author: HUFF, C. J. HENDRICKS, J.

text:
    BROWN et al. v. CITY OF AMARILLO.

    (No. 834.)
    (Court of Civil Appeals of Texas. Amarillo.
    Nov. 6, 1915.
    On Motion for Rehearing, Dec. 11, 1915.)
    1. Municipal Coeípoeations &wkey;>105 — Officers — Compensation — Statutory Provisions.
    Rev. St. 1911, art. 807, refers to the approval or disapproval by the mayor of a city of ordinances and resolutions adopted by the council. Article 811 provides that the city treasurer shall receive such compensation as shall be fixed by the city council. • Article 816 provides that the city council on or before die 1st day of January preceding each election shall establish the compensation or salary of officers elected or appointed by it. Hold, that the council could fix the salary of the city treasurer by resolution.
    [Ed. Note. — Eor other eases, see Municipal Corporations, Cent. Dig. §§ 223, 224; Dec. Dig. <&wkey;105.]
    2. Municipal Coepoeations <&wkey;115 — Offi-cebs — Compensation — Statutory Provisions.
    Rev. St. 1911, art. 816, requires the city council on or before the 1st day of January preceding each election to establish the compensation of officers elected or appointed by it. An ordinance adopted in 1902 required the city at the first regular meeting after each general election to fix the compensation and fees of all city officers for the next ensuing term, and such compensation to remain in force until changed, and that such compensation might he fixed by an order spread upon the minutes. An ordinance adopted in 1904 provided that the city secretary should receive for performing the duties of city treasurer certain commissions on moneys received and disbursed. A resolution adopted December 31, 1909, provided that for the ensuing term the salary of the city secretary and treasurer was fixed at $10 a month “and fees as set by ordinance” up to $2,000 per annum, and that any amount exceeding $2,000 per annum should he paid into the city treasury. Held, that the resolution did not repeal the ordinance specifying the commissions to be paid the secretary and treasurer, as, in view of the statute, that ordinance was not temporary and ceased to operate at the expiration of the tertn, especially where the council acted by again fixing the compensation.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 266%, 267; Dec. Dig. <&wkey;>115.]
    3. Municipal Coepoeations &wkey;>124 — Officers — Compensation — Statutory Peo visions.
    The resolution complied with the statute by fixing the amount of the fees and compensation to which the secretary and treasurer was entitled, as the computation of the commission was not changed except as the amount was limited, and if the ordinance had expired the resolution was clear and unambiguous as to the amount the secretary and treasurer should receive, while, if it merely limited the amount to be received out of the commissions allowed the secretary and treasurer, the council had the right for the ensuing term to fix a less amount than the maximum which might accrue under the ordinance.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 290-297; Dec. Dig. i&wkey;>124.]
    4. Municipal Coepoeations &wkey;5l62 — Offi-cees — Compensation — Construction of Resolutions — 1 ‘Eee. ’ ’
    The salary and fees which the resolution provided should not exceed $10 a month and fees not to exceed $2,000 included commissions, as the primary meaning of the word “fee” includes compensation in the nature of commissions.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dee. Dig. <&wkey;162.
    Eor other definitions, see Words and Phrases, Eirst and Second Series, Eee.]
    5. Statutes <&wkey;219 — Construction — Practical Construction.
    While the construction placed upon a statute by the officers whose duty it is to execute it is entitled to consideration, the courts are not bound to accept sucb construction when the act is clear and unambiguous.
    [Ed. Note. — For other cases, see Statutes, Cent. Dig. §§ 296, 297; Dec. Dig. <S=»219.]
    6. Municipal Coepoeations &wkey;*162 — Officers — Compensation — Approval of Reports.
    Under Rev. St. 1911, art. 81Í, providing that the city treasurer shall make payments of moneys belonging to the city upon the order of the mayor attested by the secretary, where a city secretary and treasurer made reports to the city council showing commissions on moneys received and disbursed in excess of the amount to which his commissions were limited by ordinance and resolution, the approval of such reports did not indicate an intent to allow him the entire commissions unless they were paid by him on the order of the mayor properly attested and reported as so paid, as otherwise the council would not necessarily know that he intended to appropriate all of such commissions to his individual use.
    [Ed. Note. — Eor other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. <&wkey;162.]
    7. Municipal Corporations <&wkey;>162 — Recovery Back — Mistake of Law.
    Under Rev. St. 1911, art. 811, providing that the city treasurer shall make payments of the city’s money upon the order of the mayor attested by the secretary, and that no order shall be paid unless it shows upon its face that the city council has directed its issuance and for what purpose, where a city treasurer did not pay to himself upon the order of the council commissions in excess of those to which he was entitled, but simply retained them from money received by virtue of his office, there was no payment of the money by the city under a mutual mistake of law so as to prevent recovery by the city.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. <&wkey;>162.]
    8. MUNICIPAL CORFORATIONS &wkey;>162 — OFFICERS — COMPENSATION—Payment.
    If an ordinance and resolution of a city council did not warrant a payment to the city treasurer of certain commissions claimed by him, the mayor could give no order therefor under Rev. St. 1911, art. 811.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 357-367, 369, 372, 374; Dec. Dig. &wkey;162.]
    9. Municipal Cokpobations @=>173 — Offi-cebs — Liability op Subeties.
    Rev. St. 1911, art. 800, provides that when the term for which any city officer was elected or appointed has expired he shall deliver to his successor all books, papers, and fixtures pertaining to his office. A resolution of a city council provided that the city treasurer should receive fees fixed by ordinance up to $2,000 and that any amount exceeding $2,000 should be paid into the city treasury. Séld that, under a bond conditioned that the treasurer would faithfully receive and disburse all moneys belonging to the city in accordance with the laws of the state and the ordinances of the city, he and his bondsmen were liable for any sum retained by him as commissions above the amount allowed him, though the resolution only fixed his salary and did not require any disbursement of the money, as the law made it Ms duty to turn it over to his successor.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 399-409; Dec. Dig. &wkey;173J
    10. Municipal Cokpobations @=>172 — Offi-cebs — Duty to Turn Over Funds to Successor.
    Under Rev. St. 1911, art. 800, an outgoing city treasurer is required to turn over funds belonging to the city and is liable in a civil suit in case of failure as well as for other penalties.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 396-398; Dec. Dig. &wkey;172J
    11. Municipal Corporations &wkey;>173 — Officers — Actions on Bonds — Evidence.
    In an action on a city treasurer’s bonds which were substantially set out in the original petition and the execution of which was admitted by the answers, there was no injury or error in admitting them in evidence.
    [Ed. Note. — For other eases, see Municipal Corporations, Cent. Dig. §§ 399-409; Dec; Dig. &wkey;173J
    12. Appeal and Error <&wkey;1045 — Harmless Error — Challenges to Jury.
    The refusal to allow a peremptory challenge to the jury, if error, was harmless, where the court took the case from the jury and instructed a verdict.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. •§§ 4124-4127; Dec. Dig. <&wkey;> 1045.]
    On Motion for Rehearing.
    13. Municipal Corporations <&wkey;120 — Ordinances — Construction — Practical Construction.
    An ordinance provided that the city secretary as city treasurer should receive certain commissions on moneys received and disbursed and that the city secretary acting as treasurer should not be entitled to any commissions for receiving moneys from his predecessor or paying them to his successor. A resolution subsequently passed provided that the salary of the city secretary and treasurer for the ensuing term was thereby fixed at $10 a month and fees “as set by ordinance” up to $2,000 per annum. No other ordinance setting up any fees for such officer acting in the dual capacity of secretary and treasurer was disclosed in the record. Held, that, even though there were other ordinances prescribing and designating fees referable to Ms position as city secretary, he had to refer to the ordinance in question to obtain a rate for his compensation so far as his revenue derivable from the collection and payment of moneys was concerned, and the resolution evidently referred to the same ordinance, and hence there was no ambiguity authorizing a resort to an executive interpretation of the meaning of the resolution.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 274r-280; Dec. Dig. @=>120.]
    14. Municipal Corporations @=>173 — Officers — Liability of Sureties.
    Where a city secretary and treasurer executed separate bonds as secretary and as treasurer, if bé as treasurer permitted himself as secretary to receive and retain as commissions an amount to which he was not entitled, the treasurer and his bondsmen were liable, as he as secretary necessarily received and retained the money from himself as treasurer, and as treasurer he had no lawful justification for permitting this.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 399 — 409; Dec. Dig. @=>173.]
    Appeal from District Court, Potter County; Jas. N. Browning, Judge.
    Action by the City of Amarillo against Sam J. Brown and others. Judgment for plaintiff, and defendants appeal.
    Affirmed.
    Cooper & Merrill, of Houston, and Lump-kin & Harrington, of Amarillo, for appellants. Crudgington & Works and J. B. Dooley, all of Amarillo, for appellee.

      Application for writ of error pending in Supreme Court.

   HUFF, C. J.

This suit was instituted by the city of Amarillo against Sam J. Brown, as city secretary and treasurer, and upon his official bond as such, with B. T. Ware, W. M. Lay, and Louis Anthony as sureties thereon.

The assignments in this case assail the action of the trial court in overruling certain exceptions to the plaintiff’s petition, and in sustaining certain exceptions to the appellants’ answer; and also assignments assailing the action of the court in instructing a verdict for the appellee, the city of Amarillo. In considering the case we shall not notice the several assignments in the order named with reference to the action of the courts ruling upon the pleadings, but believe that tlie case will be sufficiently understood by stating the salient facts in the case.

At the time of the transactions complained of in the petition in this case, it appears from the pleadings and admissions in the pleadings that the city of Amarillo was incorporated as a city under the general laws of the state of Texas, and that appellant Sam J. Brown was elected city secretary and treasurer on the 9th day of April, 1910, and shortly thereafter qualified as such. The city secretary and treasurer is substantially admitted by the pleadings in this case to have been combined in one office, but the officer executed two bonds, one as city secretary and one as treasurer. It is alleged, and the facts are substantially uncontroverted, that during the term of office of Sam J. Brown, from April, 1910, until April, 1911, Sam J. Brown for the year received and appropriated the sum of $5,414.58, claimed as due him for salary, fees, and commissions from April 21, 1910, to April 21, 1911. From April 21, 1911, to April 21, 1912, he received the sum of $4,947.31, claimed to be due him for salary, fees, and commission. It is alleged that he retained $6,121.89 more than was due him for such services. The facts are practically uncontroverted and admitted that he received such sums of money, he contending under the city ordinances that he was entitled to said sums of money by virtue of his office. The controversy and the rights of the parties depend upon the construction of the following ordinances:

Ordinance No. 61, approved the 27th day of March, A. D. 1902, found on page 52:

“Ordinance No. 61. An ordinance ‘amending ordinance No. 6,’ entitled ‘An ordinance fixing 1 lie compensation and fees of the various officers of the city of Amarillo.’
“Be it ordained by the city council of the city of Amarillo: That Ordinance No. 6 of said city bo and is hereby amended by adding thereto sections 7 and 8 which shall read as follows: Section 7. It shall be the duty of the city council at the first regular meeting after the next general election for oflicers of said city, or as soon thereafter as practicable, and at the first regular meeting after each succeeding general election for officers of said city or as soon thereafter as practicable, to fix the compensation and foes of all the officers of said city, for the next ensuing term; and the compensation so fixed by the council, shall remain and be in force until modified or changed by the council under the provisions of this ordinance; provided that no ordinance shall be required to be passed in fixing said compensation, but the same may be done by an order of said council, spread upon its minutes, fixing the amount of said compensation and fees of the officers of said city.”

Ordinance No. 100, approved the 12th day of April, 1904, which is as follows:

“Ordinance No. 100. An ordinance amending section 12 of Ordinance No. 2, entitled ‘An ordinance providing for the appointment of a city secretary of the city of Amarillo and defining the powers and duties of said office.’ Be it ordained by the city council of the city of Amarillo :
“Section 1, That section 12 of Ordinance No. 2, entitled 'An ordinance providing for the appointment of a city secretary for the city of Amarillo, and defining the powers and duties of said office,’ be amended so as to read as follows : Section 12. As compensation for performing the duties of city treasurer, the city secretary shall receive a commission of 2% per cent, of all moneys received into the city treasury and shall' receive a like sum for paying out the same, excepting any monies received or disbursed on account of the sale of bonds or collected or disbursed for school purposes, on each of which his commission shall be one per cent, for collecting and the same for disbursing, and further excepting any loans or investments that may be made of the interest and sinking fund and receiving the same back into the treasury, on which his commission shall bo one-half of one per cent, for disbursing and the same for receiving such investment back into the treasury ; but the city secretary acting as treasurer, shall not be entitled to any commissions for receiving any moneys from his predecessor nor for paying over the same to his successor.”

Resolution passed December 31, 1909, as follows :

“Moved by McKnight, seconded by Person, that the salary of the city secretary and treasurer for the ensuing term be fixed at $10.00 per month and fees as sot by ordinance, up to $2,-000.00 per annum, any amount exceeding $2,-000.00 to be paid into the city treasury. Motion carried.”

Sam J. Brown executed a bond to the city of Amarillo, with B. T. Ware, M. W. Lay, and Louis Anthony as sureties thereon, in the sum of $80,000, with the following condition:

“The condition of the above obligation is such that, whereas, the above bounden was on the 9th day of April, 1910, duly elected to the office of treasurer, in and for the city of Amarillo, in the state of Texas: Now therefore, if the said Sam J. Brown shall faithfully perform and discharge all the duties required of him by law and ordinances of said city as treasurer, aforesaid, and shall faithfully receive and disburse all monies belonging to said city in accordance with the laws of the state of Texas, and ordinances of said city of Amarillo, Texas, then this obligation be void, otherwise to remain in full force and effect.”

The bond is dated the 20th day of April, 1910; and also a bond with the same sureties, in the sum of $1,000, conditioned as follows :

“The condition of the above obligation is such that whereas, the above bounden was, on the 9th day of April, 1910, duly elected to the office of city secretary in and for the city of Amarillo, in the state of Texas: Wow, therefore, if the said Sam J. Brown shall faithfully perform and discharge all the duties required of him by law and the ordinances of said city as city secretary aforesaid, then this obligation to be void; otherwise to remain in full force and effect.”

This bond is also dated the 20th day of April.

.The record in this case presents the question of authority by the city council to fix the salary of the city secretary and treasurer, on the date and in the manner appellee claims it was fixed. The salary and fees of that officer were fixed by resolution on the 31st day of December, 1909. By article S16, R. C. S., it is provided:

“The city council shall, on or before the first day of January next preceding each and every election, * * establish the compensation or salary to be paid to the officers elected or appointed by the city council” — which shall not be changed during the term of office.

Article 811, R. C. S., provides that the treasurer shall receive such compensation as shall be fixed by the city council. Article 807, R. C. S., clearly evidences that the council may act by resolution as well as by ordinance. The general law under which the city was acting, and which confers upon the council the power to fix the salary, does not require that body to act therein in any particular manner. It is simply provided that the compensation be fixed before the 1st day of January next preceding “each and every election.” We believe any form which the council might adopt in performing this duty so as to express its decision as to what the salary or compensation shall be would comply with the statutes. City of Green Bay v. Brauns, 50 Wis. 204, 6 N. W. 503; Dillon on Municipal Corporations, vol. 2, § 572; Waco v. Prather, 90 Tex. 80, 37 S. W. 312; Tyler v. Jester, 97 Tex. 344, 78 S. W. 1058; Brummer v. Galveston, 97 Tex. 93, 76 S. W. 428; Board of Education v. De Kay, 148 U. S. 591, 13 Sup. Ct. 706, 37 L. Ed. 573; Hart v. City of Minneapolis, 81 Minn. 476, 84 N. W. 342; Blanchard v. Bissell, 11 Ohio St. 96, on page 103; Alma v. Bank, 60 Fed. 203, 8 C. C. A. 564.

It is contended by appellant that the resolution of December 31, 1909, in effect repealed Ordinance 100, dated April 12, 1904, which allowed as compensation to the city treasurer and city secretary 2% per cent, for money received into the treasury and a like amount for paying it out, except moneys received or disbursed on account of the sale of bonds or collected or disbursed for school purposes, on each of which his commission should be 1 per cent, for collecting and disbursing, etc. It is asserted that an ordinance cannot be repealed by' a resolution; that in order to repeal an ordinance it must be done by any act of equal dignity. This we think cannot be and is not denied; but it is the settled rule of construction in this state. City of San Antonio v. Micklejohn, 89 Tex. 79, 33 S. W. 735. The resolution above referred to fixed the compensation for the officer for the term next succeeding its date. Ordinance 100, relied on by appellant, must, in its nature, have been temporary in the light of the statutes which authorized it. Blanchard v. Bissell, 11 Ohio St. 103. The statutes require that the fees, etc., be fixed, “next preceding each and every election.” Ordinance 61 also declared it to be the duty of the city council “after each succeeding general election, for officers of said city, or as soon thereafter as practical, to fix the compensation and fees of all officers for the next ensuing term; and the compensation so fixed by the council shall remain and be in full force until modified or changed by the council under the provisions of this ordinance, provided that no ordinance shall be required to be passed in fixing said compensation the same shall be done by an order of said council spread upon the minutes fixing the amount of said compensation and fees of the officer of said city.” It was clearly the purpose of the Legislature, as well as the city council, that the act fixing the compensation of officers should be for one term, and that at the end thereof the duty devolved upon the city council to fix for the ensuing term the compensation of the officers. It may be if this was not done the presumption should prevail that the prior provision for fees was intended to prevail for the ensuing term; but, where by resolution or order the fees are fixed, no such presumption should prevail. The council, by ordinance No. 61, announced a permanent policy and declared such fees should be fixed by an order entered for each succeeding term. Ordinarily an ordinance is in its nature a continuing regulation, but how can an ordinance in face of the statute, requiring the city council to fix the salary before each and every election, be a continuing regulation? At the expiration of the term its function has ceased; especially is this true if the council acted. If the city council acts under the power granted, then there is no necessity to repeal an ordinance which has ceased to possess vitality, by virtue of the city’s charter. The law limiting the purpose and time for which it was enacted itself has repealed it, or rather annulled its force and effect as an ordinance.

“If an ordinance contains a clause which prescribes a definite period for its operation, then it will expire of its own limitation.” 28 Cyc. 388, Expiration, 2 note, 95.

The law, which is the charter, for the city, of necessity became part of the ordinance, and it limits the time for fixing salaries.

“It is well settled,” says Chief Justice Marshall, “that an offense against a temporary act cannot be punished, after the expiration of the act.” The Irresistible, Daniels Claimant, 7 Wheat. 551, 5 L. Ed. 520.

So we take it a recovery cannot be had under a temporary ordinance fixing compensation for a term six years previous to the one by virtue of which the commissions were claimed to have been earned. In the ease of City of Uvalde v. Burney, 145 S. W. 311, Judge Ely, speaking for the court, said:

“Article 569 (now 816, R. C. S.), invoked by appellant, nullifies that ordinance by requiring that the salaries of officers shall be fixed at a certain time before each election. The ordinance could not, therefore, have existed more than ■ two years.”

The resolution, upon which appellee relies, fixed the maximum sum to be received by-the secretary and treasurer, and did not affect the method of calculating the commission which may be paid on the receipt of certain moneys, by Ordinance 100. The resolution complied with the statute, by fixing the amount of the fees and compensation to which the secretary and treasurer was entitled. The computation of the commission was not changed except in so far as it limited the amount. If Ordinance 100 had expired by reason of tbe time for wbicb it was permitted to be operative by virtue of tbe statute, then the resolution was clear and unambiguous as to tbe amount tbe secretary and treasurer should receive; and we believe, if it merely limited tbe amount to be received out of the commissions allowed tbe secretary and treasurer on funds coming into bis bands, the council then bad tbe right for tbe ensuing term to fix a less amount than tbe maximum, which might accrue, under Ordinance 100. The city could do this by any method authorized by the charter, which, as seen, the city could do by resolution. McFall v. City of Austin, 1 White & W. Civ. Cas. Ct. App. §§ 450, 452. This did not repeal Ordinance 100, but fixed the compensation at an amount less than the maximum that might be ascertained by calculation thereunder. In the case of Blanchard v. Bissell, supra, taxes were levied by an ordinance, and it was there said:

“Beside, we are not aware of any provision in the statute which requires a town council to levy taxes solely by ordinance. Such an act, by whatever name it may be called, is properly in the nature of a resolution. It is of a temporary character, and prescribes no permanent rule of government. And though clothed in the forms of an ordinance, it may well have the effect of a resolution without the signature of the presiding officer.”

See, also, City of Belton v. Head, 137 S. W. 417.

Appellants appear to make the contention that salary and fees, which the resolution provided for, that is, should not exceed $10 per month salary, and fees not to exceed $2,000, did not include commissions. These terms have been held in this state to include commissions, and that the primary meaning of the word “fee” includes compensation in the nature of commissions. Austin v. Johns, 62 Tex. 179; Ellis County v. Thompson, 95 Tex. 22, 64 S. W. 927, 66 S. W. 48; Navarro County v. Howard, 129 S. W. 857. In our judgment there was no ground for uncertainty in the resolution, for the reasons above suggested. It is not at all reasonable that the city council intended and interpreted the resolution as giving to the city secretary and treasurer $2,120 annually, as a salary and fees, and in addition thereto $2,000 or $3,000 more for commissions on receiving and paying out moneys.

It is also urged that the court was in error in striking out that part of the appellant’s answer, setting up the approval of his accounts, etc., as evidencing the interpretation placed on the ordinance and resolution by the council with reference to the compensation of Brown. We recognize the rule that the construction placed upon a statute by the officers whose duty it is to execute it is entitled to consideration, but courts are not bound to accept such construction when the act is clear and unambiguous. This rule should be confined to those cases in which the meaning is really doubtful. We can see no doubt as to the amount of salary and fees the city secretary and .treasurer was to receive under the resolution. It is clear and plain. It was the law governing that office when appellee Brown was inducted into office. Ilis compensation was not changed thereafter. He must have known under that resolution what he was to receive. There was no act giving him more, and the city council had no right to pay or allow him more, if they did so. Dillon on Municipal Corporations, § 422, vol. 1 (5th Ed.). It is not alleged by appellants in their answer that Brown paid these sums of money upon an order by the mayor, attested by the secretary to himself as treasurer. The substance of the allegation appears to be that he made his reports, showing such commissions, which reports where approved, and the city thereby acquiesced in and placed thereby the construction that the resolution only covered fees and salary, and not commissions as treasurer. It is therefore inferred the city council gave the resolution the interpretation contended for by appellants. The treasurer could only make payments upon the order of the mayor attested by the city secretary, under the law of the corporation. Article 811, R. O. S. These commissions are not alleged so to have been paid. The reports might, and properly did, show the commissions going to the treasurer; yet the city council would take such commissions and other fees into consideration in ascertaining if the secretary and treasurer should receive the maximum allowed, $2,120. They would not necessarily know that by the report it was intended by Brown to appropriate all the commissions by the treasurer to his individual use. We therefore think, in order to show that the city council intended to allow Brown the entire commissions, it should be alleged and also shown that the same was paid upon the order of the mayor and properly attested and reported as so paid upon the order of the proper officers to Brown.

Appellants also contend that the city paid to Brown the money under a mutual mistake of law, and for that reason cannot recover it. The facts do not warrant the finding of any such payment; on the contrary, it is conclusive from the evidence that the money was received by Brown by virtue of his office, and that he simply retained the same, claiming it as part of his compensation and as we think without any order authorizing him to do so. In order to sustain appellants’ contention, it should be shown that it was paid upon the order of the council. Article 811 provides:

“No order shall be paid unless said order shall show upon its face that the city council has directed its issuance, and for what purpose.”

So, if the ordinance and resolution did not warrant the payment, the mayor could give no order therefor and there was no direction by the council for its payment. Brown received the money in trust, and under the law it was his duty to faithfully hold the same and deliver it to the city at the expiration of his term of office. It is also contended that the sureties are not liable on the treasurer’s bond for the reason that the condition of the bond required him only to “faithfully receive and disburse all moneys belonging to the said city, in accordance with the laws of the state of Texas, and the ordinances of the city of Amarillo”; that he was not required to disburse according to a resolution. The laws of the state required him to execute a bond for the faithful discharge of his duties and in such form as should be required by the city council. If the money so retained was not his, then he could not keep it without violating the laws of the state. The resolution did not require any distribution of the money, but only fixed his salary; hence the condition of the bond was not affected thereby further than it may have incidentally shown what amount he could retain. Article 800, R. C. S., clearly requires an outgoing officer to turn over funds belonging to the city, which had been intrusted to his custody as such, and he is liable in a civil suit in case of failure as well as for other penalties. The law therefore clearly made it Brown’s duty to turn over the funds, and the bondsmen guaranteed he would do so. They will not therefore be relieved of that duty, simply because he contends the resolution was ineffective to fix his compensation. If, as we hold, this resolution limited the compensation which he was to receive, was passed in accordance with the law, then he and his bondsmen are liable for whatever sum was retained above the amount so allowed him. Wilson v. Wichita County, 67 Tex. 649, 4 S. W. 67.

The appellants assign as error on the part of the court in admitting in evidence the bonds, over their objection. The bonds were sued upon and substantially set out in the original petition, and the appellants, by their answers, admitted executing them. There could have been no injury or error in admitting them in evidence.

The sureties also assign error in that the court did not allow them their peremptory challenge to the jury. If this was an error, which we do not decide, it was harmless. The trial court took the case from the jury, and instructed a verdict.

We believe the judgment of the trial court should be affirmed, and it is, accordingly, so done.

On Motion for Rehearing.

HENDRICKS, J.

The appellants, Brown and the sureties upon his official bond as city treasurer, are insistent, upon their motions for rehearing, for an executive interpretation of the meaning of the resolution fixing the salary and fees as emoluments of his office, as an essential element in this case, and that they should have been permitted to have gone to the jury, by virtue of their pleadings, upon that question.

Referring again to section 12 of Ordinance No. 2, as amended, exhibited in the preliminary part of the original opinion, the same provides a compensation to the city secretary, for performing the duties of city treasurer, upon a commission basis, at different rates, on account of different funds, as prescribed in said ordinance. The closing sentence of said ordinance is:

“ * * * But the city secretary acting as treasurer, shall not be entitled to any commissions for receiving any moneys from his predecessor, nor for paying over same to his successor.”

This ordinance clearly exhibits at least the duality of performance by the city secretary of the duties of the city treasurer. The resolution passed December 31, 1909, providing that “the salary of the city secretary and treasurer, for the ensuing term be fixed at $10.00 per month and fees, as set by ordinance, up to $2,000.00 per annum, any amount exceeding $2,000.00 to be paid into the city treasury,” evidently refers to amended section 12, of Ordinance No. 2, above mentioned. There is no other ordinance disclosed in this record, setting up any fees for this officer acting in a dual capacity. Amended section 12, of said ordinance, is unlimited in its nature as to the particular commissions applied to the separate funds, for which he was to receive compensation. The resolution of 1909, in connection with said amended ordinance, clearly and unambiguously means that the fees, as set by that ordinance, according to the compensation upon a commission basis, shall not exceed a certain amount. If upon the basis of 2]4 per cent, as applied to certain funds, and 1% per cent and one-half of 1 per cent, as applied to other funds, the commissions, in connection with the other fees of his office, did not amount t.o as much as the maximum prescribed by the resolution, Brown was entitled to the same; but if, all combined, it was exceeded, the fees and commissions belonged to the city. In other words, the commissions mentioned in the ordinance in connection with the language “fees as set by ordinance” are comprehended within the term “fees,” which it may be, in connection with other fees, as an officer, would be the source of his revenue, not to exceed, however, as city secretary and treasurer, the amount of the resolution. If there are other ordinances which prescribe and designate fees referable to his position as city secretary, che «ame are not shown in the record; if they were so exhibited, we do not think it would militate against the construction. Brown has to refer to amended section 12 of Ordinance No. 2 to obtain a rate for his compensation, in so far as his revenue derivable from the collection and payment of moneys is concerned, and the resolution evidently refers to the same ordinance for his “fees as set by ordinance” for the same rate, as applied to commissions. There is no ambiguity.

A great deal is said in the argument of the appellants’ sureties, on their motion for rehearing, that no breach of the treasurer’s bond is shown. We wholly disagree with that contention. The pleading is clear in stating that Brown in receiving and retaining an excessive amount over the maximum prescribed by the resolution of 1909, and the failure to pay over the same, constitutes a breach of the bond as treasurer, when read ns a whole. This resolution prescribed the •amount that he was to receive as city secretary and city treasurer. If Brown, as. city treasurer, when he received the moneys of the city permitted Brown, as city secretary, to also receive and retain an excessive amount prescribed by law, the treasurer is certainly liable, and his bondsmen likewise. In order for Brown, as secretary, to receive .and retain this money, he necessarily received and retained it from Brown as city treasurer, and the city treasurer had no lawful justification for permitting it under the authorities.

Both motions are overruled.
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source: Caselaw Access Project

author: WILLSON, C. J.

license: Public Domain

text:
    RED RIVER NAT. BANK v. SPROLES et al.
    (No. 1497.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 4, 1915.)
    1. Appeal and Error <@=1010— Review — Findings.
    A finding of fact by the trial court if supported by any evidence will not be disturbed on appeal.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3979-8982, 4024; Dec. Dig. <¿=1010.]
    2. Landlord and Tenant <&wkey;262 — Landlord’s Lien — Furnishing oe Supplies.
    Evidence held to warrant a finding that a ’landlord furnished his tenant with necessary supplies for himself and teams so as to make a ■crop creating a lien in his favor; the merchant who furnished the supplies looking solely to. the landlord for payment.
    [Ed. Note. — For other cases, see Landlord and Tenant, Cent. Dig. §§ 955,- 969, 1049-1058; Dec. Dig. &wkey;>262.]
    Appeal from Red River County Court; ■Geo. Morrison, Judge.
    Action by the Red River National Bank .against C. W. Sproles and others. From the judgment, plaintiff appeals.
    Affirmed.
    This suit was by appellant against appellee Sproles and one A. H. Teenor, also an ap-pellee. As against Sproles appellant sought and recovered judgment for $239.99, the sum due on a promissory note in its favor made by Sproles February 7, 1914, and due October 1, 1914. As against both Sproles and Teenor appellant sought a foreclosure of the lien' of a mortgage on certain cotton grown by Sproles on land he had leased from said Teenor for said year 1914, given by Sproles to secure the payment of the note.
    In his answer Teenor alleged that the cotton in question was grown on land rented by him to Sproles for the year 1914, that by the terms of the contract between him and Sproles he (Teenor) was entitled to one-fourth of the cotton as rent, and that he had a landlord’s lien on the remainder thereof to secure $262.85 due him by Sproles for supplies furnished to said Sproles to enable him to make, secure, and gather the crop grown on the land.
    The trial court determined that Sproles was indebted to Teenor for rent and for provisions and supplies furnished him to enable him to make, etc., the crop, in the sum of $175.20, rendered judgment in his favor for that sum, and at the same time foreclosed a landlord’s lien found to exist in his favor against the cotton in controversy. The lien of appellant’s mortgage by the terms of the judgment also was foreclosed, but subject to -Teenor’s claim, which the court determined should be first paid in full out of the proceeds of a sale of the cotton then ordered by him.
    Kennedy & Robbins, of Clarksville, for appellant. Chambers & Black, of Clarksville, for appellees.
   WILLSON, C. J.

(after stating the facts as above).

We are of opinion the judgment should not be reversed on any of the grounds relied upon in appellant’s brief. The main contention is that the finding by the court that Teenor had a landlord’s lien as determined by the judgment is against the preponderance of the evidence. Whether that is true or not we will not undertake to determine. If there was evidence sufficient to support the court’s finding, the fact that there may have been evidence which to our minds would more strongly have supported a contrary finding is not a reason why we should set aside the judgment. It was for the trial court, and not this court, to settle the conflict in the evidence.

As a witness in his own behalf Teenor testified that he rented the land on which the cotton in controversy was grorwn to Sproles for one-fourth thereof; that Sproles was wholly unable to furnish himself, am*, that he (Teenor) agreed to and did furnish him “with groceries for himself and family and feed for his teams”; that he arranged with Lawrence Smith, a member of the firm of Henry & Smith, merchants—

“to let Mr. Sproles (quoting from his testimony) have groceries, and they were to be charged to me by him. I was to get these groceries at cash prices and was to pay the firm 10 per cent, interest on all accounts. They would not sell feedstuffs on this basis. _ So I had either to pay cash as they were obtained or at the end of every 30 days, and this I did.”

We think this testimony set out above warranted, the finding by the trial court that it was Teenor, and not Henry & Smith, who furnished the supplies to Sproles, and that, according to the agreement between Teenor and Lawrence Smith, the latter’s firm was to look solely to Teenor for payment for the supplies furnished, and therefore conclude that the finding that Teenor had a landlord's lien as determined by the judgment was not without support in the evidence.

The judgment is affirmed.
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author: HIGGINS, J.

text:
    CITY OF EL PASO v. WILEY.
    (No. 486.)
    (Court of Civil Appeals of Texas. El Paso.
    Nov. 24, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1. Appeal and ERrob &wkey;>1039 — Land—Title bt Limitation — Harmless Error.
    Where, in an action by the city of El Paso to try title to a strip of ground alleged to be part of a street, the jury found that defendant had acquired title by imitation prior to the taking effect of Rev. St. 1911, § 5683, providing title by adverse possession cannot be acquired to any part of a lot, street, etc., an issue which had been raised as to dedication and record title became immaterial, and the errors assigned in respect to such issues, were rendered harmless.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4075-4088; Dec. Dig. <&wkey; 1039.]
    2. Trial <&wkey;296 — Instructions—Burden oe Proof — Cure of Error.
    On the submission in such action of the issue of limitation, “Do you find from a preponderance of the evidence that defendant * * * has had continuous possession and adverse possession * * * for a period of ten years? * * * ” ■ the requirement with respect to preponderance of the evidence sufficiently imposed the burden of proof on defendant, thereby curing the failure to instruct directly that the burden of proof was upon defendant to establish his title by limitation.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 705-713, 715, 716, 718; Dec. Dig. &wkey; 296.]
    3. Appeal and Error &wkey;>1050 — Evidence-Harmless Error.
    The admission of evidence offered by defendant relevant only to an issue not submitted was not reversible eiTor, where it was not apparent that plaintiff was injured by its admission.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1068, 1069, 4153-4157, 4166; Dec. Dig. <©^1050. ]
    4. Adverse Possession &wkey;>7 — Grant bx State — Patent—Failure to Issue — Effect.
    In an action to try title, it appeared that the state, by an act of the Legislature of 1858, relinquished the premises to a grantee, but the patent therefor was not issued until 1887. Held, that title passed under the former act, so that limitation could begin running against plaintiff; the fact that a formal patent did not issue until the year 1887 being immaterial.
    [Ed. Note. — For other cases, see Adverse Possession, Cent. Dig. §§ 2A-42; Dec. Dig. <&wkey;7.]
    5. Trial &wkey;j244, 260 — Instructions — Requests — Adverse Possession.
    In action to try title to land, where the defense was title by limitation, a charge directing the jury to find against defendant on such issue if he absented himself from the property during the period covered by his plea of limitation was rightly refused, where the subject-matter was fully covered by the general charge, and an issue submitted, and the charge requested gave undue prominence to plaintiff’s contention that defendant’s possession had not been continuous.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 577-581, 651-659; Dec. Dig. &wkey;244, 260.]
    Appeal from District Court, El Paso County; Dan M. Jackson, Judge.
    Action by the City of El Paso against W. W. Wiley. Judgment for defendant, and plaintiff appeals.
    Affirmed.
    Jos. M. Nealon, Yolney M. Brown, M. W. Stanton, R. C. Walshe, W. B. Ware, and J. H. McBroom, all of El Paso, for appellant. Wallace & Gardner and A. J. Robertson, all of El Paso, for appellee.
   HIGGINS, J.

This is an action in trespass to try title brought by the city of El Paso against Wiley to recover a tract of land 70 feet wide by 270 feet and 8 inches long, alleged.to be a part of Oregon street, in said city, and bounded on the north by Seventh street. The case was tried before a jury, and in response to special issues it was found that the property in controversy had never been dedicated by its owner as a public street or highway; that Wiley had been in peaceable, adverse, and continuous possession thereof for the full period of ten years next prior to July 4, 1887; that prior to said date his possession had never been interrupted or disturbed; and that there was never a time when he was not in possession of same in person or by some one for him. Upon these findings judgment was rendered in defendant’s favor.

Various errors assigned relate to the issue of dedication and its acceptance, and of the refusal of the court to peremptorily instruct that the record title was vested in the city. The jury found facts establishing that Wiley acquired title by limitation prior to July 4, 1887, upon which date the act of March 17, 1887 (article 5683, Revised Statutes) became effective. In view of this finding, the whole issue of dedication and of the record title became immaterial and error, if any, in respect thereto, becomes harmless. Hill v. Hoeldke, 104 Tex. 594, 142 S. W. 871, 40 L. R. A. (N. S.) 672; Steger v. Barrett, 124 S. W. 174. Assignments 1, 2, 3, 4, 5, 6, 7, 8, 9, 11, and 19 are therefore overruled.

Under the tenth and twelfth assignments, it is asserted the court erred in failing to instruct that the burden of proof was upon Wiley to establish his title by limitation.

The court submitted the issue of limitation in these words:

“Do you find from a preponderance of the evidence that the defendant, W. W. Wiley, has had continuous, peaceable, and adverse possession without interruption or break, as same is defined to you above, cultivating, using, and enjoying said premises for a period of ten years to the date, if any, named by you in answer to question No. 4 ?”

Tiie requirement with respect to the preponderance of tlie evidence sufficiently imposed tlie burden of proof upon defendant Stooksbury v. Swan, 85 Tex. 503, 22 S. W. 963.

The thirteenth, fourteenth, fifteenth, sixteenth, seventeenth, and twentieth assignments relate to the action of the court in admitting certain evidence, to wit, a letter written by the assistant city attorney to Wiley in December, 1908, calling his attention to the fact that some months before the city required the building of a sidewalk on 70 feet of his property on Seventh street, the same referring to the north end of the property in controversy, and advising that proceedings would be taken against him in accordance with tlie charter provisions if he did not construct the sidewalk; also the tax rolls of the city of El Paso for the years 1892-9G, showing the assessment by Wiley of the property for taxation by the city and the amount of such taxes; also tax receipts for years 1893-96, showing payment of taxes thereon to the city; also of certain building permits.

Defendant had pleaded an estoppel in bar of a recovery by the city, and this evidence was evidently admitted in support of this plea. No such issue, however, was submitted to the jury and apparently the evidence was irrelevant to any other issue in the case. But it is not apparent that plaintiff was injured by its admission, and it will not operate to reverse the case. Rule 62a (149 S. W. x); Railway Co. v. Hume, 87 Tex. 211, 27 S. W. 110, and other cases cited; 1 Michie, Ency. Dig. 807.

Under the eighteenth assignment it is urged that, inasmuch as the state did not part with its title to the land in controversy until it was patented on May 4, 1887, limitation did not begin to run against the city until that date, and therefore defendant could not have acquired title by limitation prior to July 4, 1887. By an act approved February 11, 1858, the state relinquished all its right and interest in certain premises, of which this is a part, to Juan Maria Ponce de Leon. 4 GarameU’s Laws of Texas, 1027. There is therefore no merit in the contention that title did not pass from the state until May 4, 1887. The fact that formal patent did not issue until that date is of no consequence.

The refusal of a special charge upon the issue of limitation is made the basis of the twenty-first assignment. The charge in question directed the jury to find against defendant upon the issue of limitation if ho absented himself from the liroperty during the period covered by his plea of limitation. The court in its general charge correctly defined continuous possession, and correctly submitted the issue of limitation. No objection to the language or form of the charge upon tlie essentials of the plea was urged in the court below or here. There was no necessity for a more complete charge upon the issue of continuity of possession, and to have given the requested charge would have given undue prominence to plaintiff’s contention that the possession had not been continuous. It would have been improper to have given the charge, and it was rightly refused. Furthermore, appellant’s rights upon this phase of the case were fully protected by the submission of the ninth special issue which, reads:

“If defendant, Wiley, was in possession of this-property in controversy prior to the 4th day of July, 1887, then was there ever a period of time when he was not in possession of same himself or by some one for him?”

The city could not have desired a better presentation of the issue.

Chief Justice HARPER did not sit in this-case.

Affirmed
      <©^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: I-IODGES, J.

text:
    TEXAS & P. RY. CO. v. ERWIN.
    (No. 1527.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 12, 1915.
    Rehearing Denied Dec. 16, 1915.)
    1.Damages <&wkey;>69 — Injury to Shipment op Stock — Intebest.
    A shipper recovering for damages to stock is entitled to recover interest from the date of the damage as a part of his compensatory damages.
    [Ed. Note. — For other cases, see Damages, Cent. Dig. §§ 137-140; Dec. Dig. &wkey;69.]
    2.Trial &wkey;>362 — Special Findings — Injury to Stock — Damages.
    In a shipper’s action for damages for injury to stock, whore the jury, in answer to interrogatories, found the items of damage, but there was no request that the court submit the issue of the amount of damages recoverable, the court had a right to find that fact itself from the items fixed by the jury.
    [Ed. Note. — For other cases, see Trial, Cent. Dig. §§ 865-808; Dec. Dig. &wkey;3G2.]
    3.Costs &wkey;?2G0 — Appeal eor Delay.
    Where the question raised by appellant was so well settled that there was no reasonable ground for the appeal, the court, affirming it, would assess 10 per cent, damages.
    [Ed. Note. — For other cases, see Costs, Cent. Dig. §§ 983-996, 1002, 1003; Dec. Dig. &wkey;260.]
    Appeal from Fannin. County Court; S. F. Leslie, Judge.
    Action by L. E. Erwin against tlie Texas & Pacific Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Head, Dillard, Smith, Maxey & Head and J. F. 1-Iolt, all of Sherman, for appellant. J. M. Baldwin, of Honey Grove, and J. W. Gross, of Bonham, for appellee.
   I-IODGES, J.

This appeal is from a judgment in favor of the appellee against the appellant for damagesi to a shipment of cattle. In his petition the appellee asked for damages in the sum of $860, together with interest at the rate of 6 per cent, per annum from the 1st day of January, 1914. The recitals in the following judgment furnish all the facts necessary to be considered in passing upon the questions presented on this appeal:

“Court in session this April 21, 1915. When the above entitled and numbered cause came on for trial, both parties announced ready; whereupon came a jury of good and lawful men, to wit, J. J. Pritchett and five others, who, after being duly impaneled and sworn, and after hearing the evidence and argument of counsel, and having received the court’s charge submitting the cause on special issues, retired to consider their verdict, and afterwards returned into open court their answers to the questions submitted as follows:
“Q. 1. Was defendant, or its connecting carriers, negligent in transporting said shipment of cattle from Honey Grove, Tex., to Okcmah, Okla.? A. Tes. Q. 2. If you answer question No. 1 in the affirmative, then you are asked the following: Were the 32 head of cattle that were delivered at point of destination injured in value by such negligence of defendant, or any of its connecting carriers? A. Yes. Q. 3. If you answer question No. 2 in the affirmative, then you are asked: (a) What was the cash market value of the 32 head of cattle at the point of destination at the time of their arrival there in the condition in which they did arrive? (b) What would have been the cash market value of said 32 head of cattle at such time and place in the condition in which they should have arrived, except for such negligence? A. We answer to first part (a), $1,600. We answer to second part (b), $1,760. Q. 4. Was the death of the throe head of cattle which died in transit caused by the negligence of the defendant, or its connecting carriers? A. Por the two of them — not for the one found dead in car at Sherman. Q. 5. If you answer question No. 4 in the affirmative, then you are asked: What would have been the cash market value of said three head of cattle at destination at time they should have arrived there? A. 5. $90 for the two. Q. 6. Was the animal left at Wcleetka, Okla., injured by the negligence of the defendant or its connecting carriers? A. Yes. Q. 7. If you answer question No. 7 [6] in the affirmative, then you are asked: What would have been the cash market value of said animal at destination at the time it should have arrived there? A. $45. Q. 8. Were any of the injuries to said animals caused by the different ages and conditions of said animals so shipped in said car being loaded together in the ear? A. Yes. Q. 9. If you answer question No. 9 [SJ in the affirmative, then you are asked: What amount of such injuries was caused thereby? A. $-15 for one found dead in Sherman.
“It is therefore ordered, adjudged, and decreed by the court that plaintiff, L. E. Erwin, do have and recover of and from the defendant, Texas & Pacific Railway Company, a corporation, the principal sum of $295, together with 6 per cent, per annum interest on said amount from January 4, 1914, to date of judgment amounting to $23.35, and all costs of suit, for all of which let execution issue.”

Before the adjournment of the court the appellant filed a motion to reform the judgment by eliminating that provision which allowed interest at the rate of 6 per cent, per annum from January 4, 1914, and making the judgment bear interest from its date only. It is contended that the judgment rendered was not authorized by the verdict or by law.

It will be observed that the questions propounded to the jury required them to find only the value of the injuries at the time they were inflicted. This was not the measure of all the damages the appellee was entitled to recover. Interest may be allowed in such eases as a part of the compensation to the injured party. Watkins v. Junker, 90 Tex. 587, 40 S. W. 11; M. K. & T. Ry. Co. v. Gray, 160 S. W. 435.

There does not appear to have been any request that the court submit to the jury the issue as to what amount of damages the appellee was entitled to recover. The court therefore had a right to find that fact himself.

Counsel for the appellee have suggested that this appeal is for dela'y, and have asked for 10 tier cent, damages. The question raised in this court has been so well settled that it does not seem that there was any reasonable grounds for the appeal.

The judgment will therefore be affirmed with damages.
      <§=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: CARL, J.

text:
    INTERNATIONAL & G. N. RY. CO. v. CARTER.
    (No. 5529.)
    (Court of Civil Appeals of Texas. San Antonio.
    Nov. 10, 1915.
    On Motion for Rehearing, Lee. 15, 1915.)
    1. Evidence <&wkey;S3 — Pleading <&wkey;7 — Tnter-state Commerce Act —Rates — Publication — Presumptio n .
    Under Interstate Commerce Act (Act Eeb. 4, 1887, c. 104, 24 Stat. 380 [U. S. Comp. St. 1913, § 8569]) § 6, providing that every common carrier subject to the act shall file with the Commission, and print and keep open to public inspection, schedules showing all the rates, fares, and charges for transportation between different points on its own route, and between points on its own route and points on the route of any other carrier when a through route at a joint rate has been established, also providing that no change shall be made in the rates filed and published except after 30 days’ notice to the Commission and to the public duly published, and that the published changes shall be made by printing new schedules, etc., where a railroad printed new schedules, adopting an interstate joint rate for freight as fixed by the Hepburn Act (Act June 29, 1906, c. 3591, 34 Stat. 584), and filed them with the Commission, they being approved, the rates of the new schedule became effective, and it was to be assumed that the publication required by the act was had before the Commission approved the schedules, so that a railroad suing for freight charges under the interstate joint rate need not allege and prove such publication.
    I Ed. Note. — For other cases, see Evidence, Cent. Dig. § 105; Dee. Dig. «&wkey;83; Pleading, Lent. Dig. § 11; Doc. Dig. <&wkey;7.]
    2. Carriers <&wkey;19G — Carriage oe Freight— Action for Charges — Burden of Proof.
    When a railroad by cross-action sought to recover freight charges under an interstate rate, and plaintiff traversed, as required by statute, that the freight was such as to fall within the rate, the burden was on the road to prove the fact.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 879-887; Dec. Dig. <¿¿>196.]
    Appeal from Bexar County Court for Civil Cases; Ed. II. Wickes, Special Judge.

      Action by O. G. Carter against the International & Great Northern Railway Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Cobbs, Eskridge & Cobbs, of San Antonio, and Wilson, Dabney & King, of Houston, for appellant. Randolph L. Carter, of San Antonio, for appellee.
   CARL, J.

Appellee sued the appellant for possession of a Ford automobile, tendered $49.20 freight alleged to be due thereon, and sequestered the car. The railway company answered, alleging that a mistake had been made in the rate under the interstate rate as fixed by the I-Iepbum Act, and in a cross-action sued appellee and the sureties on the sequestration bond for freight in the sum of $131.20; also $25 for storage on the car after it arrived at San Antonio.

The trial was before the court without a jury. Judgment was in favor of appellee; that is, the railway company was given judgment for the freight which had been tendered, and against it on its cross-action. The trial court held that the interstate joint rate under which appellant claimed the right to charge $131.20 was not shown to be in force, and that therefore the rate fixed in the bill of lading — i. e., $49.20' — should prevail, because there was no proof that the interstate rate had been imblished in the manner required by the federal statutes.

There is no proof that this rate would hare applied to a car such as appellee shipped, even if it had been in force. But the reason given by the trial court is, in our opinion, correct. We taire this from the trial court’s findings:

“The court finds that the Interstate Commerce rate pleaded by the defendants was not in force or effect at any time during the shipment involved in this cause, because the rate was not published, and copies of the rate were not furnished to any of the agents, freight offices, or stations of the Mallory Steamship Company, or the defendant railroad company at New York City, or elsewhere. Therefore the contract rate evidenced by the bill of lading was in force and effect, and the defendants wrongfully withheld the automobile from the plaintiff when the tender of $49.20 was made.”

It was not shown that this interstate rate had been published as required, and cases construing this act hold that, in order to show a rate effective thereunder, it is necessary to show the filing of the rate with the Commission and the publication of the same. That publication seems to be to deposit copies of the rate with the carrier’s agents at the stations where shipments are made. It is not probable that the Congress contemplated that a rate should become effective and the heavy penalties provided attach by the mere filing with the Commission and before any agent knew of the same or had a copy of the rate so that he might be guided thereby. Railway Co. v. Reynolds, 135 S. W. 162; Hunter v. Railway Co., 167 Mo. App. 624, 150 S. W. 733. Justice White said, in Railway Co. v. Cisco Oil Mill, 204 U. S. 449, 27 Sup. Ct. 358, 51 L. Ed. 562:

“The filing of the schedule with the Commission and the furnishing by the railroad company of. copies to its freight offices incontrovertibly evidenced that the tariff of rates contained in the schedule had been established and put in force as mentioned in the first sentence of the section.”

We quote this from a North Carolina case:

“Tho act provides that, in order to establish a lawful schedule of rates, it must not only be thus ‘filed with the Commission,’ but also ‘printed and kept open to public inspection,’ and the provision, further on, in regard to changes in the schedule of rates, is that they ‘shall not be made, except after thirty days’ notice to the public, published as aforesaid.’ What, then, is meant by the expression ‘published as aforesaid’? It is apparent that these words imply that in making an original schedule ‘publication’ of some kind was essential to its validity and effectiveness. If we refer again to the first clause of section 6, we find that the schedule must first be filed with the Commission, and then it must be ‘printed and kept open to public inspection.’ This requires distribution to and among the different stations or depots at which the schedule of rates must have effect, and this is the construction the highest court has placed upon it. * * * The publication intended by the act, therefore, is filing with the agents at the several stations the schedules for public inspection, and this is what has been defined by tho court in the Miller Case as ‘promulgation and distribution.’ Compliance with this requirement is made a condition precedent to the effectiveness of the schedules and the lawfulness of the rate charged thereunder.” Virginia Co. v. Railway, 166 N. C. 62, 82 S. E. 1.

It seems to us that it was intended that the rate should / become effective “by filing with the Interstate Commerce Commission and depositing printed copies of the filed rate at its stations.” And no such publication was shown in this case.

We find nothing else that requires attention, and, since we think the correct result was reached upon the trial, the judgment is affirmed.

On Motion for Rehearing.

We must confess that we have had great difficulty in arriving at a correct understanding of the Interstate Commerce Act with reference to the requirements necessary to the establishment of interstate rates. This may arise from the fact that, as a general rule, we are only called upon to deal with our Texas statutes, which are much clearer and easier to understand. But this difficulty does not appear to be a trouble peculiar to us; for in searching the opinions of the United States Supreme Court we have not been able to find a definition of what is meant by “publication” as applied to the establishment of such rates. In some it appears to be used almost as synonymous with posting or printing of the schedules, as something which is to take place after the adoption of the schedules by the Interstate Commission. And then again it appears to be the printed agreement of the railways subscribing to the rate and the filing of same with the Commission and furnishing copies to the offices of the roads, before the rate is adopted.

Section 6 of that act provides:

“That every common carrier subject to the provisions of this act shall file with the Commission created by this act and print and keep open to public inspection schedules showing all the rates, fares, and charges for transportation between different points on its own route and between points on its own route and points on the route of any other carrier by railroad, by pipe line, or by water when a through route and joint rate have been established. If no joint rate over the through route has been established, the several carriers in such through route shall file, print and keep open to public inspection as aforesaid, the separately established rates, fares and charges applied to the through transportation. The schedules printed as aforesaid by any such common carrier shall plainly state the places between which property and passengers will be carried, and shall contain the classification of freight in force. * * * Such schedules shall be plainly printed in large type, and copies for the use of the public shall be kept posted in two public and conspicuous places in every depot, station, or office of such carrier where passengers or freight, respectively, are received for transportation, in such form that they shall be accessible to the public and can be conveniently inspected.”

It also provides that any railway company subject to the provisions of the act which receives freight from any foreign country or to be carried through the United States to a foreign country “shall also in like manner print and keep open to public inspection, at every depot or office where such freight is received for shipment, schedules showing the through rates,” etc. And it is provided that:

“No change shall he made in the rates,” etc., “which have been filed and published,” etc., “except after thirty days’ notice to the Commission and to the public published as aforesaid,” etc.; “and the proposed changes shall be shown ' by printing new schedules, or shall be plainly indicated upon the schedules in force at the time and kept open to public inspection: Provided, that the Commission may, in its discretion and for good cause shown, allow changes upon less than the notice herein specified, or modify the requirements of this section in respect to publishing, posting, and filing of tariffs,” etc.

And, further:

“The Commission may reject and refuse to file any schedule that is tendered for filing which does not provide and give lawful notice of its effective date,” etc.

In T. & P. Ry. Co. v. Cisco Oil Mill, 204 U. S. 451, 27 Sup. Ct. 360, 51 L. Ed. 563, Mr. Justice White says:

“The filing of the schedule with the Commission and the furnishing by the railroad company of copies to its freight offices incontrovertibly evidenced that the tariff of rates contained in the schedule had been established and put in force as mentioned in the first sentence of the section, and the railroad company could not have been heard to assert to the contrary. The requirement that schedules should be posted in two public and conspicuous places in every depot, etc., was not made a condition precedent to the establishment and putting in force of the tariff of rates, but was a provision based upon the existence of an established rate, and plainly had for its object the affording of special facilities to the public for ascertaining the rates actually in force. To hold that the clause had the far-reaching effect claimed would be to say that it was the intention of Congress that the negligent posting by an employé of but one, instead of two, copies of the schedule, or the neglect to post either, would operate to cancel the previously established schedule — a conclusion impossible of acceptance. While section 6 forbade an increase or reduction of rates, etc., ‘which have been established and published as aforesaid,’ otherwise than as provided in the section, we think the publication referred to was that which caused the rates to become operative; and this deduction is fortified by the terms of section 10 of the act, making it a criminal offense for a common carrier or its agent or shipper or his employé improperly ‘to obtain transportation for property at less than the regular rates then established and in force on the line of transportation of such common carrier.’ ”

Then in the Miller Case, 223 U. S. 590, 32 Sup. Ct. 323, 56 L. Ed. 568, Mr. Justice Van Devanter says:

“Publication and posting in the sense of’ the act are essentially distinct. This is the import of the provision that the requirements relating to ‘publishing, posting, and filing’ may be modified by the Commission in special circumstances ; for, if publishing included posting, mention of the latter was unnecessary. And from all the provisions on the subject it is evident that the publication intended consists in promulgating and distributing the tariff in printed form preparatory to putting it into effect, while the posting is a continuing act enjoined upon the carrier, while the tariff remains operative, as a means of affording special facilities to the public for ascertaining the rates in force thereunder. In other words, publication is a step in establishing rates, while posting is a duty arising out of the fact that they have been established. Obviously, therefore, posting is not a condition to making a tariff legally operative. Neither is it a condition to the continued existence of a tariff once legally, established. If it were, the inadvertent or mischievous destruction or removal of one of the posted copies from a depot would disestablish or suspend the rates, a result which evidently is not intended by the act, for it provides that rates once lawfully established shall not be changed otherwise than in the mode prescribed.”

So it appears to us, from a careful reading of many decisions of the United States Supreme Court, that the publication referred to is something that is to be done before the Commission approves the rate. And we think, after further consideration, that it would not be necessary, in order to state a cause of action, for the railroad company to allege and prove that publication was made, because we think that it may fairly be assumed that the Commission ascertained that the publication had been made as required before the schedules were adopted. That would be a defensive matter to be alleged and proved by the defendant. This, of course, is upon the theory that the publication mentioned is the printing of the schedules and filing same with the agents and with the Commission before the rate is adopted or approved by the Commission.

If the publication is something to be done after the rate has been approved by the Commission, we still do not believe that the railways could defeat the operation of the rate by failing or refusing to make such publication as is required. It is true that they might subject themselves to criminal prosecution for failing so to do. But that would not prevent the rate becoming effective; for the law makes a failure to comply a mere misdemeanor, and it is not probable that Congress intended that the law could thus be rendered nugatory by the mere payment of a small fine. So we conclude that, when the schedules are printed and filed with the Commission, and by it approved, such rates become effective, and that we may assume that such publication was had before the Commission approved the same. Therefore we modify the original opinion so as to accord with this view.

But, assuming that the interstate rate was in effect, still the railway company wholly failed to prove that the freight in this case was such as fell within its terms. The' allegations of the petition or cross-action of the railway on that point was traversed as required by our statutes, which put the company upon proof that this car fell within that rate. And this was not done.

For this reason, the motion will have to be overruled.
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text:
    TEXAS & P. RY. CO. v. CONWAY.
    (No. 1532.)
    (Court of Civil Appeals of Texas. Texarkana.
    Dec. 2, 1915.)
    CARRIERS &wkey;>269 — Carriage oe Passengers— Connecting Carriers — Liability for Injuries to Passengers.
    A carrier of passengers is not liable for illness and humiliation caused the plaintiff by its failure to connect with a train on another road, where its agents sold tickets only to the connecting point, though its trainmen represented to the plaintiff that she could catch a train and would not have to stay all night at the connecting point, since they had no authority to make such representations.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1060-1063; Dec. Dig. <i&wkey;269.]
    Appeal from District Court, Harrison County; II. T. Lyttleton, Judge.
    Action by Mrs. Daisey Conway against the Texas & Pacific Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Reversed, and judgment for defendant rendered.
    Train No. 105, from St. Louis, Mo., to Palestine, Tex., known as the “Past Mail,” was operated by appellant over its line of railway from Texarkana, by Marshall, to Long-view Junction, and by the International & Great Northern Railway Company over its line of railway from Longview Junction to Palestine. From Texarkana to Longview Junction the train consisted of mail, baggage, and express cars, and a car for passengers. It was due to arrive at Longview Junction between 5 and 6 o’clock p, m. Ordinarily, on its arrival at that point, the mail, baggage, and express cars were taken up by the International & Great Northern Railway Company’s train waiting there, and carried on without delay to Palestine. The passenger car was not carried on, but passengers for points on said International & Great Northern Railway Company’s line of railway changed from that car to cars in the waiting train. Occasionally, when the train out of Texarkana was late, the International & Great Northern train would not wait for it at Longview Junction. In those instances passengers «on the late train for points on the International & Great Northern Railway south of Longview Junction had to wait there until the next morning, when they could go on on another train leaving that place for points on said International & Great Northern Railway. On September 12, 1913, appellee, who resided at Marshall, desired to go with her six children from that place to Palestine on said train No. 105. She had passes for herself and her children over the International & Great Northern Railway from Longview Junction to Palestine. At appellant’s station in Marshall she ascertained that the train would reach there more than an hour late. She applied to appellant’s ticket agent for tickets for herself and children from Marshall to Longview Junction, advising him that she had passes from that point to Palestine, that she wished to go through to Palestine on said train No. 105, and inquired of him if the train would go through, advising him at the time that she did not wish to take it if it did not go through to that point. The agent sold her the tickets and-stated to her that his instructions were “to tell the passengers,” quoting from her testimony, “that when the train was late they would stop in Longview, but to ask the man at the train, and if he tells you it will go through it will be all right to get on.” When the train reached Marshall, appellee, as she was directed to do by appellant’s ticket agent, asked “the man at the train” if it would go through to Palestine, and was told that it would. Her account of what then occurred was as follows:
    “I found the porter and the brakeman at the steps of the car when I got there, who I thought to be the conductor and the porter. I asked the brakeman, and he replied that the train would go through to Palestine. My nephew, who was with me, also asked him, and he told him that it would go through to Palestine. When I got on tho steps of the car, I was very particular and turned around and inquired again and asked him if he was sure that the train went through to Palestine, and the negro porter replied, ‘Sure, lady; get right on and you will go right through.’ ”
    At Marshall the conductor in charge of the train ascertained from orders there received by him that the International & Great Northern Railway Company’s train would not wait at Longview Junction for his train, and when he took up appellee’s tickets advised her of that fact, and that she would have to remain at Longview Junction until the following morning, when another train left that point for Palestine. A heavy rain was falling at Longview Junction when train No. 105 reached there, and appellee and her children in leaving the car and going to- a hotel got wet, and thereby were made sick. Not expecting she would be delayed at Long-view Junction, appellee had not carried with her money sufficient to pay her hotel bill at that point, and therefore was subjected to the humiliation of having to ask the hotel proprietor, a stranger to her, to credit her. On the ground that appellant’s employes were negligent in telling lier at Marshall that the train would go through to Palestine, appellee by her suit sought a recovery of damages against appellant. The appeal is from a judgment in her favor for $250.
    F. H. Prenderghast, of Marshall, for appellant. John W. Scott and Wm. Caven, both ■of Marshall, for appellee.
   WILLSON, C. J.

(after stating the facts as above).

The trial court instructed the jury to find for appellee if they believed— “the plaintiff sought to inform herself as to the movements and connections of the train upon which she was about to take passage, and that in seeking such information she was misled by the statements of the agents and servants of the defendant company, and you further believe she suffered injury, and that.such injury, if any, was the direct and proximate result of the information which misled her, if you believe she received information which misled her.”

Appellant insists that the instruction was erroneous, because it was not, it asserts, bound by the statement made by its brakeman and porter to appellee that the train would go through to Palestine. This contention is based on the further contention that appellant’s employes could not bind it by statements in regard to the movement of trains on a line of railway operated by another company and beyond the point to which it had contracted to carry appellee. We think the contention should be sustained. Railway Co. v. Gants,. 38 Kan. 60S, 17 Pac. 54, 5 Am. St. Rep. 780. That appellee was not in a position to claim that appellant had bound itself to carry her further than Long-view Junction was established by the fact that the tickets it sold to her were for that point. That the agent who sold her the tickets did not have authority and did not undertake to bind appellant by representations that the train on which she took passage would go through to Palestine was established by her testimony showing that that agent told her, in reply to inquiry made by her of him, that his instructions were to tell persons who desired to go on that train to points beyond Longview Junction that same, when late, as it yvas on that occasion, would not go further than Longview Junction. Being without authority himself, as she was advised, to bind appellant by a statement that the train would go to Palestine, the agent who sold her the tickets could not by referring her to appellant’s porter and brakeman bind it by statements made to her by them. Ap-pellee therefore was not entitled to claim that liability on the part of appellant arose in her favor because of anything appellant’s ticket agent did or said. Such liability, if any there was, must have been referred to the representations made to her by the porter and brakeman of whom she made inquiry after she had entered into the contract with appellant whereby it had undertaken to carry her to Longview Junction. It is not, and reasonably could not be, contended, that appellant’s porter or brakeman could bind it by a contract to carry appellee and her children from Longview Junction to Palestine, a point not on its line of railway. The contention is that appellant became hound for the consequences resulting to appellee and her children, became of her reliance on the false representation made to her by the porter and brakeman that the train would go through, if, as we think must he conceded to be true, the porter and brakeman were without authority to bind appellant by a contract to carry appellee from the point it had undertaken to carry her to to a point off of its lino of railway, certainly they were without authority to bind it by representations as to the movements of trains on a line of railway operated by another company and not by appellant. To hold otherwise would be to say, as we think should not be said, that a railway company, contracting to carry to a nearby point on its line a person who wished to go over same and connecting lines to a point on one of the latter a thousand or more miles distant, could be made liable to such person for the expense, inconvenience etc., arising from delays on such connecting lines, resulting to him because of his reliance upon representations made by its porter and brakeman as to the movement of trains on such connecting lines. To so hold, it seems to us, would be unreasonable. Furnishing to persons appellant had undertaken to carry to points on its line information about the movement of trains on other lines of railway was outside the scope of the duties the porter and brakeman were employed to perform; and appellant should not, we think, be held bound to respond in damages to ap-pellee for injury she suffered because she relied upon information they furnished her which turned out to be false. Legally she had no right to rely upon, as representations of appellant, statements made to her by its employes who were without authority, real or apparent, to act for it in making samo.

The judgment will be reversed, and judgment will be here rendered that appellee take nothing by her suit against appellant.
      <i&wkey;For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: LEVY, J.

text:
    DUPREE v. MASSEY.
    (No. 1518.)
    (Court of Civil Appeals of Texas. Texarkana.
    Nov. 26, 1915.
    Rehearing Denied Dec. 2, 1915.)
    Justices oe tiie Peace <§=»159 — Arpead— Boot — Necessity.
    Under Rev. St. 1911, art. 2398, providing that upon appeal from the judgment of a justice the party appealing shall file with the justice a bond payable to the appellee, conditioned for the effective prosecution of the appeal and payment of the judgment which may be rendered against appellant upon such appeal, plaintiff, who was defeated below and against whom judgment was rendered on defendant’s counterclaim, must file such bond or the county court will have no jurisdiction.
    [E'd. Note. — For other cases, see Justices of the Peace, Cent. Dig. §§ 544, 550-578; Dec. Dig. &wkey;5l59.]
    Appeal from Franklin County Court; O. L. Reaves, Judge.
    Action by S. N. Massey against C. C. Du-pree, who counterclaimed, begun in justice court and appealed by plaintiff to county court. From a judgment there for plaintiff, defendant appeals.
    Reversed and remanded, with instructions.
    R. ,D. Wilkinson, of Mt. Vernon, for appellant. S. M. Dong and L. W. Davidson, both of Mt. Vernon, for appellee.
   LEVY, J.

Appellee instituted this suit in the justice court against appellant, claiming that appellant was indebted to him in the sum of $45.13 for supplies furnished, and in the further sum of $65.16 store account which appellee claimed to .have paid, and $17.76 for fertilizer, with total credits allowed of $44.-14. A distress warrant was sued out and levied upon property of the defendant. The appellant answered, admitting that he owed the sum of $45.13 for supplies, but denying that he owed appellee the other two items sued on, and pleaded, in offset against appel-lee’s debt, a counterclaim for $45.85, and a cross-action for damages in the sum of $189 for suing out the distress warrant. The jury on the issues returned a verdict against ap-pellee and in favor of the appellant for a difference in his favor on his counterclaim of $1.87, and for damages in the sum of $10, and the justice of the peace entered judgment accordingly in favor of appellant. The plaintiff gave notice of appeal to the county court, but filed no appeal bond or affidavit in lieu thereof in the justice court. The appellant made a motion in the county court to dismiss the appeal for the reason that the plaintiff had filed no appeal bond or affidavit in lieu thereof in the justice court, and the court overruled the motion. This ruling of'the county court is made the basis of assignment of error in this court.

It is believed that under the issues and judgment in this case the appellee was required to file and was not exempted from giving an appeal bond or affidavit in lieu thereof in order to make effective the appeal from the justice court, and to confer jurisdiction upon the county court to try the case de novo. Article 2893, R. S.; Land Co. v. Ward, 141 S. W. 1024; Carter v. Wyrick, 98 S. W. 644.

The county court having no jurisdiction to determine the appeal, the judgment therein is void. The judgment of the county court will therefore be reversed and the proceedings remanded to that court, with instructions to dismiss the appeal from the justice court.

Reversed and remanded, with instructions.
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author: KEY, O. J.

text:
    RELIANCE INS. CO. OF PHILADELPHIA v. DALTON.
    (No. 5401.)
    (Court of Civil Appeals of Texas. Austin.
    Dec. 1, 1915.)
    INSURANCE &wkey;>336 — Fire Insurance — Construction oe Policy — Statute.
    Act Sept. 6, 1910 (Acts 31st Leg., 4th Called Sess., c. 8) § 18, provides that no company subject to thb provisions of tho act may issue any policy of insurance covering property in tho state containing any clause- requiring the assured to take out a larger amount of insurance than expressed in the policy, or providing that he shall be liable as coinsurer, unless the assured accepts a policy of coinsurance in consideration of a reduction in the rate of insurance. Assured instructed the insurer’s agent not to write a coinsurance policy, but contracted for the concurrent policy issued with a stipulation prohibiting insurance in excess of $15,-000. In suit on the policy the insurer defended on the ground that the prohibited amount of insurance had been exceeded, and the assured contended that, as the state insurance board and an agent appointed by the insurer and other companies had placed the property involved in a class which, by the rules and regulations of tho board, required it to be insured by a coinsurance policy, although the policy issued and accepted was in terms a concurrent policy with the clause prohibiting insurance beyond a specified amount, nevertheless the court should enforce it as “a coinsurance policy,” which is one containing a stipulation requiring the assured to maintain a certain amount of insurance upon the property, and providing that in the event he fails to d'o so ho become a a coinsurer, and hold that it was not void because of the excessive insurance. Held, that assured could not enforce their concurrent policy, which they had violated, as they had contracted for it, and not for any policy of coinsurance, the writing of which would have been unlawful under the statute unless accepted on account of reduction in rate.
    [Ed. Note. — For other cases, see Insurance, Cent. Dig. §§ 856-873; Dec. Dig. <&wkey;>336.]
    Appeal from District Court, McLennan County; Richard I. Munroe, Judge.
    On appellant’s and appellee’s motions for rehearing.
    Motions overruled.
    For former opinion, see 178 S. W. 966.
    Wm. Thompson, of Dallas, and Jno. S. Patterson, 'of Austin, for appellant. Williams & Williams and Witt & Saunders, both of Waco, for appellee.
   KEY, O. J.

This ease has been reversed and remanded, and appellant has filed a motion for rehearing, asking that the case be reversed and rendered; while appellee has filed a motion for rehearing, requesting that the judgment of the trial court be affirmed. Both motions have received careful consideration, and our conclusion is that the case has been properly disposed of by this court, and that the motions should be overruled.

Attached to appellant’s motion is a certified copy of three pages copied from the question and answer transcript 'of the testimony prepared and filed by the court stenographer in the trial court, and it is contended on behalf of appellant that, when the statement of facts is considered in connection with the document referred to, it is clear that appellant had no notice of one of the additional policies, the procurement of which was pleaded as a breach of the contract of insurance sued upon and as a defense to appellee’s cause of action. In our opinion, the document referred to cannot be considered as any part of the .statement of facts, or for any other purpose, and therefore we decline to render judgment for appellant.

As to appellee’s motion for rehearing, we adhere to our former ruling, and hold that the court Committed reversible error when it refused to give appellant’s requested instruction Copied in our former opinion. In addition to what was said in that opinion upon the subject of coinsurance, and in further reply to the contention of appellee’s counsel that the judgment should be affirmed upon the theory that the undisputed proof shows that the property in question was classified as coinsurance property at the time the policy in suit-was issued, and reclassified as such before the other policies were obtained, we call attention to section 18 'of the act of September 6, 1910 (Acts 31st Leg., 4th Called Sess., c. 8), which act was in force when this transaction occurred, which section reads as follows:

“Sec. IS. No company subject to the provisions of this act may issue any policy or contract of insurance covering property in this state, which shall contain any clause or provision requiring the assured to take out or maintain a larger amount of insurance than that expressed in such policy, nor in any way providing that the assured shall be liable as coin-surer with the company issuing the policy for any part of the loss or damage which may be caused by fire to the property described in such policy, and any such clause or provision shall he' null and void and of no effect, provided, that it may be optional with the assured to accept a policy or contract of insurance containing a coinsurance clause or provision when a reduction in the rate of insurance on the property described in such policy is the consideration named in such clause, and when so accepted the coinsurance clause or provision shall be binding on the assured.”

As written, the policy in suit is what is termed a concurrent policy, with a stipulation prohibiting insurance in excess of $15,-000. A coinsurance policy is one Containing a stipulation requiring the assured to maintain a certain amount of insurance upon the property, and providing that in the event he fails to do so he becomes a coinsurer; and the appellee contends that the state insurance board and an agent appointed by appellant and other insurance Companies had placed the property involved in this proceeding in a class which, by the rules and regulations of the state insurance board, required it to be insured by a coinsurance policy, and therefore, although the policy that was issued and accepted was in terms a concurrent policy, with a clause prohibiting insurance beyond a specified amount, the court should enforce it as a coinsurance policy, and hold that it was not void because of such excessive insurance. The answer to that contention is that the testimony not only failed to show that the owners of the property at the time the policy was issued, who were the assured, consented to accept a coinsurance policy because of a reduction in the rate of insurance, but, on the contrary, the undisputed testimony shows that the assured did not desire a coinsurance policy, but instructed appellant’s agents not to write them such policy. In other words, they contracted for the policy which was issued to them, and it would have been unlawful to have written it as a coinsurance policy, unless the assured, on account of a reduction in the rate of insurance, had agreed to accept such policy. This is the plain and obvious meaning of section 18 of the statute referred to, and presents an insuperable objection to an affirmance of the judgment upon the theory urged by appellee’s counsel.

Motions overruled.
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