author: GREENWOOD, J.

text:
    CITY OF NEW BRAUNFELS et al. v. WALDSCHMIDT et al.
    (No. 3081.)
    (Supreme Court of Texas.
    Dec. 11, 1918.)
    1. Constitution Ax. Law <©=>255 — Schools and School Districts <©=>158(1) — Health Regulations — Vaccination.
    An ordinance denying pupils right to attend school unless vaccinated for smallpox, there being smallpox in the community, does not deprive pupils or parents of liberty or property without due process of law under Const. U. S. Amend. 14, and Const. Tex. art. 1, § 19.
    2. Schools and School Districts <©=>158(1) — Constitutional Law <©=>84 — Interference in Matters of Religion — Vaccination of School Children.
    An ordinance, denying pupils the right to attend school unless vaccinated for smallpox, does not interfere with any rights of conscience in matters of religion under Const, art. 1, § 6.
    3. Schools and School Districts <©=>158(1) — Powers of Council — Health Regulations.
    Under Rev. St. 1911, art. 838, authorizing city council of New Braunfels “to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease,” council had power to pass ordinance denying children right to attend school unless vaccinated for smallpox.
    4. Schools and School Districts <©=>158(2) —Ordinance—Reasonableness.
    An ordinance, in a city with 30 per cent. Mexican population, denying children the right to attend school unless vaccinated for smallpox, was not unreasonable, although at the time there was only one case of smallpox in the town.
    5. Schools and School Districts <©=>158(1) — Health Regulations'— Vaccination — Bodily Condition.
    An ordinance, denying school children the right to attend school unless vaccinated for smallpox, was not inconsistent with the law for compulsory education exempting from its requirement “any child whose bodily condition is such as to render attendance inadvisable.”
    Error to Court of Civil Appeals of Third Supreme Judicial District
    Suit by Fritz Waldsehmidt and others against the City of New Braunfels and another. From a judgment of the Court of Civil Appeals (193 S. W. 1077) reversing a judgment in favor of defendants, the defendants bring error.
    Reversed.
    Henne & Fuchs and J. R. Fuchs, all of New Braunfels, for plaintiffs in error.
    Adolph Seideman, of New Braunfels, for defendants in error.
   GREENWOOD, J.

By this suit defendants in error attack the validity of an ordinance adopted by the city council of the city of New Braunfels, providing that no person should be permitted to attend the public or private schools within that city, without presenting a physician’s certificate to the person’s vaccination within six years, and providing for the punishment, by fine, of any one upon conviction of sending a child'to any school within the city who had not been vaccinated or upon conviction of admitting a child into such school without a certificate of vaccination.

The ordinance is attacked on three grounds, viz.:

First. That the ordinance deprives defendants in error of liberty and property, without due process or due course of law, and hence violates the Fourteenth amendment to the Constitution of the United States and section 19 of article 1 of the Constitution of Texas.
Second. That the ordinance abridges or interferes with the rights of defendants .in error in matters of religion, and hence violates section 6 of article 1 of the Constitution of Texas.
Third. That the ordinance is void because the city of New Braunfels was without lawful authority to enact same.

There is no substantial dispute over the material facts, which may be summarized as follows:

(1) The ordinance was adopted on September 18, 1916, and New .Braunfels then and since was a-municipal corporation of some 4,500 inhabitants, possessing all the powers conferred by title 22 of chapter 1 of the Revised Statutes of Texas of 1911.
(2) The percentage of Mexicans in the population of New Braunfels is about 30. New Braunfels is directly connected by rail and highway with San Antonio, 28 miles distant, and "with San Marcos, 18 miles distant. San Antonio has a large Mexican population, and a number of Mexicans pass from San Antonio to New Braunfels each day.
(3) There are cases of smallpox, chiefly among the Mexicans, in San Antonio, practically throughout the year. In the fall of 1916, smallpox was prevalent in epidemic form in N%w- Braunfels, San Marcos, and San Antonio. Thirty-two eases of smallpox were reported to the city health officer, within New Braunfels, during this epidemic, and there were 6 deaths. The epidemic started in the negro and Mexican quarter of the town and then extended to the white people, until about as many of them were afflicted as of the negroes and Mexicans. The highest number of cases in New Braunfels at one time was 15 or 16. Once during the epidemic the cases were reduced to one single case, and the health officer believed he would be able to prevent the further spread of the disease. However, a Mexican case was concealed, and other cases developed until their number again rose to 15 or more. It is the custom of Mexicans to conceal smallpox among their people, and the lack of sanitation in their surroundings is favorable to its spread. On September 18, 1916, when tlie ordinance was enacted, the epidemic of smallpox prevailed, and, on account thereof, the public schools were closed from that date until about October 20, 1916. There were several cases of smallpox in San Marcos when the schools were reopened.
(4) Smallpox is a very contagious and dangerous disease. It may be disseminated by those not afflicted as well as by those stricken. Younger people are the inost susceptible to the contagion. The medical profession generally recognize vaccination as a preventative of smallpox. There was no case out of the 32 in New Braunfels in 1916 who had been vaccinated within or for a reasonable time. One man had it who had been, vaccinated 40 years previously, and hence was no longer protected thereby. Two or three patients were vaccinated, after they had been exposed, but too late to protect them. Physicians and nurses, after proper vaccination, expose themselves to the contagion without contracting smallpox.
(5) When the case was tried, on November 16, 1916, there was one case of smallpox in New Braunfels, and the only physician who testified gave it as his opinion that there was danger at that time of the spread of the disease. In support of the opinion, he stated that in winter the Mexican population in New Braunfels increased, when they gathered together in unventilated little huts, and the disease was most likely to originate among them and spread to all the people. While no public school pupil was stricken during the 1916 epidemic, smallpox appeared in two white families with public school children, who did not then attend school. •
(6) On October 20, 1916, defendant in error Fritz Waldschmidt sent his daughter Else to the public schools of the city of New Braun-fels, which is an independent school district, having its own trustees, and levying a school tax, and these trustees had resolved, on September 5, 1916, not to require all pupils to be vaccinated. Else Waldschmidj; was denied admittance to the schools, on October 20, 1916, because of her failure to present a certificate of vaccination as required by the ordinance.
(7) This suit’is brought by Else Wald-sehmidt and her brother Sido Waldschmidt, both being of scholastic age and in good health, as well as by their father, all residing in New Braunfels, to enjoin the city and its officers from excluding Else and Sido from the public schools. Else and Sido and their father are Christian Scientists and do not believe in vaccination, but conscientiously believe in the Christian Science treatment of smallpox, which is “a denial of the reality of sickness and disease.”

On the foregoing facts, the trial court entered judgment refusing the injunction sought by defendants in error.

The Court of Civil Appeals reversed the judgment, made the specific findings, among others, that smallpox did not exist in epidemic form in New Braunfels at the time of the trial, and that there was no reasonable ground for fearing that such an epidemic was threatened, and rendered judgment for defendants in error enjoining plaintiffs in error from excluding the two Waldschmidt children from the public schools. 193 S. W. 1077-1082.

The contention that this ordinance is inconsistent with the liberty guaranteed by the federal and state Constitutions has been too completely repelled by the opinion of the Supreme Court of the United States in Jacobson v. Massachusetts, 197 U. S. 22, 25 Sup. Ct. 358, 49 L. Ed. 643, 3 Ann. Cas. 765, to justify further discussion. In upholding an outright compulsory vaccination statute of the state of Massachusetts, the court, through Justice Harlan said:

“The defendant insists that his liberty is invaded when the state subjects him to fine or imprisonment for neglecting or refusing to submit to vaccination; that a compulsory vaccination law is unreasonable, arbitrary, and oppressive, and therefore hostile to the inherent right of every freeman to care for his own body and health in such way as to him seems best; and that the execution of such a law against one who objects to vaccination, no matter for what reason, is nothing short of an assault upon his person. But the liberty secured by the Constitution of the United States to every person within its jurisdiction does not import an absolute, right in .each person to be, at all times and in all circumstances, wholly freed from restraint. There are manifold restraints to which every person is necessarily subject for the common good. On any other basis organized society could not exist with'safety to its members. Society based on the rule that each one is a law unto himself would soon be confronted with disorder and anarchy. Real liberty for all could not exist under the operation of a principle which recognizes the right of each individual person to use his own, whether in respect of his person or his property, regardless of the injury that may be done to others. * ⅜ * In Crowley v. Christensen, 137 U. S. 86, 89 [11 Sup. Ct. 13, 15 (34 L. Ed. 620)], we said: ‘The possession and enjoyment of all rights are subject to such reasonable conditions as may be deemed by the governing authority of the country essential to the safety, health, peace, good order, and morals of the community. Even liberty itself, the greatest of all rights, is not unrestricted license to act according to one’s own will. It is only freedom from restraint under conditions essential to the equal enjoyment of the same right by others. It is then liberty regulated by law.’ * * * The liberty secured by the fourteenth amendment, this court has said, consists, in part, in the right of á person ‘to live and work where he will.’ Allgeyer v. Louisiana, 165 U. S. 578 [17 Sup. Ct. 427, 41 L. Ed. 832]. And yet he may be compelled, by force if need be, against his will and without regard to his personal wishes or his pecuniary interests, or even his religious or political convictions, to take his place in the ranks of the army of his country, and risk the chance of being shot down in its defense. It is not, therefore, true that the power of the public to guard itself against imminent danger depends in every case involving the control of one’s body upon his willingnéss to submit to reasonable regulations established by the constituted authorities, under the sanction of the state, for the purpose of protecting the public collectively against such danger.” 197 U. S. 26-30, 25 Sup. Ct. 361-363 (49 L. Ed. 643, 3. Ann. Cas. 765).

The minor defendants in error claim that they have property rights in state and local school funds, of which they would be deprived, ' without due process of law, by the enforcement of the ordinance. And their father claims that his property rights would also be divested, without due course of law; he being a property owner and payer of school taxes in the New Braunfels independent school district. Connecticut has a common school system, and, when ⅛ school committee in that state exercised the authority conferred by statute to require every child' to be vaccinated before being permitted to attend school, the requirement was resisted upon the ground that it deprived a child of scholastic age, who refused to be vaccinated, of his rights without due process of law. In holding the child bound to submit to vaccination, as a condition of attending the schools, it was said:

“The duty of providing for the education of the children within its limits, through the support and maintenance of public schools, has always been regarded in this state in the light of a governmental duty resting upon the sovereign state. It is a duty not imposed by constitutional provision, but has always been assumed by the state; not only because the education of youth is a matter of great public utility, but also, and chiefly, because it is one of great public necessity for the protection and welfare of the state itself. In the performance of this duty, the state maintains and supports at great expense, and with an ever watchful solicitude, public schools throughout its territory, and secures to its youth the privilege of attendance therein. This is a privilege or advantage, rather than a right, in the strict technical sense of the term. This privilege is granted, and is to be enjoyed, upon such terms and under such reasonable conditions and restrictions as the law-making power, within constitutional limits, may see fit to impose; and, within those limits, the question, what terms, conditions, and restrictions will best subserve the end sought in the establishment and maintenance of public schools,-is a question solely for the Legislature, and not for the courts. The statute in question authorizes the committee to impose vaccination as one of those conditions. It does not authorize or compel compulsory vaccination; it simply requires vaccination as one of the conditions of the privilege of attending the public school. Its object is to promote the usefulness and efficiency of the schools by earing.for the health of the scholars. * * * The statute is essentially a police regulation, as much so as would be one giving the power to exclude temporarily scholars afflicted with infectious or contagious diseases,.or coming from homes' or districts where such diseases were prevalent. * * * It may operate to exclude his son from school, but, if so, it will be because of his failure to comply with what the Legislature regards, wisely or unwisely, as a reasonable requirement, enacted in good faith to promote the public welfare. Nor, in any proper sense, can the statute be said to deprive the plaintiff of any right without due process of law, or to deny to him the equal protection of the law.” Bissell v. Davison, 65 Conn. 190, 32 Atl. 349, 29 L. R. A. 253, 254.

That portion of the quoted, language dealing with the duty of the state and the benefits extended in the performance of that duty seems just as applicable to Texas as to Connecticut, and the duty is enjoined on Texas both by the Constitution and by statute.

However, if defendants in error, or any of them, had a right with respect to the children’s school attendance, which could properly be considered a property right, the same was held subject to a valid exercise of the police power of the state. McSween v. Board of School Trustees, 60 Tex. Civ. App. 270, 129 S. W. 208, Halsell v. Ferguson, 202 S. W. 321. “For it is settled that neither the ‘contract’ clause nor the ‘due process’ clause has the effect of overriding the power of the state to establish all regulations that are reasonably necessary to secure the health, safety, good order, comfort, or general welfare of the community; that this power can neither be abdicated nor bargained away, and is inalienable even by express grant; and that all contract and property rights are held subject to its fair exercise.” Atlantic C. L. R. Co. v. Goldsboro, 232 U. S. 558, 34 Sup. Ct. 368, 58 L. Ed. 721.

The ordinance does not in any way undertake to control or interfere with any rights of conscience in; matters of religion. As pointed out in Chief Justice Waite’s opinion in Reynolds v. United States, 98 U. S. 161, 25 L. Ed. 244, the religious freedom, guaranteed by the United States Constitution, does not deprive Congress of legislative power, whereby actions may be. reached which violate social duties. No more does section 6 of the Bill of Rights in our state Constitution relieve one from obedience to reasonable health regulations, enacted under the police power of the state, because such regulations happen not to conform to one’s religious belief. “To permit this would be to make the professed doctrines of religious belief superior to the law of the land, and iif effect to permit every citizen to become a law unto himself. Government could exist only in name under such circumstances.” 98 U. S. 166, 167, 25 L. Ed. 244.

No one would question that the police power of the state may be delegated for appropriate purposes to the various municipalities, and that it may be validly exercised by such municipalities for the protection of .the health of their residents. “Health being the sine qua non of all personal enjoyment, it is not only the right but the duty of a state or a municipality possessing the police power to pass such laws or ordinances as may be necessary for the preservation of the health of the people.” 12 O. J. 913.

But it is contended, and was determined by the Court of Civil Appeals, that no power had been granted a municipal corporation, incorporated like New Braunfels, to adopt such an ordinance as that in question.

Article 838, R. S., expressly conferred on the city council of New Braunfels the power “to do all acts and make all regulations which may be necessary or expedient for the promotion of health or the suppression of disease,” and, in our opinion, this ordinance is no more than a regulation deemed necessary and expedient by said city council, to suppress the disease of smallpox in New Braunfels, and to promote the health of all the people of the city, and hence plainly within the scope of the power granted to the council.

This court refused a writ of error in the case of Zucht v. San Antonio School Board, 170 S. W. 840, wherein it was held that a provision of a special act of the Legislature, authorizing the San Antonio school board to make reasonable rules and regulations “for the protection of the health and safety of those attending such schools and to enforce such rules and regulations,” conferred the power on the school board to make and enforce a rule and regulation refusing admission to the city’s public schools of any pupil 'or teacher not presenting a physician’s certificate, showing successful vaccination within) seven years, with certain provisos which are not material here. It could not consistently be held that such an ordinance was authorized by the grant of power to protect the health of those attending schools and was unauthorized by a grant of power to both promote such health and suppress disease.

In McSween v. Board of School Trustees, 60 Tex. Civ. App. 270, 129 S. W. 206, it was held that the very general power granted an independent school board to manage, control, and govern the public schools, and to adopt such rules and regulations to that end as might be deemed proper, was sufficient to authorize the passage of a regulation for the vaccination of school children.

In upholding a regulation prescribed by a board of health, requiring children to be vaccinated as a condition to their admission to a public school, under a statute providing that the board should “have and exercise all the power necessary for the preservation of the public health,” and “to make such rules and regulations as may be deemed necessary for the health and safety of the inhabitants,” the Supreme Court of Minnesota said:

“A broad and comprehensive delegation of power to do all acts and make all regulations for the preservation of the public health as are deemed expedient confers, by fair implication, at least, the power sought to be exercised in this case. In the case of In re Rebenack, 62 Mo. App. 8, a legislative grant of power to a school board ‘to make all rules, ordinances, and statutes proper for the government and .management of such schools,’ was held sufficient authority for a regulation requiring children to be vaccinated, as a condition to their right to attend school. A general grant of power to do all acts necessary for the preservation of the public health and welfare was held to authorize a similar regulation in Indiana. Blue v. Beach, 155 Ind. 121, 127, 56 N. E. 89 [50 L. R. A. 64, 80 Am. St. Rep. 195], The same conclusion was reached in Hazen v. Strong, 2 Vt. 427, and in Duffield v. Williamsport, 162 Pa. 476, 29 Atl. 742 [25 L. R. A. 152].” State v. Zimmerman, 86 Minn. 358, 90 N. W. 785, 58 L. R. A. 78, 91 Am. St. Rep. 351.

We caimot assent to the proposition that with smallpox still in New Braunfels, and in other nearby communities, with which commercial and social intercourse was continuous, the trial court would have been warranted in declaring the ordinance unreasonable, having for its object to protect as far as practicable, by means of vaccination, the health and lives of the children and all the people of that community. As declared in Blue v. Beach, 155 Ind. 136, 56 N. E. 94, 50 L. R. A. 64, 80 Am. St. Rep. 195:

“It is a well-recognized fact that our public schools in the past have been the means of spreading contagious diseases throughout an entire community. They have been the source from which diphtheria, scarlet fever, and other contagious diseases have carried distress and death into many families. Surely there can be no substantial argument advanced adverse to the reasonableness of a rule or order of health officials which is intended and calculated to protect, in a time of danger, all school children, and the families of which they form a part, from smallpox or other infectious diseases.”

Enough has been said to show that the rule laid down in H. & T. C. Ry. Co. v. City of Dallas, 98 Tex. 417, 418, 84 S. W. 648, 655, 70 L. R. A. 850, precludes our sustaining the decision of the Court of Civil Appeals that this ordinance is invalid as lacking in reasonableness or want of necessity. This court announced in that case:

“As was said by the Supreme Court of Minnesota, in the Evison Case [45 Minn. 370, 48 N. W. 6, 11 L. R. A. 434], supra: Much must be left to the judgment and discretion of the city council, and when they have exercised their judgment and discretion in passing an ordinance it is prima facie valid, and, to justify a court in setting aside their action, its unreasonableness, and the want of necessity for it as a measure for the protection of life and property, must be clear, manifest, and undoubted, so as to amount, not to a fair exercise, but an abuse of discretion, or a mere arbitrary exercise of the power of the council.’ ” Evison v. Ry. Co., 45 Minn. 370, 48 N. W. 6, 11 L. R. A. 436.

There is no conflict between this ordi-' nance and our law for compulsory education, for that law expressly exempts from its requirements “any child whose bodily * * * condition is such as to render attendance inadvisable.” Certainly an unvaceinated child would come within that classification when those charged with the duty to protect the public health in his community had declared' that before he could be considered bodily fit to attend the school he must he vaccinated.

The effect of our conclusions is not to impose compulsory vaccination on the minor defendants in error, nor to subject their parent to prosecution if he withdraws them from school, because of his opposition to vaccination. It is simply to deny these minors the privileges of the schools until they comply with the ordinance passed for their own protection and for the protection of their families, along with all others residing in the community, as has been pointed out by the New York Court of Appeals. Viemeister v. White, 179 N. Y. 235, 72 N. E. 97, 70 L. R. A. 796, 103 Am. St. Rep. 859, 1 Ann. Cas. 334.

The judgment of the Court of Civil Appeals is reversed, and the judgment of the district court is affirmed.
      <§=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: PHILLIPS, C. J.

license: Public Domain

text:
    HOME INV. CO. et al. v. STRANGE.
    (No. 2516.)
    (Supreme Court of Texas.
    Dec. 21, 1918.)
    1. Appeal and Eeeoe <§=>1232 — Liability of . Surety on • Appeal Bond — Identity op Judgments.
    Where a judgment, as rendered by the Supreme Court in plaintiff’s favor, is for a materially less amount than the judgment decreed in the trial court, it is improper to render any judgment against the surety on the appeal bond.
    2. Trusts <§=>289 — Right to Accounting.
    Where property in defendant’s name is impressed with a trust in plaintiff’s favor, plaintiff’s right to an accounting of the property when sold cannot be defeated by a mere prior offer on defendant’s part to convey the property to plaintiff and another.
    On motion to reform judgment,
    judgment (204 S. W) 314) reformed, which reformed judgment in 195 S. W. 849, which reversed judgment in (Civ. App.) 152 S. W. 510.
    Leake & Henry, N. L. Lindsley, and W. J. Moroney, all of Dallas, for plaintiffs in error.
    L. G. McBride, of Dallas, for defendant in error.
   PHILLIPS, C. J.

Our action on the motion for rehearing in so for as it authorized the rendition of judgment against the surety on the supersedeas bond was erroneous. The judgment as rendered by us in Strange’s favor against the defendants W. J. Moroney and Home Investment Company in our action on the motion was for a materially less amount than the judgment decreed against them in the trial court. With this true it was improper to render any judgment against the surety on the bond. Connor v. City of Paris, 87 Tex. 32, 27 S. W. 88. The judgment as reformed and rendered on the motion fdr rehearing will accordingly be revised so as to omit the judgment against the surety on the bond, and in other respects will stand unaltered.

Under the motion to reform the judgment complaint is made by the defendant W. J. Moroney of the court’s failure to hold that the following special issue requested by him upon the trial, should have been submitted:

“Did W. J. Moroney at any time before the institution of this suit offer to convey to Strange and Huffman the interest or claims that had been conveyed to the Home Investment Company upon the repayment of all disbursements that had been made?”

We have heretofore ruled upon the motion for rehearing filed in behalf of the Home Investment Company and defendant W. J. Mo-roney. That disposed of this ground of complaint. The motion filed by the surety upon the supersedeas bond for a reformation Of the judgment does not afford to the defendant Moroney the privilege of filing a second motion for rehearing, even if the filing of such a motion were otherwise permissible. However this may be, it is perhaps proper that we state oür views upon this requested special issue.

There was testimony by the defendant Moroney substantially to the effect indicated by the special issue. In justice to him this should be said. The special issue, however, presented a wholly immaterial question — one which was in nowise- determinative of Strange’s right to recover. If the property to which title was taken in the name of the Home Investment Company was impressed with a trust in Strange’s favor, as the jury found it was, Strange’s right to recover the title and to have the Investment Company and Moroney account for so much of the property as had been sold, could not be defeated by a mere prior offer on Moroney’s part to convey the property, not to Strange, but to Strange and another. Furthermore, a conveyance by Moroney with the • title in the Home Investment Company, would have been ineffectual. If it was meant that Moroney would have the company, make the conveyance, the issue was not so framed. Nor was Strange’s right dependent upon his payment of all disbursements that had been made by Moroney. We expressly held on the original hearing that since under the finding of the jury the title to the property was wrongfully put in the name of the Investment Company, it was not incumbent upon Strange to ác-count to Moroney for any expenses he had incurred in that connection, but only for such amounts as constituted the purchase money for the title. There can be no question as to the correctness of that holding, and we adhere to it.
      ®=»For other cases sea same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes '


text:
    SOUTHWESTERN TELEGRAPH & TELEPHONE CO. v. STATE et al.
    (No. 2497.)
    (Supreme Court of Texas.
    Dec. 21, 1918.)
    1. Telegraphs and Telephones ⅞=»12 — Physical Connections — Charges.
    Order of Childress city council, pursuant to Acts 30th Leg. (1st Ex. Sess.) c. 12, requiring physical connection between two phone companies and interchange of service, held to authorize fair toll rates in addition to connection charge fixed therein, and not to warrant requiring one company to accept, from other, calls originating on its own line.
    2. Constitutional Law <§=>297 — Eminent Domain @=>2(1) — Due Process op Law-Taking Property — Compensation.
    Order of Childress city council, pursuant to Acts 30th Leg. (1st Ex. Sess.) c. 12, requiring physical connection between two phone companies and interchange of service, held not to take property of either company without due process of law or just compensation.
    3. Telegraphs and Telephones <§=>24 — Service — Actions—Pleading.
    Where two phone companies, ordered to make physical connection and interchange service pursuant to Acts 30th Leg. (1st Ex. Sess.) c. 12, refused to do so, complaint of state seeking penalty therefor held not demurrable for failure to allege, as was the fact, that one company had attempted to comply.
    Error to Court of Civil Appeals of Seventh Supreme Judicial District.
    Action by the State against the Southwestern Telegraph & Telephone Company and the Paducah Telephone Company. Judgment against the Southwestern Telegraph & Telephone Company and for the Paducah Company, and the Southwestern Company appealed. To review judgment (150 S. W. 604) of the Court of Civil Appeals, affirming judgment of trial court, the Southwestern Company brings error.
    Affirmed.
    A. P. Wozencraft, W. S. Bramlett, and S. P. English, all of Dallas, for plaintiff in error.
    J. H. Peden, Co. Atty., of El Paso, and Jos. H. Aynesworth and Browne & Worliclc, all of Childress, for defendants in error.
   PHILLIPS, C. J.

The Act of 1907 (Acts of Thirtieth Legislature, 462) provides that all companies, individuals, firms or corporations doing a telephone business in this State shall be compelled to make physical connections of their toll lines at common points for the transmission of messages or conversations from one line to another, with the proviso that in no case shall such a line be compelled to receive from the line of another company and transmit to its final destination any message originating on its own line. Where an incorporated city is a common point of two such lines, the act authorizes a public hearing by the city council for the purpose of determining whether in the interest of the public convenience it is necessary for such a connection to be made, and to order it made if found to be necessary, upon such conditions and division of expense as the council shall provide. Provision is made for an appeal from such order by any line thus affected by it to the court of appropriate jurisdiction; and for the recovery by the state of penalties if the order be not complied with.

In August of 1911 Childress, Texas, was a common point for the lines of the Southwestern Telegraph & Telephone Company extending from Childress to Paducah, Texas, and other points in the State, and the Padu-cah Telephone Company, extending from Chil-dress to Paducah. In that month the city council of Childress ordered a hearing for the purpose of determining whether in the interest of the public a physical connection of the two lines at Childress should be made, and after such hearing ordered that the connection be made upon the switchboard of the former company, the Paducah Company being required to furnish at its own expense a suitable line of poles and wires to the office of the Southwestern Company, and the additional expense of making the connection to be borne equally by the two companies. The order provided that for all connections, in the transmission of messages, made by the line of the Paducah Company with any local subscriber of the Southwestern Company at Childress, there should be paid by the Padu-cah Company to the Southwestern Company a charge of five cents for each connection; and that for all connections of its line with that of the Southwestern Company for any other point than Childress on the line of the latter, a charge of two and one half cents for each connection.

Neither company appealed from the order of the council. The order was not .complied with, ■ and this suit for penalties under the act resulted. Judgment was rendered against the Southwestern Company, but in favor of the Paducah Company. The evidence supports the judgment, in that it very plainly shows that the Paducah Company complied with the order and endeavored to and was willing to make the connection, but that the Southwestern Company refused to make it.

The connection at Childress had formerly been maintained by the two companies under a contract between them, but by act of the Southwestern Company it was discontinued shortly before 'the city counoil made its original order for a hearing.

It is plain that the order of the city council contemplates that the Southwestern Company may charge its proper toll rate for its service in respect to all messages or conversations between points upon the line of the Paducah Company and those upon its own line, in addition to the connection charge provided for in the order. It is also clear that under the act it could not be required to afford its service for the transmission of any message or conversation originating at a point on its own line, such, for instance, as Paducah. The order is to be so construed.

The order of the council is assailed by the Southwestern Company as a taking of its property without compensation and without due process of law. The act, in its authority for the order, is challenged upon the same grounds. In our opinion compliance with the order will not result in any “taking” of the company’s property in any constitutional sense. Its effect is only to require that by means of the connection upon its switchboard it afford, for compensation, the service of its toll lines to the public at certain points upon the Paducah Company’s line. In .all such cases those patrons will be as fully its patrons as those of the Paducah Company. In extending the service it will remain in undisputed control of all .of its property, including the switchboard. The operation of its lines for the purpose of the service will be entirely in its hands. No different use or burden will be imposed upon its property. The company is merely made to provide a facility whereby patrons of another line may, by means of that line and for a charge paid the company for the service, have access to its toll lines. If this be a “taking” of the company’s property, the property of such a company is likewise taken every time the company is made to connect its line with the store-house or residence of a local subscriber as the means of affording him similar service. It is not a taking of property. It is merely a reasonable regulation of the company’s service for the public convenience which the State may prescribe in the exercise of its police power, and to which the company as a common carrier is properly subject.

The regulation does not differ in principle, 1 manner or degree from those requirements I found in the statutes of every State which compel the physical connection of different railway lines at junction points, and their acceptance, interchangeably, of traffic from each other. Every argument that can be made against the validity of this act and the order of the council made in pursuance of it, could with equal force be made against those statutes. They equally require the larger lines of railway to physically connect with smaller lines and thus afford their service to the public at points not on their lines. They equally require, and in the same manner and to the same extent, the use of the property of one railway line for the benefit of original patrons of another line. Yet the validity of such statutes against the challenge here made of this act and order is not open to question. Wisconsin, etc., Railway v. Jacobson, 179 U. S. 287, 21 Sup. Ct. 115, 45 L. Ed. 194; Grand Trunk Railway v. Michigan Railroad Commission, 231 U. S. 457, 34 Sup. Ct. 152, 58 L. Ed. 310; Railway Co. v. Railroad Commission of Texas, 99 Tex. 332, 89 S. W. 961; Jacobson v. Wisconsin, etc., Railway, 71 Minn. 519, 74 N. W. 893, 40 L. R. A. 389, 70 Am. St. Rep. 358.

The same reasons which sustain the constitutionality of such statutes, make valid this act and the order of the Childress city council under it.

The cases which relate to legislative acts requiring the connection of telephone lines are not numerous, but the following authorities may be referred to as sustaining such exercise of the legislative authority: Pond on Public Utilities, § 554; Jones on Telegraph & Telephone Companies, § 263; Pacific Telephone & Telegraph Co. v. Hotel Co. (D. C.) 214 Fed. 666; Hooper Telephone Co. v. Nebraska Telephone Co., 96 Neb. 245, 147 N. W. 674.

The petition was not subject to a general demurrer for failure to allege that the Paducah Company had fully complied with the' order, so as to make the connection possible on the part of the Southwestern Company. Both companies were sued for failure to comply with the order. The petition charged that —

“Neither had been prevented from making the connection with the line of the other, but that each had failed and refused to make the connection as ordered.”

This was a sufficient allegation of delinquency on the part of both companies, and, as a pleading, would sustain a finding that either was at fault.

The judgments of the District Court and Court of Civil Appeals are affirmed.
      @=>For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: PHILLIPS, C. J. HAWKINS, J.

text:
    DALLAS COUNTY LEVEE DIST. NO. 2 et al. v. LOONEY, Atty. Gen.
    (No. 3139.)
    (Supreme Court of Texas.
    Dec. 18, 1918.)
    1. Levees ⅞⅜=»2 — Statutes — Repeal of Provision by Amendment.
    Const, art. 3, § 52, subds. a and b, authorizing creation of levee districts and issuance of bonds, held) not impliedly repealed by article 16, § 59, a distinct provision, having a distinct purpose, to authorize creation of certain of improvement districts dealt with by article 3, § 52, free from the limitation on their taxing power imposed by that section.
    2. Statutes <S=»141(1) — Amendment by Reference to Title.
    The Canales Act, Acts 35th Leg. (4th Called Sess.) c. 25, making Const, art. 16, § 59, effective by providing for creation of conservation districts, is not unconstitutional as an attempt to amend Acts 34th Leg. c. 146 (Vernon's Ann. Civ. St. Supp. 1918, art. 5530 et seq.), the levee improvement district act, by reference to its title.
    3. Levees <S=»2 — Apportionment of Cost of Improvement — Statute.
    The Canales Act, Acts 35th Leg. (4th Called Sess.) c. 25, making Const, art. 16, § 59, effective by providing for creation of conservation districts, and providing for levy of taxes by districts created under it on ad valorem plan, is not violative of article 16, § 59, conservation amendment, requiring that taxes for district indebtedness authorized shall be equally distributed.
    4. Levees <g=>2 — Apportionment of Cost-Taxation of Personalty.
    The Canales Act, Acts 35th Leg. (4th Called Sess.) c. 25, making Const, art. 16, § 59, effective by providing for creation of conservation districts, is not unconstitutional because permitting taxation of other than real property within levee district to pay cost of improvement.
    5. Levees <S=»2 — Statutes — Repeal by Implication-Levee District Acts.
    The Laney Act, Acts 35th Leg. (4th Called Sess.) c. 44, providing for creation of conservation districts under Const, art. 16, § 59, did not, by implication, repeal the Canales Act, Acts 35th Leg. (4th Called Sess.) c. 25, making Const, art. 16, § 59, effective by providing for creation of conservation districts.
    Original proceeding for mandamus, on the relation of Dallas County Levee District Number 2, and others, against B. F. Looney, Attorney General.
    Writ allowed.
    C. G. Groce, of Waxahachie, W. M. Harris, of Dallas, and Jno. H. Sharp, of Ennis, for relators.
    B. P. Looney, Atty. Gen., and W. P. Dumas, Asst. Atty. Gen., for respondent.
   PHILLIPS, C. J.

The object of this action is to require the Attorney General’s approval of certain bonds issued by Dallas Levee District No. 2 under the Canales Act of the Thirty-Fifth Legislature. Chapter 25, Acts of Fourth Called Session. The right to the mandamus depends upon the constitutionality of that act, and whether, if constitutional, it is still in force. These, therefore, are the questions presented for decision.

Formerly, our only constitutional provision authorizing the creation of levee districts and their issuance of bonds for levee purposes was that contained in section 52 of article 3. It limits the indebtedness that may be incurred by any or all the districts which may be formed under it, to one-fourth of the assessed valuation of the real property within the district or territory affected. It was given effect as to levee improvements by the Levee Improvement District Act of 1915, which we shall refer to as the Act of 1915. Ghapter 146, Acts of 1915 (Vernon’s Ann. Civ. St. Stapp. 1918, art. 5530 et seq.). That is an elaborate act, and it is unnecessary to detail its provisions. It is enough to say that it authorizes the creation of such districts under appropriate procedure, with the power, after due election, to issue bonds within the limits of the constitutional provision for the purpose of such improvement and levy ad valorem taxes upon all property within the district for their payment.

Later, what is known as the Conservation Amendment to the Constitution was proposed by the Legislature and adopted by the people in 1917. It constitutes section 59 of article 16. Acts of 1917, Regular Session, p. 500. It provides for the creation within the State, of such number of conservation and reclamation districts as shall be essential to accomplish its purposes, with the power, under legislative authority and as may be so prescribed, by the issuance of bonds to incur all such indebtedness as may be necessary to provide and maintain the improvements contemplated, and to make provision for its payment by the levy and collection within the district of all such taxes, “equitably distributed” as may be necessary therefor, — the indebtedness to constitute a lien upon the property assessed for its payment, and not to be authorized by the Legislature except upon a prior adoption of the proposition by the qualified property tax-paying voters of the district.

At its fourth ‘called session, the Thirty-Fifth Legislature — the same that had proposed the amendment — undertook to make it effective by two distinct acts; one the Canales Act, being the first adopted, and the other the Laney Act, — chapter 44, Acts of Fourth Called Session.

The Canales Act provides that any water improvement district, drainage district, or levee improvement district, heretofore or hereafter organized under the laws of the State as a defined district under section 52 of article 3 of the Constitution, may, under a prescribed procedure, avail itself of the benefits of the Conservation Amendment, that is, section 59 of article 16, and thereby become “a conservation and reclamation district” under the act without change of name. As to such districts so becoming districts under the act, it is declared that all limitations of indebtedness and taxes imposed by section 52 of article 3 or any law, are removed, and that they may incur indebtedness to fully carry out their purposes, and levy taxes for its payment and their maintenance and operation.

As to any levee improvement district availing itself of the benefits of the act and becoming thereunder a conservation and reclamation district, it is provided that it shall be governed and controlled by the Act of 1915 and amendments thereof, except as provided by the act.

Dallas County Levee District No. 2 was organized under the Act of 1915 and has already outstanding bonds issued as authorized by that act in the amount of $108,000.

On May 23, 1918, in the manner provided by the Canales Act it was constituted a conservation and reclamation district under that act. Thereafter, availing itself of the privileges of that act and to enable it to fully protect its lands from overflow, the bonds in controversy — an issue of $69,000 — were thereunder duly voted and authorized; the proceedings had in that respect, including the levy of the tax, being in accordance with the Act of 1915, as provided by the Canales Act.

The Attorney General has declined to approve the bond issue upon four grounds:

1. That the adoption of the Conservation Amendment to the Constitution had the effect to supersede subdivisions A and B of section 52 of article 3, and hence the attempt of the Canales Act to authorize the creation of levee districts under the Act of 1915 and the levy of ad valorem taxes for the payment of bonds issued by its 'authority, was ineffectual.
2. That the Canales Act, in its declaration that a levee district becoming thereunder a conservation and reclamation district shall be governed and controlled by the Act of 1915, is invalid in that this was but an attempt to amend the Act of 1915 by mere reference to its title.
3. That the Canales Act, in its authorization, through its reference to the Act of 1915, of the levy of ad valorem taxes for the payment of bonds issued by a levee district availing itself of its provisions, is invalid in that taxes of that character for such an improvement do not constitute taxes “equitably distributed,” as required by the Conservation Amendment.
4. That the Canales Act was by implication repealed by the Laney Act passed at the same session.

As to the first ground, it is immaterial, so far as this case is concerned, whether or not subdivisions A and B of section 52 of article 3 were repealed by the Conservation Amendment. The bonds in controversy do not purport to have been authorized under section 52 of article 3. Attempt has been made to have them issued under the Com servation Amendment as made effective by the Canales Act, and their validity is hence to be tested by that amendment.

In our opinion, however, no repeal of subdivisions A and B of section 52 of article 3 resulted from the adoption of the Conservation Amendment. The Conservation Amendment is a distinct constitutional provision and had an equally distinct -purpose. That purpose was to authorize the creation of certain of the improvement districts dealt with by section 52 of article 3, freed from the limitation upon their taxing power imposed by that section. It was not intended to interfere with the organization of such districts as might desire to rest under that limitation. For this reason it was proposed and adopted, not in any sense as an amendment of section 52 of article 3, but as an original and independent provision. It was doubtless recognized that while in some parts of the State the needed improvement might be well accomplished within the taxing limits of section 52 of article 3, yet in others conditions were such as to render those limits inadequate for the purpose. The design, therefore, was not to supplant an existing taxing power, but to create an additional one. It was not to prevent the creation of districts of the limited authority elsewhere conferred in the Constitution, but simply to provide for the formation of districts of the ampler authority given by the amendment. There is, accordingly, no inconsistency between the amendment and section 52 of article 3, and the latter was not repealed by the former.

The Canales Act in no respect amends the Act of 1915, and is therefore not open to challenge as an attempt to amend that act by reference to its title. It merely provides that an improvement or levee district previously or thereafter organized under the laws of the State may, by following certain procedure as prescribed in the Act of 1915 and upon the order of the Commissioners’ Court entered of record, become a conservation and reclamation district without change of name or impairment of its obligations; and that any levee district so becoming a conservation and reclamation district under its authority shall be governed by the Act of 1915 and its amendments, except as by it otherwise provided. Provisions of this character add nothing to, and take nothing from, the Act of 1915. They leave it intact. Their only effect is to incorporate that act for certain purposes into the Canales Act. It is readily to be seen that it is so incorporated in its full integrity, and in nowise altered or amended. This is a familiar and permissible legislative method. Quinlan v. Railway Co., 89 Tex. 356, 34 S. W. 738.

The third objection presents the broad question as to whether the requirement of-the Conservation Amendment that taxes for the district indebtedness there authorized shall be “equally distributed,” amounts to a prohibition of any power in the Legislature to provide for their levy upon the ad valorem plan.

Taxes, in their very nature, require apportionment, and cannot otherwise be levied. The power of apportionment is a part of the power to tax. The two are inseparable. The question,' therefore, is one of importance, since it vitally affects the legislative authority to lay the taxes contemplated by the amendment.

Taxation for local improvements, — as provided for by the amendment, is to be distinguished from general taxation for governmental purposes. It proceeds upon a different theory, and hence is governed by some principles not of universal application. The authority for its imposition is derived from the general soveregn power of taxation, but this distinction is such as to have caused such taxes to be called by a different name. They are accordingly generally denominated “special assessments.”

General taxes are laid in return for the general benefits which government bestows and as a means for its administration. Taxes for local improvements are levied in return for the special benefits resulting from the improvement, and possess no other function. Since the benefit is local, they are exacted exclusively from those who receive it, upon the principle that "while the few ought not to be taxed for the whole, the whole ought not to be taxed for the few.” It is this nature of the tax which, under the application of constitutional guaranties, has given rise to the doctrine, now generally affirmed, that such taxes cannot be laid upon the property affected'in substantial excess of the benefit it derives, but must be founded upon benefits and proportioned to benefits. Norwood v. Baker, 172 U. S. 269, 19 Sup. Ct. 187, 43. L. Ed. 443; Hutchieson v. Storrie, 92 Tex. 685, 51 S. W. 848, 45 L. R. A. 289, 71 Am. St. Rep. 884.

The declaration of the amendment that the taxes shall be “equally distributed” simply means that they must be fairly proportioned according to benefit to the property taxed, which is only another way of saying that in the light of the doctrine just referred to they must be justly levied. In á word, they must fairly represent the benefit to the property. Independently of this requirement of the amendment, they could not, without express constitutional provision to the contrary, be imposed according to any method less just or fair. This language, therefore, gives no additional force to the general principle which, even in its absence, would govern the manner of the levy. (

The measure of benefit that will accrue to property from a local improvement is at best but an approximation, and hence there is no general principle of constitutional law that in the imposition of such taxes limits the legislative power to the exact amount of pecuniary benefit which the particular property derives. While in some instances the benefit may be generally distributed throughout the district, in others it may be more confined. As stated by Judge Cooley, there is, accordingly, no universal rule of justice by which such taxes can be imposed. A rule for their apportionment that would be just in one case, might be oppressive in another. Eor this reason, as is announced by the same author, the method for apportioning such taxes is, as a rule, wisely confided to the Legislature, and could not, without the introduction of some new principle in representative government, be placed elsewhere. Cooley on Taxation, 1180. The exercise of this legislative discretion will not be revised by courts unless the method prescribed is one so arbitrary and unfair as to amount to an abuse of legislative power.

Two methods are generally availed of for the apportionment of such taxes. One is the appointment of commissioners with authority to examine the district and., apportion the tax according to their determination of the benefits that will be received. This is characterized as the assessment of net benefits to the particular property and a corresponding apportionment of the tax, and is the method which the Attorney General contends may alone be prescribed by the Legislature under this amendment. The other is a determination by the Legislature itself that the benefits will be in proportion to value, area or frontage, and apportionment accordingly. Cooley on Taxation, 416, 1205. The first may be the fairer method, but in the absence of express constitutional provision for a different rule, either is permissible. Idem, 416.

It is clear that the Conservation Amendment does not undertake to prescribe any given rule for making the apportionment. It provides no express method by which the benefit to the particular property — the subject of the tax — shall, be ascertained, and accordingly refrains from the adoption of any express basis for the apportionment of the tax. The effect of the declaration simply is that it shall be justly laid in fair proportion to the benefit. If it is so apportioned, there can be no question but that an “equal distribution” of the taxes will be accomplished within the full meaning' of the term. The basis of apportionment, therefore, is by the amendment left to the Legislature.

It cannot be said as a matter of law that a rule which apportions taxes of this character according to the value of the property affected is one plainly arbitrary and unfair. It is a veteran rule for the apportionment of property taxes, sanctioned by immemorial usage and universally applied. It is the one most familiar to the people. Its general justice is not open to challenge. It is an approved method for the apportionment of taxes of this kind. Its adoption was a matter of legislative discretion.

It has been repeatedly held by the Supreme Court of the United States that legislative acts providing for the levy of taxes for local improvements according to the value of the property affected are not arbitrary. Mattingly v. District of Columbia, 97 U. S. 687, 24 L. Ed. 1098; Fallbrook Irrigation District v. Bradley, 164 U. S. 176, 17 Sup. Ct. 56, 41 L. Ed. 369; Bauman v. Ross, 167 U. S. 548, 17 Sup. Ct. 966, 42 L. Ed. 270; Webster v. Fargo, 181 U. S. 394, 21 Sup. Ct. 623, 45 L. Ed. 912; Houck v. Little River District, 239 U. S. 254, 36 Sup. Ct. 58, 60 L. Ed. 266.

In Fallbrook Irrigation District v. Bradley, this was said:

“Assume that the only theory of these assessments for local improvements upon which they can stand is that they are imposed on account of the benefits received, and that no land ought in justice to be assessed for a greater sum than the benefits received by it, yet it is plain that the fact of the amount of benefits is not susceptible of that accurate determination which appertains to a demonstration in geometry. Some means of arriving at this amount must be used, and the same method may be more or less accurate in different cases involving different facts. Some choice is to be made, and where the fact of some benefit accruing to all the lands has been legally found, can it be that the adoption of an ad valorem method of assessing the lands is to be held a violation of the Federal Constitution? It seems to us clearly not. It is one of those matters of detail in arriving at the proper and fair amount and proportion of the tax that is to be levied on the land with regard to th’e benefits it has received, which is open to the discretion of the state legislature, and with which this court ought to have nothing to do. The way of arriving at the amount may be in some instances inequitable and unequal, but that is far from rising to the level of a constitutional problem and far from a case of taking property without due process of law.”

In other jurisdictions the same holding has been many times announced. Downer v. City of Boston, 7 Cush. (Mass.), 277, and Wright v. City of Boston, 9 Cush. (Mass.) 233, by Chief Justice Shaw; Gilson v. Commissioners, 128 Ind. 65, 27 N. E. 235, 11 L. R. A. 835; Commissioners v. Harrell, 147 Ind. 500, 46 N. E. 124; Burnett v. Mayor, etc., of Sacramento, 12 Cal. 76, 73 Am. Dec. 518; Re Bonds of Madera Irrigation District, 92 Cal. 296, 28 Pac. 272, 14 L. R. A. 755, 27 Am. St. Rep. 106; Lockwood v. City of St. Louis, 24 Mo. 20; Gilmore v. Hentig, 33 Kan. 156, 5 Pac. 781; Railway Company v. Board of Directors, 81 Ark. 562, 99 S. W. 843; Dorsey, etc., Co. v. Board of Directors (Ark.) 203 S. W. 33.

In Burnett, etc., v. City of Sacramento, it was declared:

“The law in question avoids the injustice of general taxation for local purposes, and lays the burden upon the recipients of the benefit. It apportions the tax according to the assessed cash value of the adjacent property, which is as near an approximation to an equitable rule as can well be established. No rule could be adopted which would work absolute equality. An approximation to it is all that can be attained. The power of apportionment, with the power of taxation, is exclusively in the Legislature. The Constitution contains no inhibition to the tax, and prescribes no rule of apportionment. Security against the abuse of the power rests in the wisdom and justice of the members of the Legislature, and their responsibility to their constituents.”

The justification of taxes for local improvements is that the property affected will, to the extent of the benefit derived, be enhanced in value. The value of the benefit is the thing to be arrived at, by some method which will provide fairly for its ascertainment and a consequent equitable distribution of the tax. An apportionment which estimates the benefit according' to position, frontage, or area of the land affected, either of which is ordinarily a permissible method, might, according to the nature of the particular improvement, afford ■ the fairer basis. Yet in a large sense this would be substantially but a laying of the tax in proportion to its value, since these are elements which materially determine the value of land within any such district. If the estimation of net benefits to particular land be undertaken and the tax be apportioned accordingly, largely the same result would follow, inasmuch as these same elements would equally in substantial measure determine the extent of the benefit. It is these considerations and the difficulties -which inhere in formulating a method which will operate with exact justice that makes a levying of the tax according to the value of the property affected “as near an approximation to an equitable rule as can well be established.”

This rule assumes that the benefit to the property will accrue in proportion to its value — that it will add to its former value in a measure fairly corresponding to that value. This is consistent with the theory upon which a district under the Canales Act is presumably formed. It would be impossible to create a district in which all the property therein is benefited in the same degree, and the law never demands the impossible. But the theory upon which a district is formed under the Canales Act is that all the property within the district will be benefited by the improvement in substantially the same relative degree. To accomplish such a distribution of benefits is the aim of the act. It is this which justifies the inclusion under it of particular property within the bounds of a single district. The contemplation is that the resulting benefit to the property throughout such a district will not be substantially disproportionate, but relatively equal. If the property be relatively benefited, its value, to the extent of the benefit, will be increased in the same relative degree. A tax, therefore, imposed according to its relative value will, with fair approximation, represent the benefit and be in just proportion to the benefit, which is the end of the law in such taxation.

It is possible, of course, for land within districts of this character which is less valuable to receive a greater benefit from the improvement than that which is more valuable ; and it may be argued with reason that when in such a ease the land is taxed only according to its value, it is not made to pay in just proportion to the benefit. It is permissible for the Legislature to make provision for districts where this will be the result, by prescribing a method of apportionment which, by disregarding the value of the land and assessing merely the.value of the benefit, will in such eases' operate more justly, perhaps, than a rule which lays the tax simply according to the value of the land. The Laney Act prescribes such a method of apportionment, and by it the Legislature has made such provision. But can it be said to be without the Legislature’s power to equally provide for the formation of districts in which presumably and as a fact there will not be this disproportion of benefit, but where it will be distributed throughout the district with relative equality ; and prescribe therefor a rule which, in laying the tax according to the value of the property affected, will in such cases just as fairly tax the property only in proportion to the benefit? That is the question here. It seems to us that there can be but one answer. The Legislature clearly had the power.

That the Canales Act permits the taxation of other than real property within a levee district for the purpose of the improvement, presents no constitutional objection. It cannot be said that personal property situated within such a district does not derive a certain benefit from the improvement. It, with real property, is equally subject to damage from overflow, and with perfect justness may be taxed for such an improvement. Gilson v. Board of Commissioners, 128 Ind. 65, 27 N. E. 235, 11 L. R. A. 835.

The Laney Act did not by implication repeal the Canales Act, though it was a later act of the same session of the Legislature. As clearly indicated by its caption, the intention of the Canales Act, in the main, was to provide an act whereby certain districts formed under the authority of section 52, article 3, of the Constitution, might become conservation and reclamation districts under its authority and thereby avail themselves of the larger taxing power conferred by section 59 of article 16. The Laney Act deals, it is true, with the same general subject, but it is clear that its principal purpose was to make provision for the creation of original districts with' such ampler powers. It declares in one section that levee districts organized under other laws may avail themselves of its privileges and the taxing authority conferred by section 59 of article 16 by following a procedure which in some degree differs from that prescribed by the Canales Act with respect to levee districts becoming conservation and reclamation districts. In an independent section it declares that it shall not be construed as repealing any law upon its subject passed at that session, but that any such law shall be deemed cumulative of it. Implied repeals are never favored. In view of this explicit declaration it cannot be held that the Laney Act impliedly repealed the Canales Act.

The bond issue in question is entitled to receive the Attorney General’s approval, and the writ of mandamus prayed for is accordingly allowed.

HAWKINS, J.

I concur. But I prefer to say, expressly, that the effect of the Canales Act is to incorporate therein, for certain purposes, not all of the Act of 1915, c. 146, but that act “except as * * * otherwise provided” in the Canales Act.
      (g^>For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    KNIGHT v. STATE.
    (No. 5097.)
    (Court of Criminal Appeals of Texas.
    Dec. 18, 1918.)
    1. Homicide <§=>300(7) — Assault to Murder —Sedf-Defense—Evidence.
    Although defendant testified that he shot twice to protect his father, and that the third shot was accidental, held, in view of other evidence, that-court should have instructed on defendant’s right to defend himself as well as upon his right to defend his father.
    2. Homicide <§=>297 — -Instructions—Excuse.
    In view of presumption of innocence, evidence establishing facts which, if true, would mitigate or excuse assault to murder, required an instruction on the law applicable thereto, regardless of the source from which the evidence came, and notwithstanding it presented a defensive theory out of harmony with that advanced by defendant.
    Appeal from District Court, Wood County; J. R. Warren, Judge.
    R. L. (Pal) Knight was convicted for assault to murder, and appeals.
    Reversed and remanded.
    Jones & Jones, of Mineóla, and M. D. Oarlock, of Winnsboro, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This is an appeal from a conviction for an assault to murder with punishment fixed at two years’ confinement in the state penitentiary.

R. D. Knight, appellant, fired at Crosby twice, and fired a third time, whether- at Crosby or by accident the evidence is in conflict. R. P. Knight, appellant’s father, went into a business house and attacked Crosby with a stick, which was a deadly weapon. Crosby seized the stick; a scuffle ensued, in which R. P. Knight retreated or was pushed by Crosby out of the building, across the sidewalk, and onto the street where he fell. During the struggle appellant fired the first shot which struck Crosby on his wrist. The evidence is somewhat Conflicting as to the exact position of the stick at the time -this shot was fired, but there is testimony from which the conclusion might be drawn that at the time Crosby had the stick and appeared in the act of striking or preparing to strike appellant’s father with it. Immediately after the first shot was fired Crosby turned his attentions to appellant, who fired again, striking Crosby’s watch, which was in his vest or trousers pocket. When the third shot was fired, Crosby appears to have had the stick raised to strike appellant. Crosby claimed that this shot was fired at him and dodged by him, while appellant claimed that it was fired involuntarily by reason of a struggle with a bystander who has seized him and his pistol.

There is evidence justifying the inference that R. P. Knight, with the knowledge and acquiescence of appellant, sought Crosby for the purpose of making an unlawful attack upon him, and that appellant accompanied him with the intent to engage in the contest, if necessary to bring it to a successful end. The theory also arises from the evidence that he accompanied his father in ignorance of the latter’s unlawful purpose, and that his interference was to protect his father from injury in a difficulty for the beginning of which appellant was in no way responsible.

The legal principles governing appellant’s culpability, if he was a conspirator with his father to injure Crosby, and his right to defend him, were embodied in the court’s charge in substance like their delineation in the Guffee Case, 8 Tex. App. 187. The right to defend, however, was confined by the court to the defense of his father, and not extended to appellant’s right to defend himself, and of this complaint was made in the trial court, and is here advanced for ground of reversal.

The trial court, in refusing to accord the appellant a charge on the law of self-defense, was doubtless controlled by the view that that issue was eliminated by appellant having in his own testimony claimed that he shot at Crosby twice to protect his father, and that the third shot was accidental. There being evidence aside from that of appellant that would have justified the jury in the finding that the third shot was fired at Crosby while he was in the act of striking appellant with the stick, which was a deadly weapon, and that immediately before the second shot was fired Crosby, holding the stick in his hand, turned toward and confronted appellant, the issue of defense of himself arose from the evidence. The jury may have believed that appellant was justified in firing the first time in the protection of his father, but have considered the other two shots fired unlawfully.

If they had received instructions from which they would have understood that, although the last two shots were not fired to protect the appellant’s father they might not have been unlawful if fired in protection of his own person, the verdict might have been more favorable to appellant.

The presumption of innocence protected appellant from the necessity of proving that his acts were lawful, and imposed upon the state the burden of establishing an unlawful assault.

Evidence going to establish facts which would, if true, mitigate or excuse the assault, required an instruction on the law applicable thereto, regardless of the source from which the evidence came, and notwithstanding it presented a defensive theory out of harmony with that advanced hy the appellant in his own testimony. Many examples of this principle are furnished in the reports of the decisions of this court. Bonner v. State, 29 Tex. App. 223, 15 S. W. 821; Sowell v. State, 32 Tex. Cr. R. 497, 24 S. W. 504; Folks v. State (App.) 58 S. W. 99; Carden v. State, 62 Tex. Cr. R. 607, 138 S. W. 396.

The judgment is reversed, and the cause remanded.
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author:
MORROW, J.
      PPJDNDERGAST, J.

text:
    MELTON v. STATE.
    (No. 5082.)
    (Court of Criminal Appeals of Texas.
    Dec. 18, 1918.)
    Criminal Law ®=511(1, 10) — Accomplices— COBBOBORATION.
    In view of statute as to required proof, conviction of perjury cannot be sustained upon testimony of two accomplices, or upon the testimony of one credible witness and one accomplice.
    Appeal from District Court, Hale County; R. C. Joiner, Judge.
    S. E. Melton was convicted of perjury, and appeals.
    Reversed and remanded.
    See, also, 197 S. W. 715.
    X. W. Holmes, of Plainview, for appellant.
    E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

The appeal is from a con-; vietion of perjury.

Appellant testified before the grand jury that he had not played cards in Hale county since January 1, 1916, and had not seen others do so.

To establish the falsity .of this testimony, the state relied on the evidence given by the witnesses Cox and Patrick, each of whom testified that he had played a game of cards with appellant in Hale county since January 1, 1916, and prior to the time appellant gave his evidence before the grand jury. The cross-examination of these witnesses developed facts from which the jury might have concluded that they entered into a conspiracy with appellant to commit perjury in suppressing the facts in regard to the game of cards mentioned. This evidence was held, in the former appeal of this case, to justify the inference that they were accomplices. Melton v. State, 197 S. W. 715.

The court instructed the jury that if they believed that both of these witnesses were accomplices, to acquit appellant, and, if they found one of them to be an accomplice and | the other not one, then before they could convict they must find the false statement has been established by one credible witness and strongly corroborated by other evidence. The correctness of this instruction was challenged on the ground that it was an indication that there was other evidence sufficient to corroborate an accomplice, and, because there was an absence of such other corroborating testimony, a special charge was also requested to the effect that corroboration could not be supplied by an accomplice, but that it must come from other sources.

In perjury the statute requires that the proof of the falsity of the statement declared on must be established by two credible witnesses, or by one such witness strongly corroborated by other evidence. This statute has been construed to differ from the general statute requiring corroboration of an accomplice’s testimony, in that in such statute it is required only that the corroborating evidence “tend” to connect the accused with the commission of the offense, while in the statute on perjury there must be, either two credible witnesses, or evidence equivalent thereto. This may be supplied by circumstances coming from credible or strongly corroborated witnesses; but it cannot be supplied by one credible witness and one who is not a credible witness, such as an accomplice. Grady v. State, 49 Tex. Cr. R. 3, 90 S. W. 38; Beach v. State, 32 Tex. Cr. R. 204, 22 S. W. 976; Branch’s An. P. C. § 851.

In the record before us, we fail to find other evidence of the falsity of the evidence given by appellant before the grand jury than that of Cox and Patrick. If these witnesses were believed by the jury to be accomplices, the appellant, under the record, should have been acquitted; and, if one of them be an accomplice, a like result should follow, upon another trial, unless there be further testimony which would corroborate that of the accomplice.

The third and fifth paragraphs of the charge are subject to criticisms, which, while possibly not such as to require reversal, are such as will doubtless be avoided in the event of another trial.

The bills relating to the manner in which the indictment was presented, we think, are without ‘ merit. The statute seems to have been complied with. Vernon’s C. C. P. art. 451, note p. 193.' If the minutes required correction, the record authorized the entry nunc.pro tunc.

The matters presented in the other bills are not such as require discussion, as they relate to incidents of the trial not likely to occur again.

The error pointed out requires a reversal of the judgment, which is ordered.

Reversed and remanded.

PPJDNDERGAST, J.

I am in doubt on the question on which a reversal is ordered, and express no opinion.
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