenience to the inhabitants of the city of Ft. Worth, many of whom choosing and preferring this mode of travel. Affiant further averred the compliance by his company with the provisions of Ordinances Nos. 442 "and 448, and'the payment by it of various sums of money for registration of license fees and the purchase of indemnity contracts, as provided by said ordinances, that it was impossible to make personal bonds, as provided in the alternative in Ordinance No. 470, and was wholly impossible to comply with the provisions requiring bonds by surety companies, and that it would cost said plaintiff company $6,600 to procure the bonds executed by a surety company.

•Also there were affidavits from E. W. Scott and Adams B. Vera containing practically the same averments. Also an affidavit signed by some 11 persons alleged to be citizens of Ft. Worth, to the effect that the Northern Texas Traction Company owns and operates a street railway system in the city of Ft. Worth, and has about 77 miles of trackage. and runs about 200 cars over the streets of said city, and that there are about 100 other carriers of passengers for hire in the way of taxicabs, omnibuses, etc., running over said streets, and that none of these mentioned carriers are required to carry passenger insurance as provided in said ordinances applicable to the “jitneys.”

A temporary restraining order was granted by the trial court, and upon hearing on June 26, 1915, the court declined to continue said temporary injunction, which expired on the day of hearing, and denied plaintiffs’ prayer so to do, to which- order of the court the plaintiffs excepted and gave notice of appeal.

Plaintiffs have not filed in this court briefs containing formal assignments of error, and under the law they are not required to do so (Holbein v. De La Garza, 126 S. W. 42; F. W. & D. C. Ry. v. Craig, 176 S. W. 827), but have contented themselves with filing a memorandum of authorities. But we have, had the benefit of an able and exhaustive brief furnished by appellee.

On the threshold of the consideration of this cause we are met with two questions affecting the jurisdiction of this court, to wit: First, whether an injunction will lie to restrain the enforcement of a criminal statute or ordinance; and, second, even though it be admitted that in certain instances such relief may be granted, may the authority to grant such relief be exercised by a court of exclusive civil jurisdiction, or has the authority been delegated to courts exercising criminal jurisdiction?

First. As has been often said, it is a general rule that .an injunction will not be granted to stay criminal proceedings, but, as we understand the authorities, this does not mean that an injunction will not lie to prevent prosecution under a criminal ordinance, or to prevent the threatened enforcement of such criminal ordinance, where the validity of the ordinance is involved. It seems clear from the authorities that in the latter case an injunction will be granted to avoid a multiplicity of suits, to avoid irreparable injury, and that there is no adequate remedy at law where repeated prosecutions will seriously impair or destroy property rights. A court of equity may entertain jurisdiction of a suit to enjoin the enforcement of an alleged invalid statute, for the absence of lawful power to impose the restrictions of the statute may result in irreparable loss to the party concerned; for “jurisdiction” is the power to consider and decide one way or the other, as the law may require. Nolen v. Reichman (D. C.) 225 Fed. 812. In the case of Dobbins v. Los Angeles, 195 U. S. 223, 25 Sup. Ct. 18, 49 L. Ed. 169, the United States Supreme Court uses this language:

“It is well settled that, where property rights will be destroyed, unlawful interference by criminal proceedings under a void law or ordinance may be reached and controlled by a decree of a court of equity.”

In line with and in support of these two authorities may he cited the cases of Ex parte Warfield, 40 Tex. Cr. R. 413, 50 S. W. 933, 76 Am. St. Rep. 724; City of Houston v. Richter, 157 S. W. 189; Dibrell v. City of Coleman, 172 S. W. 550, writ of error denied November 17, 1915; City of Austin v. Austin Cemetery Ass’n, 87 Tex. 330, 28 S. W. 529, 47 Am. St. Rep. 114; Sumner v. Crawford. 91 Tex. 129, 41 S. W. 994; Greene v. City of San Antonio, 178 S. W. 6; Booth v. City of Dallas, 179 S. W. 301; Sylvester Coal Co. v. City of St. Louis, 130 Mo. 323, 32 S. W. 649, 51 Am. St. Rep. 566. In the last-cited case the Supreme Court of Missouri uses the following language:

“It is contended that, though it be conceded that the ordinances are invalid, the plaintiffs are not entitled to injunctive relief on the facts stated, for the reason that they have an adequate remedy at law. But is the remedy at law adequate? It must be remembered that the injury complained of here is continuous. The ordinances are continuous, and plaintiffs’ business is continuous, and, under the ordinances, for each wagonload of coal sold and delivered in violation of the restrictive provisions thereof, the plaintiffs each become subject to an action in the municipal courts of the city for such violation. The fact that in each of such suits the plaintiffs might plead successfully the invalidity of the ordinances as a defense thereto does not give them an adequate remedy. They are entitled to be protected from the expense, vexation, and annoyance of such a multiplicity of suits, in consequence of their continuance of a legitimate business, except upon compliance with the condition or ordinances which it is alleged are and may be utterly void.”

High on Injunctions (3d Ed.) p. 12, says:

“The prevention of vexatious litigation and of a multiplicity of suits constitutes a favorite ground for the exercise of the jurisdiction of equity by way of injunction.”

Therefore we hold that question No. 1 must be answered in the affirmative.

Second. We think also from the authorities cited, and from the allegations in the petition, to the effect that property rights are involved by the attempted enforcement of ordinances alleged to be invalid because of statutory and constitutional grounds, that this court may properly exercise its jurisdiction: First, to inquire into the validity of the ordinance attacked; and, second, in case it should determine said ordinances to be invalid, to grant the relief prayed for in plaintiffs’ petition.

We now come to the consideration of the validity vel non of Ordinances Nos. 44S and 470. It would seem from the authorities that, since appellants have taken out a license under Ordinance .No. 448, and have accepted the benefits thereof and operated thereunder, it cannot attack the constitutionality or validity thereof. Young v. City of Colorado, 174 S. W. 986; Musco v. United Surety Co., 196 N. Y. 459, 90 N. E, 171, 134 Am. St. Rep. 851; City of New York v. Manhattan Ry., 143 N. Y. 1, 37 N. E. 494; Pierce v. Somerset Ry., 171 U. S. 641, 19 Sup. Ct. 64, 43 L. Ed. 316.

In the case of Pierce v. Somerset Ry. Co., supra, the United States Supreme Court said:

“A person may by his acts or omission to act waive a right which he might otherwise have under the Constitution of the United States as well as under a statute.”

In the case of Musco v. United Surety Co., supra, the surety company became a surety for one Ferrara on a bond given under and by virtue of an act of the New York Legislature regulating the taking of deposits by persons, firms, or corporations engaged in the selling of steamship or railroad tickets, etc. Suit was brought by plaintiff against defendant surety company under said act, and from an order overruling a demurrer to the complaint it appealed to the Court of Appeals for New York urging the unconstitutionality of the statute. The court says:

“The appellant, as surety, having executed an undertaking in accordance with the provisions of said act with and for a person engaged in receiving deposits as aforesaid, in this action brought in behalf of persons who made deposits with the principal after such undertaking was executed, which have not been accounted for, defends on the ground that said act is unconstitutional. * * * We are of the opinion that these contentions cannot prevail; that, in the first place, the appellant is debarred from making them.”

In Young v. City of Colorado, supra, this court; speaking through Associate Justice Dunklin, used the following language:

“It is also well settled that a person may by his act, or omission to act, waive a right which he might otherwise have under the provisions of the Constitution. 8 Cye. 791, 792.”

In the ease of Mellen Lumber Co. v. Industrial Commission of Wisconsin, 154 Wis. 114, 142 N. W. 187, Ann. Cas. 1915B, 997, the Supreme Court of Wisconsin held that appellant, by electing to come under the Workmen’s Compensation Act of that state, was thereby precluded from objecting to its constitutionality, saying:

“The argument that the provision under discussion is violative of the ‘due process of law’ clause of the federal Constitution cannot prevail. It was optional with the appellant to come in under the Compensation Act or to stay out. It elected to take the former course. It accepted the provisions of the act as they were, the burdens as well as the benefits, and so long as it remains under the law it must take the statute as it finds it” — citing a number of cases.

But, inasmuch as the main contention of the appellants is predicated upon the provisions of Ordinance No. 470, which amended sections 1, 2, and 5 of Ordinance No. 448, we are probably not required to so declare the law as set forth in the authorities cited.

Said Ordinance No. 470 is quite lengthy and therefore we will "not attempt to set it out in full, but only mention the provisions which seem to be directly involved in the consideration of the questions presented by plaintiffs’ petition. In section 1, subd. “b,” it defines the words “motor bus” as meaning and including “any automobile, automobile truck, or trackless motor vehicle engaged in the business of carrying passengers for hire within the city limits of the city of Et. Worth, which is held out or announced by sign, voice, writing, device, or advertisement to operate or run, or which is intended to be operated or run, over a particular street or route or to any particular or designated point, or between particular points, or to within any designated territory, district or zone.”

Section 2 requires any person desiring to operate such “motor bus” within Et. Worth to file with the city secretary thereof an application in writing, giving certain information, including the type of the motor car or motor bus, the horse power thereof, the factory number, the county license number, the seating capacity, the name and age of each person to be in the immediate charge thereof as driver, whether such proposed driver uses drugs, intoxicating liquors, or had been convicted of violating any traffic ordinance of the city of Ft. Worth, the termini between which such motor bus is to be operated, the street or streets over which it is to be run, and further provides that upon the filing' of such application for license it shall be referred to the city commission, which board may for sufficient reasons designated in the ordinance refuse to grant said application and issue the license thereunder.

Subdivision “g” of said section provides that no license shall be granted to any person to operate a motor bus within the limits of the city of Et. Worth except upon the condition that the applicant for such license enter into a bond conditioned as pleaded by plaintiff and hereinbefore set out. Said subdivision further requires that individuals offered as sureties comply with certain requirements of proof establishing their solvency, that the board of commissioners may require a new bond or additional bond from any licensee whenever the bond approved, or surety thereon, is by the board deemed insufficient, or when such bond shall have been decreased in amount by recovery thereon. The license issued under the provisions of this act is required to designate the route or termini along which or between which the said motor bus is to operate.

Section 5 provides the rules of operation of a motor bus and penalties for the violation thereof, and, among other things, prohibits such motor bus from remaining standing upon any street for the purpose of loading or unloading passengers, except it be brought as near as possible to the right-hand curb of said street; from driving or operating a motor bus without the city license number being displayed on the rear of said bus. It requires, further, that a sign or painting showing both the destination and the route of same be prominently displayed on and attached to said motor bus. It prohibits persons from riding on the running boards or fenders, or to occupy any other place thereon outside of the body thereof while such motor bus is in operation, and limits the number of passengers which may ride in the front with the driver, and limits and fixes the number of hours each day in which said motor bus must be operated, except as to Sundays, and in case of accidents, breakdowns, etc., fixes the speed at 12 miles per hour in the business section of Ft. Worth, and 18 miles per hour in the residence section of Et. Worth at which motor bus may be operated, prohibits the running of said car between sundown and sunup without lights, and prohibits racing with any other motor bus or driving rapidly to pass one in order to be first to any prospective passenger or any one waiting for another motor bus or other conveyance, etc. It further provides that each and every day’s violation of any provisions of the ordinance shall constitute a separate offense, and that one so violating shall be guilty of a misdemeanor, and shall be punished by fine not exceeding $200, and that in case of conviction of the owner or operator under such ordinance the commissioner of fire and police shall report the same to the commissioners, together with his recommendation, and that the commissioners shall consider and act upon said recommendation, and may revoke or suspend such license if they deem it proper.

Under chapter 5, section 1, of the city’s charter, the exclusive power and control of the streets is given to the board of commissioners, and under section 2 of said chapter power is vested in said bo.ard, by ordinance or otherwise, to regulate within the limits of said city the “speed of locomotives, trains, street cars, vehicles and animals.” By Chapter 9, section 3, the power to abate all nuisances is lodged in the commissioners, and under section 18 the authority to prohibit and restrain or regulate the use of vehicles, bicycles, automobiles, or any other conveyance. Under chapter 11, section 8, the authority is vested in the commissioners to regulate and fix the fares, tolls, and charges of all street railways, public carriages, hacks, and vehicles of every kind; under section 13 of said chapter to provide for license fees, police tax, and surveillance of drivers and owners of vehicles of every kind; and under section 4 of the same chapter said board, is vested with general police powers “to enact and enforce ordinances necessary to protect the health, life and property, and to prevent and summarily abate and remove nuisances of all kinds and description, and to preserve and enforce the good government, order, and security of said city, and of its inhabitants, and have and enjoy general police powers of a city.

There are other provisions of the charter which might be mentioned as affecting the authority of the city sought to be exercised in this instance, but sufficient has been noted for the purposes of this opinion.

We do not think because the fee for the operation of a motor bus is placed at $10, while the license fee for taxicabs and other rent ears is only $3, and there is no license fee required for the operation of the street railway mentioned, and, further, that said ordinance requires the execution of a surety bond in the sum and terms mentioned, and none is required either for the taxicabs and other rents cars or for the street railway, make said ordinances obnoxious to the provisions of article 1, § 3, of the state Constitution, which reads as follows:

“All freemen, when they form a social compact, have equal rights, and no man, or set of men, is entitled to exclusive separate public emoluments, or privileges, but in consideration of public services.”

Nor is it the fact that said ordinance attempts to define as a separate class motor busses or ••jitney” cars. As has been said by our Supreme Court in the ease of Supreme Lodge United Benev. Ass’n v. Johnson, 98 Tex. 5, 81 S. W. 18:

“The Legislature may classify persons, organizations, and corporations according to their business, and may apply different rules to those which belong to different classes.” Campbell v. Cook, 86 Tex. 630, 26 S. W. 486, 40 Am. St. Rep. 878; Insurance Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; Marchant v. Railway Co., 153 U. S. 389, 14 Sup. Ct. 894, 38 L. Ed. 751: Insurance Co. v. Mettler, 185 U. S. 325, 22 Sup. Ct. 662, 46 L. Ed. 922.

As has been said in the case of Nolen v. Reichman, supra:

“The presumption is always in favor of the validity of legislation; and, if there could exist a state of facts justifying the classification or restriction complained of, the courts will assume that it existed.”

We can readily understand that greater danger may be caused to the public by the operation of numerous motor busses continuously throughout the day, over and along crowded streets filled with congested traffic, and without limitation as to the street or streets, or parts thereof, over which they may operate, than from the operation of taxicabs and other rent cars, which are required to occupy a fixed place or stand when not in operation, and which, when transporting passengers, do not ordinarily run over the streets on which the heaviest traffic exists, or from the operation of a street railway along a fixed track and on steel rails. As is said in Nolen v. Reichman, supra:

“Furthermore, a substantial distinction between the property of the owner of a street railway and that of the owner of a ‘jitney’ should not escape attention. The former consists of a fixed plant, including rolling stock, which is operative only along tracks provided for the purpose, while that of the latter is fugitive in character, since it is operative through its own power upon any portion of the surface of an ordinary highway. It results that the street railway property is in its nature an indemnity against the consequences of negligence, and so is at least an equivalent for the bond of indemnity which is here resisted by the owner of the ‘jitney.’ * * >*
“It may well have been that the Legislature had in mind, when it enacted the statute in question, that those engaging in the business which the act sought to regulate operated vehicles susceptible of becoming dangerous to the public by the manner of their operation; that they had no fixed track upon which to rue. and were at liberty to move over the entire surface of the street; that they had no schedule; that pedestrians had no way of knowing when and where to expect them; that they increased the danger to persons using the street, whether as pedestrians or while boarding or leaving street cars or other vehicles; that they stopped at street crossings, or along the curb between street, crossings, to receive and discharge passengers; that very often the driver owns the machine, or at least an equity in it; that many of them are financially irresponsible; that the patrons of such vehicles are composed of men, women, and children; that the vehicles, in the hands of careless drivers, might rush through crowded streets at a dangerous rate of speed, probably without any financial responsibility to their patrons or others upon whom damage might be inflicted by such machines, because of the negligence of the operators. * * *
“There is another distinction that should be noted. It concerns the taxicab. While the ‘jitney’ and the taxicab are physically the same, yet the services they perform materially differ. The service of the one is designed to accommodate persons traveling along distinct routes and at a rate of fare common to all; but the service of the other is intended for the accommodation of persons whose destinations involve varying distances and linos of travel and presumably at varying prices. The two kinds of service would signify substantial difference in numbers of vehicles needed to meet the respective demands; and so the dangers attending the operation of the ‘jitney’ presumably would materially exceed those arising in the taxicab service.”

Nor do we think that the ordinance discussed is inhibited by the provision contained in section 16, art. 1, of the state Constitution, which prohibits the enactment of any law impairing the obligation of contracts, as claimed by appellants in connection with their plea that they had complied with the requirements of Ordinances Nos. 442 and 448, and that, in effect, the enforcement of the provisions of Ordinance No. 470 would be an abrogation of the terms of the contract entered into between the city and appellants. It is stated in 8 Cyc. 938:

“As a license authorizing a person to practice a profession, or to carry on a particular business, is not a contract which vests a right, but merely the grant of a privilege, such a license is not protected by the constitutional prohibition as to the impairment of the obligation of contracts.”

In Doyle v. Insurance Co., 94 U. S. 535, 24 L. Ed. 148, the United States Supreme Court says:

“The correlative power to revoke or recall a permission .is a necessary consequence of the main power. A mere Imense by a state is always revocable.”

The application of this well-established principle certainly does not work any deprivation to the appellants, inasmuch as the ordinance provides that those who have paid a license fee under the prior ordinance may have a license granted them under this ordinance for the unexpired term, or, ,in case the licensee should elect to discontinue the operation of his motor bus, the portion of said fee for the unexpired term will be refunded to him.

Nor do we think that the ordinance is in violation of section 17, art. 1, of the state Constitution, which provides, in part, that:

“No person’s property shall be taken, damaged or destroyed for, or applied to, public use without adequate compensation being made,” etc.

—as plaintiffs alleged in their petition.

Nor do we think that it is contrary to section 19, art 1, of the state Constitution, which provides that:

“No citizen of this state shall be deprived of life,. liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land.”

This contention, raised by appellants in their petition, may most pertinently be directed to section 6 of said ordinance, which authorizes the board of commissioners, upon a showing that a licensee has been convicted of a violation of a provision of this ordinance, to revoke or suspend such license if it deem proper. It has been held that, where the authority to revoke a license is not given a municipality in its charter, and is not expressly authorized by ordinance, such revocation is not within the powers of the governing officers of such municipality (25 Oyc. 625), though the authority of revocation, it seems, may be presumed by virtue of the charter power to issue the license (Newson v. City of Galveston, 76 Tex. 559, 13 S. W. 368, 7 L. R. A. 797; City of Jacksonville v. Ledwith, 26 Fla. 163, 7 South. 885, 9 L. R. A. 69, 23 Am. St. Rep. 558, with notes thereunder) .

But section 8 of Ordinance No. 448 contains the same provision as to the power of revocation or withdrawal of license as in section 6 of Ordinance No. 470. Plaintiffs had accepted such terms when they applied for license under the older ordinance; hence it would seem that they are not now in a position to complain. 25 Oyc. p. 626, subd. “c.”

Nor do we think that it can be successfully contended that the ordinance is in conflict with article 8, § 2, of the state Constitution, which provides that:

“All occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax,” etc.

For, in the first place, the license fee therein provided is not in the nature of an occupation tax (Ex parte Sullivan, 178 S. W. 537; Hoefling & Son v. City of San Antonio, 85 Tex. 228, 20 S. W. 85, 16 L. R. A. 608); and, in the second place, it is not shown that there is any difference as to the license required of or in other burdens placed upon different individuals engaged in the operation of motor busses, and it is only when a discrimination is shown as betVveen members of the same class that this constitutional guaranty may be invoked (State v. Railway, 100 Tex. 173, 97 S. W. 71; Texas Company v. Stephens, 100 Tex. 628, 103 S. W. 481).

Nor do we think there is anything in the allegation that by the enforcement of] said ordinance there will be the creation of a monopoly of the carrying of passengers in the city of Ft. Worth in favor of the street car company or of the taxicabs and other rent vehicles, and in this respect in violation of section 26, art. 1, of the Constitution. The ordinance itself does not disclose any such intent or purpose on the part of the board of commissioners of Ft. Worth, nor does it suggest such a result. In the absence of such a showing, we would not be authorized to indulge in speculation or surmise as to the existence of such motives on the part of the municipal legislative body, or that such result would probably flow from the enactment of said ordinance. It is held that the motive of a legislative body in enacting a law will not be inquired into by the courts. Soon Hing v. Crowley, 113 U. S. 703, 5 Sup. Ct. 730, 28 L. Ed. 1145; Shenandoah Lime Co. v. Mann, 115 Va. 865, 80 S. E. 753, Ann. Cas. 1915C, 973; Cooley on Constitutional Limitations (7th Ed.) 258; 36 Cye. 1137.

Nor does the fact that the plaintiffs herein are not in a position to comply with the terms and provisions of the ordinance under discussion, of itself, establish the invalidity or unreasonableness of such ordinance. It is true that the provision requiring a surety bond may necessitate the incurrence of an expense which the plaintiffs may not be able to bear, and that therefore they will be required to abandon the operation of their motor busses, but- that in itself does not establish the unreasonableness or invalidity of the ordinance. Nor does the fact that plaintiffs will suffer a pecuniary injury by reason of the enforcement of said ordinance even tend to establish the truth of the contention that the ordinance is invalid. As said by Mr. Justice Brewer in the N. Y. & N. E. R. Co. Cases, cited in Grainger v. Jockey Club, 148 Fed. 513, 78 C. C. A. 199, 8 Ann. Cas. 997:

“The truth is that the exercise of the police power often works pecuniary injury, but the settled rule of this court is that the mere fact of pecuniary injury does not warrant the overthrow of legislation of a police character.”

In the Jacobson Case, 197 U. S. 11, 25 Sup. Ct. 358, 49 L. Ed. 643, Mr. Justice Harlan says:

“In every well-ordered society charged with the duty of conserving the safety of its members the rights of the individual in respect of his liberty may at times, under the pressure of great dangers, be subjected to such restraint, to be enforced by reasonable regulations, as the safety of the general public may demand.”

In the Barbier Case, 113 U. S. 27, 5 Sup. Ct. 357, 28 L. Ed. 923, cited in the same opinion, Mr. Justice Field says:

“Though, in many respects, necessarily special in their character, they [statutory regulations] do not furnish just ground of complaint if they operate alike on -all persons and property under the same circumstances and conditions. Class legislation, discriminating against some and favoring others, is prohibited, but legislation which, in carrying out a public purpose, is limited in its application, if within the sphere of its operation it affects alike all persons similarly situated, is not within the amendment.” Fourteenth Amendment, U. S. Constitution.

In conclusion we desire to say that, so far as we have been able to determine, the ordinance in question was authorized under the general police powers with which the charter vested the board of commissioners, as well as other charter provisions hereinbefore mentioned, and that we cannot say that the ordinance should be held invalid on any of the grounds urged, or that it contains any unreasonable terms and conditions, or is discriminatory in its nature. Therefore we hold that the trial court did not err in denying the continuance of the injunction as prayed for, and the judgment of said court is hereby affirmed.

Affirmed.

On Motion for Rehearing.

Counsel for appellants has filed an able and vigorous motion for rehearing, and in it insistently urges that in our original opinion, as well as in the opinions of all the other courts passing upon the “jitney” ordinances, the courts have overlooked, or at least failed to discuss, a feature which he thinks renders said ordinances discriminatory. It is urged that in the requirement of a surety bond of the “jitneys” the city can only justify such a provision upon the ground that it will tend to make the “jitney” operators more careful, exercise greater diligence to avoid injury to the public, but that this duty — i. e., not to negligently or willfully injure any person upon the streets of the city — is a duty which is no more chargeable upon the “jitney” operator than upon the driver of a rent car or taxicab, or upon an individual who is not operating his car for hire; that the conditions, in this-respect, under which the several classes of motor-propelled vehicles operate upon the streets are the same; that the same driver may during a part of the day operate the “jitney,” and during another part of the day drive a private car or a rent car; that the public is no more subject to injury from the same driver’s operation of a “jitney” in the forenoon than from his operation of a car other than the “jitney” in the afternoon; that his duty in this respect is no greater in the forenoon than in the afternoon; that the rule is that the same obligations or restrictions must be imposed upon all persons similarly conditioned in reference to the duty regulated. He cites in support of his contention the case of G., C. & S. F. Ry. Co. v. Ellis, 165 U. S. 150, 17 Sup. Ct. 255, 41 L. Ed. 667, a suit involving the validity of a Texas statute, passed April 5, 1889, providing, that a plaintiff whose claim, under $50 for stock killed by a railway company, which had not been paid within 30 days, should be entitled, in a suit, and upon establishing his claim, to recover reasonable attorney’s fees, not to exceed $10. The Texas Supreme Court had held this act valid, but the United States Supreme Court, in reversing our state court upon this feature, said in part as follows:

“Considered as such [as a whole], it is simply a statute imposing a penalty upon railroad corporations for a failure to pay certain debts. No individuals are thus punished, and no other corporations. The act singles out a certain class of debtors, and punishes them when for like delinquencies it punishes no others. They are not treated as other debtors, or equally with other debtors. * * * It is, of course, proper that every debtor should pay his debts, and there might be no impropriety in giving to every successful suitor attorney’s fees. Such a provision would bear a reasonable relation to the delinquency of the debtor, and would certainly create no inequality of right or protection. But before a distinction can be made between debtors, and one be punished for a failure to pay his debts, while another is permitted to become in like manner delinquent without any punishment, there must be some difference in the obligation to pay, some reason why the duty of payment is more imperative in the one instance than in the other. * * * That such corporations may. be classified for some purposes is unquestioned. The business in which they are engaged is of a peculiarly dangerous nature, and the Legislature, in the exercise of its police powers, may justly require many things to be done by them in order to secure life and property. Fencing of railroad tracks, use of safety couplers, and a multitude of other things easily suggest themselves. And any classification for the imposition of such special duties — duties arising out of the peculiar business in which they are engaged —is a just classification, and not one within the prohibition of the Fourteenth Amendment.”

We do not believe our bolding in tbe instant case and tbe bolding of tbe other courts cited in “jitney” eases fails to measure up to tbe principle laid down in tbe Ellis Case. If we are correct in concluding from the facts submitted that the operation of tbe “jitney” on tbe crowded streets of a city is a business peculiarly dangerous to tbe public using the streets, then tbe fulfillment of tbe duty of care on tbe part of tbe operators is more important than tbe performance of such duty in tbe case of one only occasionally or infrequently driving a car over said streets. Tbe danger is more imminent and frequent, and might be said to be continuous. Therefore, in tbe exercise of its police powers, a city may require of tbe “jitney” operators a further guaranty than it does of others that be will avoid acts of negligence, and that, in case of an accident, certainly more likely to occur than in the case of operators of other motor vehicles mentioned, be will be in a position to respond for tbe damage inflicted.

In St. John v. New York, 201 U. S. 633, 26 Sup. Ct. 554, 50 L. Ed. 896, 5 Ann. Cas. 909, a case in which tbe court was dealing with the question of alleged discrimination between producing and nonprodueing vendors of such article, it being contended that such law was discriminatory, for the reason that . nonproducing vendors might not exempt themselves from actions or penalties for violations of certain subdivisions of said act by showing that tbe milk sold or offered for salé by them was in tbe same condition as when it left the herd of tbe producer, a privilege accorded to producing vendors, tlie United States Supreme Gourt, after stating that the purpose of the law was to secure to the population milk containing a certain standard of purity and strength, and to disclose other milk unclean, impure, unwholesome, etc., continued:

“It is not contended that such purpose is not within the power of the state, but it is contended that the power is not exercised on all alike who stand in the same relation to the purpose, and quite dramatic illustrations are used to show discrimination. A picture is exhibited of producing and nonproducing vendors' selling milk side by side; the latter, it may be, a purchaser from the former; the act of one permitted; the act of the other prohibited or penalized. If we could look no farther than the mere act of selling, the injustice of the law might be demonstrated, but something more must be considered. Not only the final purpose of the law must be considered, but the means of its administration— the ways it may be defeated. Legislation, to be practical and efficient, must regard this special purpose, as' well as the ultimate purpose.”

We feel that the language of the Supreme Court, as above quoted, is sufficient answer to appellants’ contention.

It might be well to state that, though the “jitney” legislation is of recent origin, yet the question of the validity of ordinances similar to the one under consideration has reached the courts of- last resort, both of civil and of criminal jurisdiction, in many of the states, and, in no case, so far as we have found from our examination, has the court sustained the contention of invalidity.

In addition to the cases cited in our original opinion we might cite City of Memphis v. State (Tenn.) 179 S. W. 631; Ex parte Bogle, 179 S. W. 1193, by the Texas Court of Criminal Appeals, decided November 3, 19151, not yet officially published; City of New Orleans v. Le Blanc, 70 South. 212, decided by the Louisiana Supreme Court November 29, 1915. In these cases ordinances with similar or more onerous provisions have been upheld.

Believing that in our original opinion we correctly disposed of all the issues involved, the motion for rehearing is overruled.
      <gxs>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

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author: CARL, J.

text:
    EVANS v. SAN ANTONIO MACHINE & SUPPLY CO.
    (No. 5550.)
    (Court of Civil Appeals of Texas. San Antonio.
    Jan. 10, 1916.
    Rehearing Denied Feb. 9, 1916.)
    1. Judgment <®=»46(L-Setting Aside Judgment — Pleading—Sufficiency.
    A petition to set aside a judgment, alleging that in the action in which it was rendered plaintiff was successful; that judgment entry was postponed awaiting a transcript of the evidence to ascertain the account; that plaintiff’s attorneys prepared a proper judgment and left it with the files; that they were called to attend court at another place; and that defendant’s attorneys procured the signature and entry of a judgment, omitting the principal defendant by representing to the judge that plaintiff’s attorneys agreed to the entry — is not bad on general demurrer.
    [Ed. Note. — For other cases, see Judgment, Cent. Dig. §§ 879, 880, 882-891; Dec. Dig. <S=> 460.]
    2. Principal and Agent <§=^178 — Authoeity of Agent — Notice.
    Where plaintiff’s selling agent, before selling goods to a firm, was told that one member had left the firm and that the goods were bought by the other member for himself, the plaintiff could not recover from the retiring member, although the agent did not in fact have authority to extend credit, and orders had to be O. K.’d at a central office, since it was his duty to report to his principal the dissolution of a debtor firm, and the principal was charged with notice of all matters which his agent ought to have communicated.
    [Ed. Note. — For other cases, see Principal and Agent, Cent. Dig. §§ 680-684; Dec. Dig. <§=> 17S.]
    Appeál from Hidalgo County Court; W. H. Gossage, Judge.
    Suit by the San Antonio Machine & Supply Company against Marvin Evans. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    Kibbe, Polk & Perkins, of Brownsville, for appellant. Brown & Strickland, of Mission, for appellee.
   CARL, J.

This is a suit by appellee to set aside a certain judgment rendered in cause No. 389 in the county court of Hidalgo county, wherein appellee was plaintiff and the Pharr Auto & Supply Company, a firm composed of E. C. Ruth and Marvin Evans, were defendants, and for judgment on the merits of the cause in said suit stated against said partnership and the members thereof. Substantially the grounds upon which it was sought to set the judgment aside were these: That after hearing the pleadings and evidence, the cause having been tried before the judge, the court stated that he would not render judgment for the plaintiff until he received a transcript of the evidence from the stenographer and fully examined the several items sued for; and thereafter on three several days the attorney for appellee inquired of the judge as to what action he had taken, and the court stated that final judgment would be rendered as soon as the testimony was received and the correct amount of the account was ascertained. Thereupon appel-lee’s attorney prepared a judgment in favor of the plaintiff against the company and the members for $794.26, and placed it among the papers of the case in cause No. 389, and notified the court of same; that thereupon the judge announced in open court that, as soon as he received the transcript of the evidence and found same correct, he would cause the same to be entered, and that if the amounts were not correct, he would make the necessary correction in regard thereto and enter same; that appellee’s attorneys were compelled to attend a trial in San Antonio and could not remain, and the judge stated that it would not be necessary for them to remain, as he would see that the proper judgment was entered. Thereupon said attorneys left for San Antonio and did not return until after the term closed, and they relied upon the court’s assurance. It is further alleged that on the last day of the term one of the attorneys for Marvin Evans presented to the court a decree in said cause which gave the plaintiff judgment against the Pharr Auto & Supply Company and B. C. Ruth, the wholly insolvent member, but provided that no judgment should be taken against Marvin Evans, he to go hence without day, recovering his costs of the plaintiff. It is alleged that the judge told him that since the plaintiff had recovered judgment, it would be proper for its attorneys to draw the judgment; hut this attorney thereupon said that plaintiff’s attorneys had agreed with him that he draw the judgment, and that the one he had prepared was agreeable to plaintiff’s attorneys. The trial judge was in a hurry to go to Brownsville, in another county, and when said statements were made to him, he entered his approval and signature on the decree so presented without reading the same, and did not know that Evans was left out of said decree, having relied on the statements of appellant’s attorney that such judgment was in accordance with the agreement made between the attorneys. The term of court had closed when appellee’s attorneys returned from San Antonio, and the trial judge did not know what the decree provided until some time after the term had closed. Fraud, accident, or mistake are relied upon to set the judgment aside, and it is alleged that the Pharr Auto & Supply Company has no assets and Ruth is wholly insolvent. These matters were all set out in the petition, and the judgment prepared by plaintiff below, the petition in cause No. 389, and the judgment entered as prepared by appellant’s attorney were all attached thereto as exhibits and made a part of the petition in this cause.

The first assignment is that the court erred in overruling the general demurrer to the petition, but we think this is without merit, and overrule the same.

The second assignment complains of the refusal of the court to give an instructed verdict for defendant, Marvin Evans, because the uncontradicted evidence shows that the account was made after notice to appellee that he had withdrawn from the firm. The firm was dissolved on January 11, 1913, and this written agreement of dissolution was filed for record on February 28, 1913, in Hidalgo county. The first item of the account sued on is dated January 20, 1913. Ruth testified, and he was uncontradicted, that be told Mayfield, appellee’s salesman, that he and Evans had dissolved partnership before the first order was given. He said he and Mayfield had talked about the matter, and he told Mayfield that the reason he would not give him an order in December was because the firm was going to be dissolved, Evans retiring, and that when he did give the order, he told Mayfield that he had bought Evans out and therefore gave the. order himself. So the uncontradicted evidence is to- the effect that the salesman had actual knowledge of the dissolution at the time and before these items were bought. Appellee seeks to avoid the force of this by the testimony of its general manager at Corpus Christi, to the effect that the agent had nothing to do with extending credit; that all orders had to be O. K.’d by him at the Corpus Christi office, and that he had received no notice of the dissolution of the firm; that Mayfield had no authority to receive such notice so as to bind the company, because it was contrary to his instructions. The only matter we need inquire into is as to whether the notice to Mayfield was notice to the appellee or his principal. The well-known, general rule is that notice to the agent is notice to the principal. The business of this agent was to sell goods for his principal, and it was his duty, as such agent, to make known to his principal such matters as came to his knowledge in regard to his duties in transacting that business; indeed, to disclose all facts coming to his knowledge which might be necessary for the protection or guidance of his principal.

“This duty the law presumes the agent to have performed, and, according to the view now being considered, imputes to the principal whatever notice or knowledge the agent then possessed, whether he has in fact disclosed it or not.” Meehem on Agency, § 719.
“When a principal has consummated a transaction in whole or in part through an agent, it is contrary to equity and good conscience that he should be permitted to avail himself of the benefits of his agent’s participation without becoming responsible as well for his agent’s knowledge as for his agent’s acts.” Irvine v. Grady, 85 Tex. 124, 19 S. W. 1028.

Mayfield did not testify, and the uncon-tradicted evidence to the effect that he was notified of the dissolution would not be met by testimony that he had no authority to receive such notice, and that the general manager had no such knowledge, because his business was to represent his principal in selling goods and to keep his principal informed as to all matters pertaining thereto. The dissolution of a firm whereby the main man retired would certainly pertain directly to the duties of the salesman, and the law charges the principal with that knowledge which the agent, in line with his duty, ought to have communicated. This assignment and the third are sustained. Bergman Produce Co. v. Brown, 172 S. W. 558; Rodgers-Wade Furn. Co. v. Wynn, 156 S. W. 342; Fordtran et al. v. Cunningham, 141 S. W. 563.

There is nothing else in this appeal which we care to discuss. The judgment will be reversed, and the cause remanded for trial, as herein indicated.
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author: DUNKLIN, J.

text:
    SCRUGGS v. GAGE.
    (No. 8289.)
    (Court of Civil Appeals of Texas. Ft. Worth.
    Dec. 18, 1915.
    Rehearing Denied Jan. 22, 1916.)
    1. Appeal and Error @=>1050 — Review — Harmless Ebeoe.
    Where a wife claimed as her separate property an automobile sold by her husband to defendant, erroneous admission of evidence concerning the wife’s suit for divorce was harmless, where the court’s finding that the machine was the property of the wife was based on transactions occurring before the suit.
    [Ed. Note. — Eor other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. @=1050.]
    2. Husband and Wife @=202 — 'Wife’s Property — PURCHASE FROM HUSBAND — CONSTRUCTIVE Notice.
    Defendant, who purchased an automobile from plaintiff’s husband, is not charged with constructive notice of plaintiff’s suit for divorce, where at the time of the purchase citation had not been served.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 429; Dec. Dig. @=202.]
    3. Husband and Wife @=137 — Property of Wipe — Sale by Husband.
    Under Yernon’s Sayles’ Ann. Civ. St. 1914, arts. 4021 and 4622, declaring that the husband shall have sole control over his separate property and the wife over her sepax-ate property, and that the husband shall have power of disposition of the community, a husband has no authority to sell an automobile belonging to his wife.
    [Ed. Note. — For other cases, Wife, Cent. Dig. §§ 228-230; 137.] see Husband and Dec. Dig. @=
    4.Husband and Wife @=202 — Wife’s Peopeety — Sale by Husband — Bona Fide Purchasers — Presumption.
    Where defendant, who purchased fi’om plaintiff’s husband her automobile, which was bought during coverture with her funds, did not rely on the presumption that the machine was community property, but believed the husband to be unmarriedj he cannot claim as a bona fide purchaser on the theory that a purchaser from the husband only of property acquired during marriage, but with the separate property of the wife, may rely on the presumption that it was community property and be protected as an innocent purchaser.
    [Ed. Note. — For other cases, see Husband and Wife, Cent. Dig. § 429; Dec. Dig. @=202.]
    Appeal from District Court, Tarrant County ; Marvin H. Brown, Judge.
    Action by Blanche Gage against Lee W. Scruggs. From a judgment for plaintiff, defendant appeals.
    Affirmed.
    W. C. Prewitt, of Ft. Worth, for appellant. McMurray & Gettys, of Decatur, for appellee.
   DUNKLIN, J.

In a statutory suit for trial of rights of property in an automobile between Mrs. Blanche Gage, wife of W. L. Gage, as plaintiff, and Lee W. Scruggs, as defendant, a judgment was rendered in favor of plaintiff, and defendant has appealed.

The case was tried without a jury, and the trial judge filed findings of fact and conclusions of law upon which the judgment was predicated.

Briefly stated, the facts found were as follows : Early in the year 1914, Mrs. Gage and her husband agreed to a separation, but no divorce was procured. Thereafter defendant Scruggs bought the automobile in controversy, then worth $700, from W. L. Gage, husband of Mrs. Gage. At the time of such purchase the automobile was the separate property of Mrs. Gage, and prior to such sale she had instituted a suit against her husband in the county court of Wise county for the recovery of the machine, and at no time had she given her husband authority to sell it. Scruggs was not an innocent purchaser of the machine for value and without notice.

While not specifically shown in the trial judge’s findings, the following additional facts were established beyond controversy, and in support of the judgment may be presumed to have been found also: Scruggs bought the machine from W. L. Gage in Ft. Worth on the same day the suit was filed against him in Decatur by his wife to recover the machine and not more than two hours after the same was filed, paying Gage therefor $525 in cash; but no proof was offered to show that citation in that suit had then been served upon Gage. At the time of the purchase Scruggs did not know that the machine belonged to Mrs. Gage, did not know that Gage was a married man, and did not know of the institution of the suit in Decatur to recover the machine. In that suit final judgment subsequently was rendered'in favor of Mrs. Gage for recovery of title and possession of the machine.

It affirmatively appears from recitals in the court’s findings that the conclusion reached that the machine was the separate property of Mrs. Gage was based on transactions between her and her. husband, which occurred prior to the institution of her suit against her husband; hence, if there was error at all in admitting proof of the institution of the suit and of' the judgment rendered therein, such error did not harm appellant, Scruggs.

We are of the opinion further that there was sufficient evidence to sustain the findings so recited, one of which was that the automobile was purchased with funds, the separate property of Mrs. Gage, and the other was that after the purchase her husband made a gift to her of any possible interest he might have had in the machine.

But a more difficult question is presented by an assignment challenging the finding that Scruggs was not an innocent purchaser of the machine for value without notice of the wife’s title thereto. Appellee insists that Scruggs was by law chargeable with constructive notive of the pendency of the suit by Mrs. Gage against her husband for the recovery of the machine and of her claim therein asserted. This contention must be overruled because there was no proof of service of citation on the husband prior to bis sale to Scruggs. In Smith v. Cassidy, 73 Tex. 165, 12 S. W. 14, in determining the question whether Swenson in taking a mortgage upon property was chargeable with notice of a prior suit which had theretofore been filed, but in which no citation had been served upon the defendant, our Supreme Court said:

“In some of the states suits are commenced as in our own by filing a petition, and in others by issuing a writ; but without regard to the act by which the suit is commenced for other purposes it seems to be universally held that for purposes of notice by lis pendens it does not begin till service of process or its publication in case of an absent defendant. Lyle v. Bradford, 7 T. B. Mon. 512; Bennett v. Williams, 5 Ohio, 461; Goodwin v. McGehee, 15 Ala. 241; Metcalf v. Larned, 40 Mo. 575. Against such an array of authorities we should not feel inclined to oppose our unsupported opinion under any circumstances, but we see no reason to doubt their correctness upon principle. We think, therefore,' that Swenson was unaffected by any notice of this suit at the time the mortgage was executed.”

Article 4621, 3 Vernon’s Sayles’ Texas Civil Statutes, contains, among others, the following piovisions:

“All property of the wife both real and personal, owned or claimed by her before marriage, and that acquired afterwards by gift, devise or descent, as also the increase of all lands thus acquired shall be the separate property of the wife. During marriage the husband shall have the sole management, control and disposition of his separate property, both real and personal, and the wife shall have the sole management, control and disposition of her separate property, both real and personal.”

It thus appears that W. L. Gage had no lawful authority to sell to Scruggs the automobile which was the separate property of Mrs. Gage. Spe, also, Walker v. Farmers’ & Merchants’ State Bank, 146 S. W. 312, and cases there cited; Givens v. Carter, 146 S. W. 623; Ligon v. Wharton, 120 S. W. 930.

Article 4622, 3 Vernon’s Sayles’ Texas Civ. Statutes, in part, reads:

"All property acquired by either the husband or wife during marriage, except that which is the separate property of either one or the other, shall be deemed the common property of the husband and wife, and during coverture may be disposed of by the husband only, provided, however, the personal earnings of the wife, the rents from the wife’s real estate, the interest on bonds and notes belonging to her and dividends on stocks owned by her shall be under the control, management and disposition of the wife alone, subject to the provisions of article 4621, as hereinabove written.”

The two statutes referred to embody amendments enacted by the Legislature in the year 1913, and were in full force and effect at the time Scruggs bought the machine from W. L. Gage.

By article 4621, prior to said amendment, the husband was given the sole management and control of all the separate property of the wife, and article 4622 reads as follows:

"All property acquired by either husband or wife during the marriage, except that which is acquired by gift, devise or descent, shall be deemed the common property of the husband and wife, and during the coverture may be disposed of by the husband only.”

Under those former statutes a purchaser from the husband only of property which had been acquired during his marriage, but which was purchased with funds the separate property of his wife, might rely upon the presumption that the same was community property and be protected as an innocent purchaser, in the absence of actual or constructive notice of the wife’s separate interest. Assuming, for the sake of argument, that the same presumption would obtain under the amended statutes, then if Scruggs had relied on that presumption when he purchased the machine from W. L. Gage, he would be in a position to invoke the benefit of that presumption; but that he did not rely on it is shown by his own testimony as follows:

“At the time I bought the automobile I did not know anything about Gage being a married man; I had never seen him before and knew nothing about it. I did not know whether he had ever been married or not, whether he had a wife living or dead, or what not. I thought it was his car. I bought it on the representation of Dick Gage that it was his car.”

In the absence of any proof that in buying the machine Scruggs acted upon the presumption that it was the community property of W. L. Gage and wife, he is in no position to invoke the benefits of such a presumption.

The following announcement by our Supreme Court in Kempner v. Comer, 73 Tex. 196, 11 S. W. 194, decided under the former statutes, is conclusive of that question, and so far as we have been able to discover, has never been overruled by any subsequent decision of that courts

“Where the facts giving rise to the principle of protection do not exist, the principle cannot be invoked. It is conclusively shown that appellants did not act upon any presumption that the notes were community of Mrs. Fairris and her husband; they acted upon an entirely different presumption, or rather assumption; they took the notes as collateral, supposing they were correctly indorsed by the payee, without any information that the payee was the wife of T. L. Fairris or that he had indorsed them with her name. They knew nothing of any facts which would authorize a presumption of community and were not deceived in relation to such facts. They should not be credited with knowing such facts by a mere fiction when the proof is positive that they had no such knowledge. The law will not force them into the attitude of innocent and bona fide holders of the notes against the proof; it will not ■ and ■ought-not to thrust a benefit of a presumption upon them when it is affirmatively shown that the presumption had nothing to do with the transaction. A married woman’s rights ought not to be construed away by any such inequitable process of reasoning.”

For the reasons indicated, all assignments of error are overruled, and the judgment is affirmed.
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