author: RAINEY, C. J.

text:
    AYCOCK v. ROSS et al.
    (No. 7131.)
    (Court of Civil Appeals of Texas. Dallas.
    Oct. 17, 1914.)
    COMPROMISE AND SETTLEMENT (§ 24) — PLEADING as Defense — Admissibility of Evidence.
    In an action for the balance due on a labor contract in which defendant pleaded a settlement of the differences between the parties and an agreement as to the amount then due, and that plaintiffs then had money belonging to defendant in excess of the amount due, while plaintiffs pleaded and testified to an agreement as to the amount due and a promise to pay such amount, which had not been performed, while defendant denied that there was any understanding that the amount would be paid at once, it was a question for the jury whether there was a binding settlement, and the court, therefore, properly admitted evidence as to the wort performed and transactions had prior to the settlement.
    [Ed. Note. — For other cases, see Compromise and Settlement, Cent. Dig. § 95; Dee. Dig. § 24.]
    Appeal from Grayson County Court; J. Q. Adamson, Judge.
    Action by J. W. Ross and others against J. W. Aycock. From a judgment for plaintiffs, defendant appeals.
    Reversed and remanded.
    Chas. R. Crenshaw and Jones & Hassell, all of Sherman, for appellant.

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

   RAINEY, C. J.

Appellant was sued by ap-pellees to recover for a balance due them on a labor contract,. claiming said balance to be $217, and the sum of $25 attorney’s fees. Appellant answered, pleading payment of all the sums due to appellees, except $28, which he tendered into court. A trial resulted in a verdict in favor of appellees for $258, and the court entered judgment accordingly.

_ The appellant complains of the admission of certain testimony of the appellee over his objection, as shown by appellant’s assignment of error as follows:

“The court erred in permitting plaintiff to testify, over the objection of defendant, that such testimony was irrelevant and immaterial, not pleaded, and in contravention of the settlement on the 16th day of March, 1913, that plaintiffs pleaded to their work, expenses, board bill, number of days worked, number of days idle, and all transactions had by plaintiffs previous to said settlement. Plaintiffs were permitted, over said objection of defendant, to testify to the facts above set forth, and defendant saved his exceptions to the court in so doing”

—and submits the following proposition:

“In a suit by one party against another for labor extending over a considerable period of time and for expenses incurred in the performance of said labor, and in which, during the performance of said labor, the laborer received from time to time partial payments on his work, and in which, during said time, the parties adjusted the differences that had arisen as to the •amount due for such labor and expenses, and fixed the sum due up to a certain date, and afterwards; from time to time, other labor is performed, on the trial of said suit it is error to ignore said settlement and go back behind same and admit items of labor and expenses that had been occasioned previous to said settlement.”

The appellant pleaded that a settlement of the differences between the parties was had and agreed upon on or about the 3d of April, 1913, which included all the amounts due for labor performed and all amounts due for expenses incurred by appellees prior to said settlement; that prior to said settlement ap-pellees had collected on the work done for appellant sums of money in excess of the amount due the appellees, and they, at said time, were due him the sum of $29. Appel-lees by supplemental petition denied making the settlement pleaded by appellant, but say, in effect, that on or about the 16th day of March, plaintiff offered to pay $72 for expenses and the further sum of $432 for work performed, which were to be paid promptly on appellant’s return to Collinsville, Tex.; that he did not pay said amounts as promised, but failed and refused to consummate said settlement. These pleadings' raised the issue whether or not there was a binding settlement between the parties. One of the ap-pellees testified that there was an agreement as to the amount of work and expenses which was to be paid by appellant at once, which was not done. Appellant denies that there was any understanding that said amount would be paid at once. But it is contended that appellees collected on work due appellant sums of money in excess of what was due appellees, and there was no reason for appellant to enter into such an agreement. Under the pleadings and evidence we do not think the court erred in admitting the evidence. The parties differed as to' the time when the agreed amount of settlement was to be paid, and this was a question for the jury. If appellees collected moneys due appellant for work, and at the time the settlement was made had in their possession more of appellant’s funds than was sufficient to liquidate said amount, there was no need for appellant to pay them anything, or if appellees collected the $240 for work due appellant and applied it to the amount fixed in settlement, or if no time was fixed by the terms of said agreement for appellant to pay, then said settlement was binding. The evidence admitted having raisefi these issues, the court should have instructed the jury as to the law governing the case made thereby.

Appellant complains that the verdict is excessive in amount. We are of the opinion that this assignment should be sustained. When the facts are duly considered, the recovery is greater than appellees are entitled to, but the exact amount of excess is not so definitely shown as to warrant a reversal and rendering judgment, but the evidence does warrant a reversal and remanding of the cause; and it is so ordered.


source: Caselaw Access Project

author: JENKINS, J.

license: Public Domain

text:
    CROSBYTON-SOUTHPLAINS R. CO. v. RAILROAD COMMISSION OF TEXAS et al.
    (No. 5409.)
    (Court of Civil Appeals of Texas. Austin.
    June 24, 1914.
    Rehearing Denied Oct. 28, 1914.)
    1. Railroads (§ 216) — Spur Tracks — Location — Railroad Commission — Jurisdiction —“Business’ ’ — ‘ ‘Business Tendered . ’ ’
    Rev. St. 1911, art. 6715, provides that all railroads shall be required to build sidings and spur tracks sufficient to handle the business tendered to them, when ordered to do so by the Railroad Commission, and article 6716 provides penalties for failing to comply with such orders. Held that, while article 6715 is in a sense penal, it should nevertheless be construed so as to carry out the intention of the Legislature, and, as so construed, the word “business” means public business, and the words “business tendered” are not to be restricted to business offered only at terminal and junction points and places established by a railroad company for receiving and discharging passengers and freight, but include business existing at points on the railroads which would be given to the company at such points if proper facilities were furnished, referring to the capacity of the tracks when built rather than to the place where th'ey are required to be built; the words “sidings and spur tracks” being used in contradistinction to stations or depots.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 713; Dee. Dig. § 216.

    For other definitions, see Words and Phrases, vol. 1, pp. 915-926; vol. 8, pp. 7593, 7594.]
    2. Carriers (§ 40) — Public Business — Facilities — Duty to Furnish.
    It is a common-law duty of railroads to furnish reasonable facilities for the transaction of public business.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 120-122; Dec. Dig. § 40.]
    3. Constitutional Law (§ ,62) — Delegation of Legislative Power — Railroad Commission — Powers — Railroad Facilities — Spur Tracks.
    The Legislature may properly leave to the discretion of the Railroad Commission the manner in which railroad companies in the state shall perform their duties to furnish reasonable facilities for the transaction of the business, including the time when, and the place where, specific facilities shall be furnished; precaution against the abuse of such discretion being provided by permitting an appeal to the courts.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 195-206% ; Dec. Dig. § 62.]
    4. Constitutional Law (§ 251) — “Due Process of Law.”
    Want of due process of law may arise either from the fact that the law attempted to be enforced is void and is therefore no law, or that the forms of the law have not been observed, for which reason the party against whom the law is attempted to be enforced has not had his day in court.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 726, 727, 732; Dec. Dig. § 251

    For other definitions, see Words and Phrases, vol. 3, pp. 2227-2256; vol. 8, p. 7644.]
    5.Railroads (§ 216) — Regulation — Spur Tracks — I nstallation.
    Evidence held to show the reasonableness of an order of the Railroad Commission requiring a railroad company to install a spur track for the receipt and delivery of car load freight at a particular town established on its line, both from the standpoint of the public and from a consideration of the financial condition of the railroad company.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. § 713; Dee. Dig. § 216.]
    6. Railroads (§9) — Public Service — Duty to Furnish — Remuneration.
    The fact that a particular public service required of a railroad company by the state may not be immediately remunerative is no reason for relieving the railroad company of the duty to perform it.
    [Ed. Note. — For other eases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.]
    7. Railroads (§ 9) — Spur Tracks — Installation — Order of Railroad Commission— Issues — Evidence.
    Where, in a suit to restrain enforcement of an order of the Railroad Commission requiring the installation of a spur track at R., complainant alleged that the people of R. were actuated by spite in building that town, evidence that complainant’s manager stated to citizens of E., located some distance from the railroad, prior to the location of R., that there would be no depot or town between the starting point of the road and L., that only a switch would be built in the vicinity where C. and R. were subsequently located, that the C. Townsite Company refused to sell any lots in C., that such company was owned and controlled by the railroad officials, that R. was the nearest point to E. on the railroad where lots could be purchased, that the town of R. was laid out before a depot was built at C., and that he would spend a million dollars to destroy R., was admissible.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. §§ 12-19; Dec. Dig. § 9.]
    8.Railroads (§ 10) — Shipping Facilities— Spur Tracks — Installation — Mode of Procedure — Jurisdiction of Court.
    The Legislature having provided a specific method for compelling railroad companies to furnish adequate spur tracks and shipping facilities by means of proceedings before the Railroad Commission, as provided by Rev. St. 1911, arts. 6715, 6716, such method_ is exclusive; and hence the courts have no jurisdiction to enforce the statute until the matter has been first presented to and passed on by the commission, and then only to determine whether the commission’s order is unjust and unreasonable.
    [Ed. Note. — For other cases, see Railroads, Cent. Dig. § 11; Dec. Dig. § 10.]
    Appeal from District Court, Travis County; C. A. Wilcox, Judge.
    Suit by the Crosbyton-Southplains Railroad Company against the Railroad Commission of Texas and others. Judgment for defendants, and complainant appeals.
    Affirmed.
    J. W. Burton, of Crosbyton, and Chas. Rogan, of Austin, for appellant. B. F. Looney, Atty. Gen., and Luther Nichels, Asst Atty-Gen., for appellees.

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

       For other cases se» same topic and section NUMBER in Dec. Dig. & Am, Dig. Key-No. Series & Rep’r Indexes

   Statement of the Case.

JENKINS, J.

This suit was instituted by appellant against appellee the Railroad Commission on December 18, 1913, praying for an injunction to restrain said appellee from enforcing the following order, to wit:

“Railroad Commission of Texas.
“Austin, Texas, December 3, 1913.
“Hearing No. 1419. Ralls on Crosbyton-South-plains Railroad. Petition for Depot and Station Facilities.
“The above numbered and entitled cause having been called for hearing by the Commission at its November term, 1913, in .pursuance of notice duly given herein under date of June 9, 1913, and the Commission having heard the evidence offered and facts presented by both the petitioners and the respondent railway company herein, and having duly considered the same., is of the opinion that the prayer of the petition herein should be granted. It is therefore hereby ordered by the Railroad Commission of Texas that the Crosbyton-Southplains Raii-road Company be and it is hereby ordered and required to provide and thereafter to maintain, at the point on its line of railroad where the town of Ralls is located, an adequate and sufficient spur or side track for the accommodation of cars to be loaded with such car load ship-meets of freight as it may be the desire of shippers to load at that point, and for the unloading of cars containing car load shipments of freight to be unloaded at that point. It is further ordered that said above-named railroad company be and it is hereby required to place on said spur or side track all empty cars demanded by shippers for the loading of car load shipments of freight thereon, as well as all cars containing car load shipments of freight where the unloading of same is demanded at that point. It is further ordered that, within 20 days from this date, this Commission be advised in writing by said above-named railroad company of the exact location in said town of Ralls, and the length of the spur or side track proposed by it to be provided in pursuance with the requirements of this order, in order that it may judge of the suitableness and adequacy thereof and for its approval, and that said spur or side track be completed and ready for use on or before 60 days from this date.
“[Signed] William D. Williams,
“Earle B. Mayfield,
“Commissioners.”

A temporary injunction was granted. On January 29, 1914, after trial on the merits before the court without a jury, judgment was rendered denying the relief prayed for by appellant, and ordering appellant to carry out the order of appellee.

Appellant alleged in its petition, as grounds of relief against the order of appel-lee above set out: That, if appellee has any power to order sidings and spurs, it can do so only when such sidings and spurs are for public use, and then only at (1) places of starting; (2) junctions of other roads; and (3) sidings and stopping places already established. That appellant was incorporated April, 1910, to build a railroad from Crosby-ton to Lubbock, a distance of 39 miles, and immediately thereafter located its right of way and its depots as follows: Crosbyton; Cedric, 11% miles west of Crosbyton;' Lorenzo, 18i/i0 miles west of Crosbyton; Ida-lou, 26Vio miles west of Crosbyton; and at Lubbock. Thát the country at that time was sparsely settled. That Cedric is conveniently located to transact all business offered the railroad in- the territory immediately east and west and north and south for 20' miles, being the same territory that is adjacent to Ralls, and that it has supplied all necessary facilities at Cedric for the transaction of such business. That there was no town at Ralls at the time it located its depot at Cedric, and that the people who moved to Ralls did so spitefully and maliciously, with the intention of forcing appellant to abandon its station facilities at Cedric and establish others at Ralls. That said order is unjust and unreasonable as to appellant for reasons set out in appellant’s petition.

The Railroad Commission answered by general demurrer and general exception, and alleged that the appellant was guilty of gross abuse of its discretion in locating its railway station, and that its action was an intentional effort and purpose to promote the financial interest of one locality as against another, and to discriminate against the people and locality of Ralls in favor of the locality and owners of Cedric, and alleged facts intended to show the reasonableness of said order.

After the answer of the ’Commission had been filed, the state of Texas, through its Attorney General, filed by permission of tha court a plea of intervention, adopting the plea of the Commission and alleged facts intended to show a public necessity for a station at Ralls, and prayed for a mandamus requiring the appellant to put in such spur track, and in the event such relief should not be granted, and it should be held that the Railroad Commission was without authority to require appellant to put in the spun track at Ralls, that it be granted a mandamus or mandatory injunction, requiring appellant to put in a station with all necessary facilities.

After the evidence had all been heard, the court sustained appellant’s exception to the state’s plea of intervention, to which the state excepted,' and rendered judgment against appellant, dissolving the temporary injunction against the Commission theretofore granted.

The case was tried before the court without a jury, and, upon request of appellant, the court filed findings of fact, which we adopt as follows:

“(1) In the early part of the year 1910 the plaintiff railroad company caused a survey to be made of a line of railroad beginning at Cros-byton and extending west. According to this survey and the plats thereof, a station was to be maintained at Crosbyton; another at a place designated as Cedric, ll2/io miles west of Crosbyton; another at Lorenzo, 182/10 miles west of Crosbyton; and another at Idalou, 27 miles west of Crosbyton. -After the survey of said road and designation of stations as aforesaid, construction work was begun on same, and .the railroad began operations on April 10, 1911. A station was first built at Crosbyton, and upon the completion of same early in August, 1911, the plaintiff company began the construction of stock pens, etc., at Cedric, and completed its improvements, including a depot building, by September 25, 1911.
“(2) At the time said railroad was first surveyed; and began operations, the surrounding country was sparsely settled, and no persons then lived at the place designated as Cedric nor at the place now occupied by the town of Ralls. The nearest post office and town was a small town known as Emma, located about 3% miles south of the station of Cedric. At the time the site now known as Cedric was located as a station, and at the time the railroad company’s improvements were erected there, it was well and centrally located with reference to the surrounding territory and reasonably convenient for the people to be served by said station. No station,agent was maintained at Cedric until February, 1913, since which date the railroad company has maintained a station agent at said point. The railroad facilities at Cedric (such as depot buildings, side tracks, and stock pens) are, reasonably adequate to handle the business of the territory adjacent thereto. There has never been any business conducted at Cedric, outside of the business conducted by the railroad company, until recently, when a blacksmith shop was moved to said point and is now being operated there. The population of Cedric consists of the station agent and Ms wife, the blacksmith and his family, and possibly two or three other persons.
“(3) Prior to the construction of the plaintiff’s line of railway, Mr. Bassett, one of the promoters of said road, and since its organization, an officer thereof, caused it to be understood by the citizens of Emma and the surrounding country that no town would be located by said railroad company between Crosbyton and Lorenzo, but that a switch would be installed in the locality of the point now designated as Cedric, and prior to the building of the town of Ralls no inducements were offered the citizens of Emma or others to build a town at Cedric; the attitude of the persons in control of said railroad company, and those in control of the land immediately surrounding the station of Cedric, being such as to discourage, if not to actually prevent, the building of a town at said point.
“(4) Many persons residing and doing business in the town of Emma, desiring to build a town at some point in the community and on the railroad, made arrangements with the owner of the land, which resulted in a site being surveyed and located for a town at the place now designated as the town of Ralls, which is situated about 1% miles east of the station of Cedric. In the latter part of July, 1911, a building was moved to the present site of Ralls, and the post office was moved from Emma to said building. Prom that time on, during the month of August, 1911, and the fall of that year, many persons moved to the town of Ralls, erecting houses or moving houses to said town, and there has been a gradual growth in the population of Ralls down to the present date. The inhabitants now number 300 or more, and considerable business is transacted there. By far the larger part of the freight received at the station of Cedric is destined to the town of Ralls, and much the larger portion of the dead freight shipped out of the station at Cedric either originates in the town of Ralls or is purchased and weighed in the town of Ralls before it is carried to the station at Cedric'for shipment. Several car loads of freight are each week received and shipped out from the station of Cedric, the greater portion of which, as above stated, originates at or is destined to the town of Ralls.
“(5) The town of Ralls is connected with the station at Cedric by a public road, which, on account of a depression extending over a portion of it, is at times impassable; a considerable detour over private lands having to be made in order to reach the station. Some of the business houses in the town of Ralls are about two miles distant from the station at Cedric. Freight is carried between the station and the town of Ralls by wagons and drays; seven or eight teams being engaged in this business.
“(6) The necessary expense to the plaintiff railroad company in constructing the improvements as ordered by the Railroad Commission at the town of Ralls will be about the sum of $1,000. The enforcing of said order would also entail some slight delay in the train schedules on the plaintiff’s railroad, and also some small incidental expense, by reason of the necessity of stopping their trains to do the additional switching at Ralls, and would also probably cause the railroad company some trouble in preventing passengers from entering and leaving its trains at said point.
“(7) During the year ending June 30, 1913, the earnings of the plaintiff railroad company amounted to $39,905.36. During the same period the expense of operation amounted to $36,-199.52, and the fixed charges were interest, $27,585.50, and taxes, $2,089.02.
“(8) The facts in this case do not show that the enforcement of the order of the Railroad Commission, which is sought to be enjoined in this cause, would be unreasonable or unjust to the plaintiff railroad company.”

Opinion.

The decision in this ease involves the construction of article 6715, R. S., which reads as follows:

“All railroads in Texas shall be required to build sidings and spur tracks sufficient to handle the business tendered such railroads, when ordered to do so by the Railroad Commission, as hereinafter provided.”

This article is section 1 of the act of March 27, 1903, section 2 of said act is article 6716, R. S., and reads as follows:

“Power is conferred on the Railroad Commission of Texas .to require compliance by railroad companies with the provisions of section 1 of this act, under such regulations as said Commission may deem reasonable, and all railroad companies shall be subject to the penalties prescribed by law for failure to comply with the requirements of the Railroad Commission as herein provided.”

Article 6672, R. S., provides for punishment by fine of not more than $5,000 for violation of any lawful order of the Railroad Commission.

Appellant insists that the rule with reference to the construction of penal statutes should be applied to article 6715, supra. Statutes which inflict a penalty for their breach, independent of' the damages occasioned thereby, are penal in their nature and should be strictly construed. Railway Co. v. State, 100 Tex. 420, 100 S. W. 766; Railway Co. v. Blocker, 48 Tex. Civ. App. 100, 106 S. W. 719; Railway Co. v. Slator, 7 Tex. Civ. App. 344, 26 S. W. 233. But such statutes must not be so strictly construed as to defeat the obvious purpose of the Legislature. Railway Co. v. Voss, 49 Tex. Civ. App. 566, 109 S. W. 985; U. S. v. Wiltberger, 5 Wheat. 76, 5 L. Ed. 42. This rule of construction, as also the one for which appellees contend, viz., that article 6715 is remedial in its nature, and therefore should be liberally construed so as to effect its evident purpose, should be resorted to only when, after applying other rules, there remains a substantial doubt as to the meaning of the statute.

The primary rule of construction is that words, not technical in their nature, should be taken in their ordinary acceptation. Engelking v. Von Wamel, 26 Tex. 471. A departure from this rule is, however, required when the context or other statutes in pari materia show that they were not intended to be so used. When the intention is made manifest, it will not be sacrificed to a literal interpretation of the words used. Russell v. Farquhar, 55 Tex. 355; Witherspoon v. Jernigan, 97 Tex. 98, 76 S. W. 447.

Another rule limiting the ordinary meaning of words is that the Legislature will not be presumed to have included in a general description anything which it could not legally include. Applying this rule, it was held in Railway Co. v. R. R. Commission, 98 Tex. 67, 80 S. W. 1141, that it was not intended, by enacting article 6715, to confer upon the Railroad Commission the power to compel railroads to build a spur track for the aceom-modation of an individual, but that the word “business,” in said article, means public business.

The language used in article 6715 is broad enough to include switches and spur tracts at any place, unless they are limited by the word “tendered.” Appellant insists that business cannot be “tendered” to a railroad in the sense in which that term is ordinarily understood, except at a place where it has facilities for transacting its business, viz., at its depots or at its sidings or spurs theretofore established by it, and that this construction is sustained by the decision in R. R. Commission v. Railway Co., 102 Tex. 393, 117 S. W. 794. That decision is in effect that inasmuch as article 6552 (4494) R. S., requires railroads to furnish sufficient accommodations for the transportation of freight and passengers at their places of starting, and as Texhoma was one of the- appellee’s starting places by virtue of its being on the state line, and inasmuch as article 6654 (4562) makes it the duty of railroads to maintain adequate depots at their several stations, and as article 6589 (4519) makes it the duty of railroads to erect suitable buildings, etc., at each of their stations, the use of the word “accommodations” should be construed .to require the railway company to erect a depot building and maintain a station at Tex-homa, though the company received and discharged freight and passengers at suitable buildings 870 feet distant in Oklahoma. We do not think that this decision is in point in the instant case. Appellant’s contention is that this decision holds that railroads are required to receive freight and passengers at only three points, to wit: (1) Places of starting; (2) junctions of other roads; and (3) places established for receiving and discharging passengers and freight. True, these are the only places mentioned in article 6552 which was under consideration in the foregoing case, but it does not follow that other articles of the statute may not require freight and passengers to be received at other points when so ordered by the Railroad Commission.

We do not think that the words “business tendered,” as used in article 6715, should be given the restricted meaning contended for by appellant, but that they mean public business existing at points on railroads which would be given to the company at such points if proper facilities were furnished. • Also that they refer to the capacity of the tracks when built, rather than to the place where required to be built. •

The words “sidings and spur tracks” are not usually applied to side tracks at depots, but to the tracks other than the main lines at places where there are no depots or agents to receive or forward freight or passengers. Such places are often denominated sidings or spurs, in contradistinction to stations or depots.

It must always be presumed that the Legislature had some purpose in view in enacting a statute, and that this purpose was to remedy an existing evil by the amendment of an existing statute, so as to limit or extend, as the case may be, an existing law or to supply a defect by passing a new law. Article 6715 was enacted in March, 1903 (Acts 28th Leg. e. 68). The caption is:

“An act requiring railroad companies to construct sidings and spur tracks, and giving the Railroad Commission power to require construction of same.”

Under the construction given to article 6552 by our Supreme Court in Railway Co. v. R. R. Com., 98 Tex. 67, 80 S. W. 1141, it cannot be doubted that it was the duty of railroads to construct all necessary side tracks, switches, and spurs at their stations. This, article had been the law in this state since 1853. See Paschal’s Dig. art. 4893; Caramel's Texas Laws, vol. 3, p. 1340. If it was the purpose of the Legislature to specifically empower the Railroad Commission to enforce this law as to the places mentioned in article 6552, viz., starting places, junctions, and established stations, it would seem that the obvious thing to have done would have been to have amended this article by adding a clause conferring such authority. This is just what the same Legislature that passed the act of March, 1903, did do in May, 1903. See Acts Called Session, p. 21. If; on the other hand, the only thing intended by the Legislature in passing the act of March, 1903, was to confer upon the Commission power to enforce the provisions of article 6552, then the act of May, 1903 was useless, and the Legislature of 1911 did a useless thing in bringing article 6715 forward in the Revised Statutes.

Again, it may well be supposed that if the Legislature meant that the provisions of the act of March, 1903, should apply only to the provisions of article 6552, and make the word “accommodations,” as used therein, more specific by adding the words “sidings and spur tracks,” some reference would have been made to that article. No such reference is made in either the caption or the body of the act. We think that the Legislature ■thought that the laws then on the statute books required the railroads to build sidings and spur tracks only at their stations, and that this was inadequate to the public needs, and for that reason enacted article 6715. We are confirmed in this opinion by the declaration in the emergency clause of the act that:

“There being no adequate law now in force providing that railroads in Texas shall build sidings and spur tracks,” etc.

We think that the Legislature intended, by enacting article 6715, to require sidings and spur tracks to be built at places other than their stations, when ordered so to do by the Railroad Commission.

Under the common law,- which is expressly declared to be in force in this state as to carriers (article 707, R. S.), it is the duty of railroads to furnish reasonable facilities for the transaction of public business, Our statutes in reference to building depots, keeping them lighted and warmed, etc., are but legislative declarations of what is deemed necessary for railroads to do in order to discharge their common-law liabilities.

It cannot be doubted that the Legislature has the power to leave it to thé discretion of the Railroad Commission as to the manner in which such duties shall be performed, including the time when, and place where, specific facilities shall be furnished; a precaution against the abusé of such discretion being provided by permitting an appeal to the courts.

It is the contention of appellant that, if article 6715 be so construed, as to authorize the Railroad Commission to require appellant to put in a spur track at Ralls, such article is in violation of the Constitution of the United States and of this state in that the effect of such order is to take appellant’s property without due process of law.

Want of due process of law may arise either from the fact that the law attempted to be enforced is void, and is therefore no law, or that the forms of the law have not been observed, for which reason the party against whom the law is attempted to be enforced has not had his day in court. The latter objection is not urged in this case. The appellant had a hearing upon the merits before the Commission; it had a fair trial in the district court and is now prosecuting its appeal in this court. Such being the facts, this case is in' a different class from Railway Co. v. Minn., 134 U. S. 418, 10 Sup. Ct. 462, 702, 33 L. Ed. 980.

From the standpoint of public service, it cannot be said that the order requiring a spur track to be put in at Ralls is unreasonable. The evidence shows that Ralls is a rapidly growing town, and though but two years old at the time of the trial herein, with no depot, spur track, or siding, it had more than 300 inhabitants, and 28 business establishments, including a bank. It had a gin at which between 1,500 and 1,600 bales of cotton had been ginned during the season of 1913, and the ginning season had not closed; a two-story brick .schoolhouse, erected at a cost of $17,000; a Masonic hall; a Woodman hall; a church; a post office, which supplies by star route the county seat of an adjoining county and three other post offices. It has a trade territory extending from 15 to 18 miles in every direction, which is being rapidly settled up by.farmers, and which produces cotton, corn, wheat, oats, Kaffir corn, milo maize, and broom corn. These facts show a public necessity for shipping facilities at Ralls, at least to the extent of a spur track, as ordered by the Commission.

Appellant’s reply to this is that Cedric is in the same trade territory as Ralls, and has sufficient shipping facilities to accommodate the business. This is true, but the business does not come to Cedric. There are no business establishments there, except a blacksmith shop, recently induced by the Cedric Townsite Company to remove from Ralls, no gin, no cotton buyers or grain dealers, no sellers of merchandise or buyers of produce, no post office, no church, no schoolhouse, no public halls, no inhabitants, except the station agent and blacksmith and their families, and perhaps two others. If it be said that the people who are at Ralls could have settled at Cedric, a sufficient answer is they did not do so, and the railroad company has no right to punish them for not so doing. But they could not have done so. All of the-lots in Cedric are owned by the Cedric Town-site Company. The stockholders in the Cedric Townsite Company are practically the same as the stockholders in the C. B. livestock Company. The stockholders in the C. B. Livestock Company are practically the same as the stockholders in the railroad company, appellant herein. The facts in evidence make it apparent that each of these corporations was opposed to a town’s being built at any point on the road east of Lorenzo, for the reason that the C. B. Livestock Company owned a large body of unimproved, land through which the road was constructed, and of which Lorenzo was nearer the center. Their lands extended only about 1% miles east of Cedric. Lorenzo is 6.9 miles west. The appellant’s road was built 3% miles north of the town of Emma, which was the county seat of Crosby county. The county seat has since'been moved to Crosbyton, the starting point of appellant’s road. The people of Emma desired to settle at a point on the railroad in their vicinity. Ralls was the nearest point where they could. obtain title to land, and consequently the town of Emma was practically moved to Ralls. Is the order of the Commission unjust and unreasonable to the appellant, viewed from a financial standpoint?

Railroads are, as declared by the Constitution of this state (article 10, § 2), public highways. They perform a function, and governmental powers are delegated to them from motives of public policy. It is presumed that the government will do no wrong, and therefore it is presumed, when it invites the investment of private capital in public service corporations, that it will not require the business to be conducted at a loss to the investors.

It does not follow, however, that, because a particular public service would prove unremunerative to a railway company, the state may not lawfully require it to be performed, especially when such loss would be only temporary. Under some circumstances, the rights of the companies and bondholders are subordinate to those of the public. See authorities cited in the brief of Attorney General Culberson in Reagan v. Loan & Trust Co., 154 U. S. 362, 14 Sup. Ct. 1047, 38 L. Ed. 1019. The business at. Cedric, about 95 per cent, of which comes' from- the town of Ralls, barely meets the expense of maintaining that station. A spur track at Ralls would involve a slight increase in expenses. But the necessity for a spur track at Ralls is such as to require that the same he built and operated, though the appellant, under conditions as they existed at the time of the trial, will suffer a slight loss thereby. But it may fairly be inferred that such condition will not long continue. The population and production of the trade territory of Ralls is increasing, as is also the population and business of the town.

Appellant alleges that it is already operating its road at loss, and therefore should not be required to incur any additional expense. The total earnings of appellant’s railroad for the year ending June 30, 1913, were $39,905.36; its total expenses for the same period, including $27,585.50 interest, were $65,874.14. But this showing of a loss in the operation of the road does not necessarily imply a loss to the stockholders by reason of their having built and operated said road. As stated, the stockholders of the railroad company are also the stockholders of the O. B. Livestock Company, who incorporated and built the road for the evident purpose of enhancing their lands. There is nothing in the record to indicate that their expectations in this regard have not been realized, and that the railroad has not in fact proven a profitable investment to them. . Nor are we justified in inferring that the income of the railroad corporation itself will not in the near future exceed its operating expenses. The burden being upon appellant to show by clear and satisfactory evidence that the order of the Commission is unreasonable and unjust as to it, no presumptions should be indulged' against such order. As to the fact that the spur , track would cost $1,000, that evidently did not influence appellant in its refusal to comply with the order. The citizens of Ralls offered, before this suit was brought, to bear all the expense of building the track, and renewed their offer in open court upon the trial hereof.

Appellant assigns error, upon the admission of testimony to the effect that Julian W. Bassett stated to the citizens of Emma, prior to the location of the town of Ralls, that there would be no depot and no town between Crosbyton and Lorenzo, and that only a switch would be built in the vicinity of where Cedric and Ralls are now located; that the Cedric Townsite Company refused to sell any lot in Cedric; that Ralls was the nearest point to Emma on the railroad where lots could be purchased; that the town of Ralls was laid out before a depot was built at Cedric; that Ralls would not have been made a town site if lots could have been bought at Cedric; and that Bassett said he would spend a million dollars to destroy Ralls. Bassett was the general I manager of the railroad company, of the livestock company, and of the townsite company. The objection to this testimony was that it was irrelevant and immaterial. Appellant alleged that the people of Ralls were actuated by spite in building that town. The testimony was relevant to this issue. If this issue was immaterial, it was the appellant that injected it into the case. If the admission of this testimony was error, it was harmless, inasmuch as the proper judgment was rendéred, regardless of the motive of the parties hereto.

The state has filed cross-assignments as to the action of the court in sustaining exceptions to its plea of intervention. We are not certain that the state was a proper party to this suit in any event. Upon this point, however, we do not pass.

It is the contention of the state that it is the common-law duty of appellant to establish reasonable shipping facilities at Ralls, and that the allegations of its plea of intervention show that a spur track at that place is such reasonable facility, and that the court, at .the suit of the state, may compel the appellant by mandamus to build such track. If it be conceded that this is a correct statement of the common law, and that the common law, as it is applicable to railroads, has been adopted in this state, still we think that where the Legislature has adopted a specific method of ascertaining whether or not' a particular thing shall be required of a railroad in order to discharge its common-law duties as a common carrier, and has adopted a particular method of enforcing such duty, such method of ascertaining the fact and of enforcing the duty supersedes the common law on the subject. The common-law method of ascertaining the fact involved in this case, viz., the necessity for a spur track at Ralls, was by a trial in court upon petition of the state for mandamus. The method adopted by our statute is an investigation by the Railroad Commission. The method of enforcing the judgment of the court, should mandamus be granted, is by fine and commitment for contempt; the method of enforcing the order of the Commission is by suit for penalties for disobeying such order. The court has no jurisdiction to enforce the statute until the matter has been first passed upon by the Com- • mission, and then it only determines whether or not the order of the Commission is unjust and unreasonable as to the railway company complaining of the same. Such being our view of the law, we’ do not think the trial court erred in sustaining the exceptions to the state’s plea of intervention, in so far as it related to the spur track.

Unless the Railroad Commission had authority to require the appellant to build and maintain a depot at Ralls, which point is not involved in this case, the right of the state, if any it had, to intervene for the purpose of requiring the appellant to build and maintain a depot at Ralls would not be taken away by statute. But we are not called upon to pass upon this issue, inasmuch as the state’s prayer for a writ of mandamus to require the appellant to build a depot at Ralls was only in the alternative, in the event that it should be held that the Railroad Commission was without power to require the appellant to put in a spur track at Ralls.

■For the reasons stated herein, the judgment of the trial court is affirmed.

Affirmed.


text:
    NORTH TEXAS TRANSFER & WAREHOUSE CO. v. STATE.
    (No. 5403.)
    (Court of Civil Appeals of Texas. Austin.
    July 1, 1914.
    Rehearing Denied Oct. 28, 1914.)
    Taxation (§ 142) — Gross Earnings — Inter-urban Railroads — Express Companies.
    Rev. St. 1911, art. 7369, provides that corporations doing an express business by “railroad” or water within th'e state shall annually report to the comptroller their gross receipts and pay to the state treasurer an occupation tax'" equal to 2% per cent, of such gross receipts. Held, that the word “railroad,” as used in such act, is not limited to commercial steam railroads,‘but includes interurban electric railroads.
    [Ed. Note. — For other cases, see Taxation, Cent. Dig. § 270; Dec. Dig. § 142.

    For other definitions, see Words and Phrases, vol. 7, pp. 5899-5908; vol. 8, pp. 7777, 7778.]
    Appeal from District Court, Travis County ; George Calhoun, Judge.
    Action by the State of Texas against the North Texas Transfer & Warehouse Company. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Crane & Crane, of Dallas, for appellant. B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State.

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

   Findings of Fact.

JENKINS, J.

The following statement of the nature of this ease, and the material facts hereof, is taken from appellant’s brief and adopted by us:

“The state of Texas, hereinafter denominated appellee, by its Attorney General, brought its suit in the district court of Travis county, Tex., against the North Texas Transfer & Warehouse Company, hereinafter styled appellant, alleging in substance that appellant was a corporation organized under the laws of the state of Texas, and that it had been continuously since July 16, 1907, engaged in doing an express business by railroad in the state of Texas, and that by reason of the premises it was its duty on or before the 1st day of March of each year after said date to make a report to the comptroller of public accounts under oath, showing the amount of gross receipts on charges of freight within this state collected by or on account of said express business during the 12 months next preceding the report, and that it was its duty to pay to the treasurer of the state of Texas an occupation tax of 2% per cent, of gross receipts, as shown *by said report. It alleged that it had failed to do this. The gross receipts charged to have been collected by appellant during the respective years were stated as follows, to wit:.
For the year next preceding March 1, 1908. $ 13,007 20
For the year next preceding March 1, 1909. 34,369 05,
For the year next preceding March 44
For the year next preceding March 1, 1911. 63,002 10
For the year next preceding March 1, 1912. 66,166 06
For the year next preceding March 1, 1913. 103,253 81.
“It was then charged that under the terms and provisions of article 7369, R. S. 1911, same being section 1, c. 18, of the Acts of the Special Session of the Thirtieth Legislature, defendant became liable and bound to the state of Texas to pay a tax of 2y2 per cent, of said gross receipts for each of said years, amounting for each year to the following sums:
For the year next preceding March 1, 1908. 8 325 18
For the year next preceding March 1909. 859 73
For- the year next preceding March 1910. 1,254 24
For the year next preceding March 1911. 1,575 05
For the year next preceding March 1, 1912. 1,654 15
For the year next preceding March 1, 1913. 2,581 44
88,249 79
“It was alleged that it had failed to do this, and it therefore prayed for a judgment for the total amount of taxes, with 10 per cent, penalties thereon, amounting in the aggregate to $9,074.76.
“The appellant answered, in which it denied that it had ever been doing an express business on a railroad in the state of Texas, as alleged by plaintiff. It admitted that it had been doing an express business on interurban electric railways ; that the interurban railways upon which it has done business from time to time are the ones connecting Dallas, Tex., and Ft. Worth, Tex., Galveston, Tex., and Houston, Tex., Dallas, Tex., and Sherman and Denison, Tex., and latterly the one connecting Dallas, Tex., and Cleburne, Tex., by way of Ft. Worth, Tex.; and that on .these lines it did an express business, but it did no express business on any other lines, and' did no express business on any steam railway.
“It further alleged that the interurban electric railways upon which it did business were not chartered under the provisions of law authorizing the chartering of railroad corporations, but were chartered under statutes recently passed authorizing the creation of interurban electric railways; that the provisions of the laws controlling such matters are wholly dissimilar. It denied that it was its duty to make any report to the state or pay 2y2 per cent, gross receipts tax for any of the years named. It denied that it had, within the meaning of the law, willfully failed and refused to make reports for any of the years named in the third paragraph of plaintiff’s petition, because it averred that it was advised by legal counsel, and is now informed and believes, that it was not required by law to make report to the comptroller of public accounts as aforesaid, and that no report was ever demanded of it by the comptroller of public accounts, or by any officer of the state of Texas, until within the year 1913, and that it was then advised and is still advised that it is not its duty under the statute to make such reports; that the terms and provisions of the statute invoked by the plaintiff relate only to ■express companies doing business by steam railroads and not by electric railways or interur-bans. It admitted that it had collected the amounts of gross receipts on its express business transacted on interurban electric railways, as set out in plaintiff’s petition.
“The trial was had, a jury being waived, and resulted in a judgment against defendant company, appellant herein, for the sum of $8,249.79, with 10 per cent, added thereto, or $824.97, as penalties, making a total of $9,074.76. A motion for a new trial was filed within two days, and thereafter amended with leave of the court. This was on the 24th of April, 1914, overruled. Appellant gave notice of appeal to this court, and thereafter, on the 24th of April, 1914, filed its assignments of error, and on the 29th day of April, 1914, filed its appeal bond.”

Opinion.

The law of this case is determined, by the proper construction of article 7369, R. S., which reads as follows:

“Express Companies. — Each and ' every individual, company, corporation or association doing an express business, by railroad or water, in this state, shall, on or before the first day of March of each year, make a report to the comptroller of public accounts under oath of the individual or of the president, treasurer or superintendent of such company, corporation or association, showing the amount of gross receipts from charges and freights within this state paid to or collected by such individual, company, corporation or association on account of money, goods, merchandise or other character of freight carried within this state during the twelve months next preceding. Said individuals, companies", corporations or associations, at the time of making said report, shall pay to the treasurer of the state of Texas an occupation tax for the year beginning on said date equal to'two and one-half per cent, of said gross receipts, as shown by said report.”

It is the contention of appellant that the word “railroad,” as used in said article, does not include interurban railroads. In construing a statute, the thing to be ascertained is: What did the Legislature mean by the language used? For a discussion of the rules for the construction of statutes, see Crosbyton-Southplains Railroad Co. v. Railroad Commission, 169 S. W. 1038, decided at the present term of this court; also article 5502, and “Final Title,” section 3, R. S. There are decisions in this state and elsewhere which hold that the word “railroad,” as used in certain statutes, did not include street railroads. Scott v. Bank, 97 Tex. 58, 75 S. W. 7, 104 Am. St. Rep. 835; Riley v. Railway Co., 13 Tex. Civ. App. 247, 35 S. W. 826; Sams v. Railway Co., 174 Mo. 53, 73 S. W. 686, 61 L. R. A. 478; Railway Co. v. King (Tenn. Ch. App.) 59 S. W. 805; Electric Ry. Co. v. Simon, 20 Or. 60, 25 Pac. 147, 10 L. R. A. 251, 23 Am. St. Rep. 86. There are decisions in other jurisdictions to the contrary. The Supreme Court of the United States upon this point said:

“The statute in terms applies to carriers engaged in the transportation of passengers or property by railroad. But in 1887 that word had no fixed and accurate meaning, for there was then, as now, a conflict in the decisions of the state courts as to whether street railroads were embraced within the provisions of a statute giving rights or imposing burdens on railroads. The appellant cites decisions from 12 states, holding that in a statute the word ‘railroad’ does not mean ‘street railroad.’ The defense cite decisions to the contrary from an equal number of states. * * * This conflict is not so great as at first blush would appear.” O. & C. B. St. R. Co. v. Commerce Com., 230 U. S. 332, 33 Sup. Ct. 891, 57 L. Ed. 1501, 46 L. R. A. (N. S.) 385.

The court then explains that most of these decisions rest upon the context of the particular statute under consideration. As to those decisions wherein it is held that the word “railroad” does not include street railway, in order, to determine what weight, if any, should be given them in support of the proposition that the word “railroad,” when used without any qualifying word, means only those railroads known as steam or commercial railroads, we must look to the subject-matter of the statute-under discussion in each case, and the reasons given by the courts for their decisions,

In Scott v. Bank, supra, the issue was as to whether section 5, art. 10, of the Constitution of Texas,. which forbids the consolidation of competing or parallel lines of railroads, applied to street railways. It was held that it did not. The consolidation of street railways was clearly not within the mischief sought to be prevented by the Constitution, and the control of street railways was specifically intrusted to municipal authorities by section 7 of the same article of the Constitution.

In Riley v. Railway Co., the Honorable Court of Civil Appeals for the First District supposed that the Legislature did not intend to include street railroad employés in the benefits of the fellow servant act, for the reason that the danger to such employés was not sufficiently great to call for such legislation. The Legislature promptly, at its next session, declared that street railway employés should be included. R. S. art. 6642. The Supreme Court of Missouri, referring to the case of Sams v. Railway Co., supra, said that it was not intended to hold in that case that the word “railroad” excluded street railroads; that it might or might not do so, according to the connection in which the word was used. Biggs v. Railway Co., 120 Mo. App. 335, 96 S. W. 708.

In Electric Co. v. Simon, supra, the decision that the statute providing for condemnation proceedings for railroads did not apply to street railways was based upon the wording of the statute, and not upon the meaning of the word “railroad.” One reason for holding that statutes conferring the right of eminent domain on railroads were not intended to apply to street railways is that such' railroads run upon streets which they, do not own, permission to use which must be obtained from the municipal authorities, and therefore they are not presumed to need the right to condemn land for their right of ways. Another reason is that the exercise oí the right of eminent domain is taking property without the owner’s consent, for which reason “it is * * * a fundamental rule that all statutes in regard to eminent domain are to be given a very strict construction.” O’Neal v. Sherman, 77 Tex. 184, 14 S. W. 31, 19 Am. St. Rep. 743.

But whether the word “railroad” ordinarily does or does not include street railroads is not determinative of whether it includes interurban railroads. There are no such material points of difference between interurban railways and what, for want of a better name, we designate steam or commercial railroads, as there are between such railroads and street railroads. Appellant quotes from Scott v. Bank, supra, as follows:

“Ordinarily, when we speak of a railroad, we mean a railroad over which freight and passengers are transported from one town or city to another.”

This description is applicable to the interurban railroads over which appellant does business. Besides, in that case the matter under consideration was the construction of the constitutional provision forbidding the consolidation of parallel and competing lines of railroad. The purpose of this provision would suggest that it was not intended to apply to street railroads; and this is further indicated by section 7 of the same article of the Constitution. As was said in Malott v. Railway Co., supra:

“These electrical roads, in the speed of their trains, in the distances traveled, and in their capabilities for transportation, are well within the field of public utilities hitherto occupied by the steam railroads alone.”

Statutes in which the word “railroads” is used without any qualifying prefix or suffix have been held to apply to interurban railroads in the following, among other, cases: The Federal Employé Act; McAdow v. Railway Co. (Mo. App.) 164 S. W. 192. Requiring engineers and conductors to stop their trains at railroad crossings. Railway Co. v. Jacobs, 92 Ala. 187, 9 South. 320, 12 L. R. A. 830. With reference to standing on the platforms of railroad cars. Railway Co. v. Lohe, 68 Ohio St. 101, 67 N. E. 161, 67 L. R. A. 637. With reference to the right of eminent domain. Clinton v. Railway Co., 37 Iowa, 61. With reference to fencing right of way. Riggs v. Railway Co., 120 Mo. App. 335, 96 S. W. 707. With reference to requiring a city franchise. Diebold v. Railway Co., 117 Ky. 146, 77 S. W. 674, 63 L. R. A. 637, 111 Am. St. Rep. 230, 4 Ann. Cas. 445. With reference to crossing tracks of other railroads. Railway Co. v. St. Ry. Co., 96 Ky. 355, 26 S. W. 181.

“There has been a general concurrence in embracing all railroads in two classes: (1) Commercial railroads; and (2) street railroads. Commercial railroads embrace all railroads for general freight and passenger traffic between one town and another, or between one place and another. * * * Street railroads embrace all such as are constructed and operated in the public streets for the purpose of carrying passengers with their ordinary hand baggage from one point to another -on a street.” Bewis on Eminent Dpmain, vol. 1, § 110a.

We speak of steam railroads, commercial railroads, standard gauge, narrow gauge, electric railroads, and elevated railroads, but “railroad” is a generic term, and embraces railroads of all characters, unless the context indicates that it is used in a limited sense. The character of the motive power used is not a determinative factor. Philadelphia v. Traction Co., 206 Pa. 35, 55 Atl. 762; Bank v. Railway Co., 13 Allen (Mass.) 105; Railway Co. v. St. Ry. Co.; and Clinton v. Railway Co., supra.

Appellant has called our attention to the fact that, though our present statute in reference to condemning right of way for railroads was passed in 1876, the Legislature in 1901 passed an act authorizing the condemnation of right of way by the North Texas Traction Company from Ft. Worth to Dallas, and in the emergency clause declared that there was no existing law authorizing interurban railways to condemn right of ways (Acts 1901, p. 120), and also that the Legislature in 1907 (Acts 30th Leg. c. 15) passed an act conferring the right of eminent domain on electric interurban railway corporations. As to the first act above referred to, it was true that the North Texas Traction Company had no authority to condemn right of way through Tarrant and Dallas counties, for the reason that it had no authority to build a railroad outside of the corporation of Ft. Worth. The latter act conferred upon electric interurban railway companies rights not theretofore given to any railroad company. The right of eminent domain might have been included in the act out of abundance of caution, in view of the strict construction given to statutes in references to eminent domain. The act was passed to encourage the building of suburban roads, and it is well known that capital is very cautious, and it was perhaps thought advisable to remove all doubt.

Our attention has also been called to the fact that section-1 of the act (Acts 30th Leg., 1st called Sess., c. 18) under consideration used the word “railroads,” and in section 10 mention is made of interurban railroads. These sections relate. to different matters; the first to the taxation of express companies, the second to the taxation, not of railroads in general, but of a particular kind of railroads, which it was necessary to describe in order to differentiate them from other railroads not intended to be included. If we had a statute in one section levying an occupation tax on all persons selling cigars in hotels, and in another section upon hotels using elevators, it could not be inferred that the Legislature did not intend to include, in the section referring to cigar dealers, hotels using elevators, especially so if hotels not using elevators were taxed under another law, as is the case as to all railroads not mentioned in section 10. The meaning of a word used in a statute often depends upon the purpose for which it was passed. Here the declared purpose is to levy an occupation tax. The policy of our law is to equalize the burdens of taxation. The statute explicitly declares that all express companies doing business by railroads are to be taxed in proportion to the business done. The business done on interurban railroads is of the same character as that done on other railroads. If it is less in value, the tax is proportionally less in amount. Such business is rapidly increasing, as appears from the record in this case, if appellant is not taxed under this act, it escapes taxation altogether. Such ought not to be presumed to have been the intention of the Legislature, in the absence of language indicating such purpose.

Believing that upon both reason and authority article 7369 includes express business done upon interurban railroads, we affirm the judgment of the trial court herein.

Affirmed.


text:
    GULF, C. & S. F. RY. CO. v. BATTLE.
    (No. 5382.)
    (Court of Civil Appeals of Texas. Austin.
    June 17, 1914.
    Rehearing Denied Oct. 21, 1914.)
    1. Carriers (§ 318) — Carriage of Passen•gers — Actions—Evidence.
    In an action by a passenger, hurt in a fall from a train, caused by stumbling over a box left on the platform, evidence held, to sustain a finding that servants of the railroad company were negligent in placing the box on the dimly lighted platform.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1270, 1307-1314; Dec. Dig. § 318.]
    2. Evidence (§ 587) — Circumstantial Evidence — Admissibility.
    Hatters may be proven by circumstantial evidence as well as by direct testimony.
    [Ed. Note. — For other cases, see Evidence, Cent. Dig. § 2436; Dec. Dig. § 587.]
    3. Carriers (§ 320) — Injuries to Passengers — Actions—Evidence.
    In a personal injury action by a passenger, who fell from a train when he stumbled over a box on a dimly lighted platform, the question of his contributory negligence held, under the evidence, for the jury.
    [Ed. Note. — For other cases, see Carriers, Cent. Dig. §§ 1118, 1126,1149, 1153,1160, 1167, 1179, 1190, 1217, 1233, 1244, 1248, 1315-1325; Dec. Dig. § 320.]
    4. Appeal and Error (§ 263) — Presentation op Grounds of Review in Court Below — Objections to Instructions.
    Rev. St. 1911, art. 1974, as amended by Acts 33d Leg. c. 59, provides that, when the instructions asked or some of them are refused, the judge shall note distinctly which of them is given and which refused, and such instructions shall constitute part of the record. Article 2061, as amended, provides that the ruling of the court in giving, refusing, or qualifying instructions shall be regarded- as approved, unless excepted to. Held, that notwithstanding article 2062, providing that no bill of exceptions shall be necessary to reserve an exception where the ruling appears of record, was not amended, it was impliedly repealed in its application to instructions, and, unless exception was duly taken to the action of the court, the giving or refusing of instructions cannot be reviewed.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1516-1523, 1525-1532; Dec. big. § 263.]
    5. Witnesses (§ 392) — Impeachment—Evidence.
    Declarations not made with plaintiff’s knowledge, authority, or acquiescence, in suits against other persons, are not admissible to impeach plaintiff’s testimony in the subsequent action.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1249-1251, 1257; Dec. Dig. § 392.]
    Appeal from District Court, Lampasas County; John D. Robinson, Judge.
    Action by W. W. Battle against the Gulf, Colorado & Santa Fé Railway Company. Prom a judgment for plaintiff, defendant appeals.
    Affirmed.
    Terry, Cavin & Mills, of Galveston, Word & Walker, of Lampasas, and Lee & Lomax, of Ft. Worth, for appellant. Alex F: Weisberg and Thompson, Knight, Baker & Harris, all of Dallas, for appellee.

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

   JENKINS, J.

1. This is a suit to recover damages for personal injuries occasioned by the alleged negligence of appellant in leaving a vestibule door open, in having the platform dimly lighted, and in leaving a step box on the platform, over which appellee stumbled and fell out of the car, and his foot was run over by the cars.

2. Prom a judgment in favor of appellee, appellant appeals and assigns error, among others, that the verdict is not supported by the evidence.

Appellant’s train runs into Lampasas, where the accident occurred, and backs out and turns on a Y and goes onto the main line. Appellee alleged that he boarded the train at the front end of the smoking car about dark and just before the train started, and that the step box was thrown upon the platform and lighted behind him, in front of the door as he entered the same; that he was smoking and intended to remain in the smoker until he finished his cigar, but, finding the atmosphere foul, concluded to go on into the chair car, but that it was his custom to chew gum after smoking, and that he went to the front of the ear and bought a package of chewing gum from the “train butcher”; that he opened the car door for the purpose of throwing his cigar away, but that just at that time a passenger was coming up the steps; that at this time he held the doorknob in one hand and his cigar in the other, with one foot on the platform and one in the car, not intending to go further out, but, in order to avoid hitting the passenger with his cigar and to let him pass in the car, he held onto his cigar and stepped onto the platform; that he immediately turned to throw his cigar out and re-enter tide ear, when he stumbled over tlie step box and fell down the steps, and the ears ran over his foot. Appellee alleged that the platform was dimly lighted, and that he did not see the box over which he stumbled. The verdict in appellee’s favor implies that these allegations are true; that such acts constituted negligence on the part of appellant and were the proximate cause of the injury. The evidence is sufficient to sustain the verdict.

3. Appellant contends that leaving the vestibule door open was not negligence, for the reason that the same was necessary for the proper operation of the train at that time and place. The evidence shows that, by reason of the conductor’s and brakeman’s being compelled to remain out of the cars to throw the switches on the Y and board the train while it was moving, it was necessary to have one of the vestibule doors open, hut this does not excuse appellant’s leaving the box upon the platform in such position that a passenger was liable to stumble over it, nor in having the vestibule dimly lighted, so that the box might not be seen. It was the combination of all these circumstances that caused the injury. Had the box not been upon the platform, appellee would not have stumbled over it; had the vestibule been well lighted, he might have seen the box and avoided it; and had the door been closed, even had he stumbled and fallen, he could not have fallen out.

4. Appellant insists that the evidence is not sufficient to show that appellee stumbled over the box. It is true that appellee did not see what he stumbled over, but he struck his shin against some hard substance about the proper height for the top of the box. The undisputed facts show that the box was placed upon the platform a few minutes before the accident; that it was there a few minutes afterwards; and that no other substance over which any one could have stumbled was found upon the platform after the accident. A fact may be proven as well by circumstantial as by positive evidence, and, when a reasonable deduction has been drawn by a jury in a civil case from the facts proven, such deduction must be taken as a fact found, though some other hypothesis may be reasonable. In such case the jury are the exclusive judges of the fact proven by the circumstances in evidence. In the instant case, no conclusion, other than that the appellee stumbled over the box, can be drawn, if the appellee is to be believed, and of that the jury were the exclusive judges.

5. Appellant insists that it was negligence on the part of the appellee to go upon the platform, inasmuch as he knew the door was open and knew that the box was there. It is true that appellee knew that the door was open, but that circumstance of itself would not suggest that there was danger in going upon the platrorm of a slow moving train. The train was moving at the rate of from three to five miles an hour, over a smooth track. The appellee did not know that the box was in the passageway on the platform, in the sense of requiring him to act upon such knowledge. That is to say, such fact was not in his mind at the time, and he was excusable for not remembering it. When he heard the box strike the floor of the platform, he was entering the ear with no intention of returning, and naturally the incident passed out of his mind until he stumbled over the box. 1-Ie had not intended to go upon the platform at the time of the accident; the occasion of his doing so was an act of courtesy arising upon the instant, and natural to a gentleman. Under these circumstances, it is not reasonable to require of him that he should remember the incident of the box being thrown upon the platform. For these reasons, we cannot say, as a matter of law, that the jury were not justified in finding against appellant’s plea of contributory negligence. We think they were fully justified in such finding. Bonner v. Glenn, 79 Tex. 531, 15 S. W. 572; Sickles v. Railway Co., 13 Tex. Civ. App. 434, 35 S. W. 493 ; Railway Co. v. Patillo, 45 Tex. Civ. App. 572, 101 S. W. 498; Johnson v. Railway Co., 94 Miss. 447, 47 South. 785, 22 L. R. A. (N. S.) 312; Railway Co. v. Leftwich, 117 Fed. 127, 54 C. C. A. 1, 29 Cyc. 417; Railway Co. v. Adams, 116 Fed. 324, 54 C. C. A. 196.

6. Appellant assigns error upon the refusal of the court to give several special charges requested by it. Appellee objects to the consideration of these assignments for the reason that no exception was taken to the action of the court in refusing them. We sustain these objections.

Article 1974, R. S., reads as follows:

“When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he gives and which he refuses, and shall subscribe hjs name thereto; and such instructions shall be filed with the clerk, and shall constitute a part of the record of the cause, subject to revision for error, without the necessity of taking a bill of exception thereto.”

This, was amended by the Thirty-Third Legislature so as to read as follows:

“Art. 1974. When the instructions asked, or some of them, are refused, the judge shall note distinctly which of them he has given and which he refused, and shall subscribe his name thereto, and such instructions shall be filed with the clerk and shall constitute a part of the record of the cause, subject to revision for error.” Acts 33d Leg. p. 114.

It will be observed that the words “without the necessity of taking a bill of exceptions thereto” are omitted from the article as amended.

Article 2061, R. S., reads as follows:

“The ruling of the court in the giving, refusing or qualifying of instructions to the jury shall be regarded as excepted to in all cases.”

This article was amended by. the act above referred to so as to read as follows:

“Art. 2061. The ruling of the court in the giving,.refusing or qualifying of instructions to the jury shall be regarded as approved unless excepted to as provided for in the foregoing articles.”

This article is mandatory and precludes the consideration of any assignment of error as to the action of the court in giving, refusing, or qualifying requested charges, unless such action be excepted to and presented by bill of exceptions. Insurance Co. v. Rhoderick, 161 S. W. 1069.

It is true that article 2062, R. S., is not expressly repealed by the act above referred to, but said act repeals all laws in conflict therewith, and if any conflict exists between article 2062 and article 2061, as amended, the former is repealed. The Legislature that passed the original articles evidently did not intend article 2062 to apply to the giving or refusing special charges; if so, there would have been no necessity for article 2061.

7. We overrule appellant’s assignments of error as to the action of the court in refusing to allow appellant to introduce testimony in reference to the suits against the accident insurance companies. The evidence offered was irrelevant and immaterial to any issue in this case, and would have been prejudicial to appellee. In so far as such evidence was offered for the purpose of impeaching appellee by declarations in his petition in his suit against the insurance company it was clearly shown that such declarations were not made by him nor with his knowledge, authority, acquiescence or ratification.

Finding no error of record, the judgment of the trial court is affirmed. Affirmed.


author: LEVY, J. WILLSON, C. J.

text:
    TEXAS & P. RY. CO. v. BEAIRD.
    (No. 1317)
    (Court of Civil Appeals of Texas. Texarkana.
    June 24, 1914.

    Rehearing Denied Oct. 15, 1914.)
    1. Carriers (§ 261) — Redemption of Tickets — 1“When Presented.”
    Under Pen. Code 1911, art. 1527, requiring railroad companies to provide for the redemption of tickets which the holder has not used, article 1528, requiring presentation of the ticket for redemption within 10 days after the right to use it has expired, and article 1529, providing that any railroad company, refusing to redeem any ticket when presented, shall'be subject to penalty, the railway company may provide its own processes of disbursement; and where a company required tickets for redemption to be forwarded to the auditor of the company, who would send a cash slip to the ticket agent whereupon the money would bo paid to the holder of the ticket, the refusal of an agent to immediately pay the redeemable value of a ticket upon presentation did not subject the company to the prescribed penalty, the words “when presented,” being equivalent to “in case it is presented,” or “on condition that it be presented.”
    tEd. Note. — For other cases, see Carriers, Cent. Dig. § 1034; Dec. Dig. § 261.]
    2. Appeal and Error (§ 501) — Reservation of Grounds of Review.
    Assignments of error complaining of the charge cannot be considered, where no bill of exception was preserved.
    [Ed. Note. — For other eases, see Appeal and Error, Cent. Dig. §§ 2300-2305 ; Dec. Dig. § 501.]
    Willson, C. J., dissenting.
    Appeal from Smith Oounty Court; J. F. Odem, Judge.
    Action by J. W. Beaird against the Texas & Pacific Railway Company. From a judgment for plaintiff, defendant appeals.
    Reversed and remanded.
    The appellee had purchased from the appellant’s agent a ticket entitling him to passage from Grand Saline to Mineóla, paying therefor the sum of 40 cents. The ticket became misplaced in some way about the person of appellee, and he paid the conductor of the passenger train the cash fare and took a receipt therefor. Upon the arrival of the train at Mineóla, appellee found the ticket and at once presented it, together with the cash fare receipt of the conductor, to the ^appellant’s ticket agent at Mineóla for redemption. In respect thereto appellee testifies:
    “He told me he could not do it, he had no authority to redeem the ticket, but said that any agent at any station could redeem it. He would not redeem the ticket," and I purchased a ticket to Tyler and got on the- train and came to Tyler.”
    Claiming that the railway company failed and refused to redeem the ticket when presented, appellee brought the suit to recover $500 as a statutory penalty, the penalty being based upon articles 1527-1529 as contained in the Penal Code of 1911. The agent of appellant testified as follows:
    “I remember Mr. Beaird coming into the office on the arrival of the passenger train and. requesting me to redeem a ticket he had purchased from Grand Saline to Mineóla, and I told him that I had no authority to give him the cash on the ticket, but that I would redeem it by giving him a receipt for the ticket and sending it to the general auditor at Dallas, Tex., and he would send me a cash slip and I could then give him the money. I told him that it not being a ticket sold by the Mineóla office, I could not redeem it. * * * I told him I had to go according to the instructions given me by the superior officers of the railroad. He stated that he was going to Tyler and that he did not want my receipt. I then told him that he could turn the ticket in at either the I. & G. N. or Cotton Belt office in Tyler, and that they would give him a receipt for it and have it redeemed as I had proposed. He refused to let me redeem it in the manner that I told him.”
    The court gave the following special charge at the request of the plaintiff, which is here assigned as error:
    “You are charged that if the agent of the defendant railway at Mineóla, at the time plaintiff presented the ticket in question, failed to then and there redeem said ticket, plaintiff would be entitled to recover, notwithstanding said agent offered plaintiff 'to forward said ticket to the auditor’s office at Dallas, Tex., for redemption.”
    Young & Stinchcomb, of Longview, and R. S. Shapard, of Dallas, for appellant. E. P. Price, of Tyler, for appellee.

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

   LEVY, J.

(after stating the facts as above). [1] The legal effect of the instruction complained of is to declare that it is a violation of the statute requiring railway companies to redeem unused tickets where a ticket agent of the selling company does not return the amount of the fare to the holder of such unused ticket immediately on his presentation of the ticket for redemption. As to whether there was error in giving the charge must he considered from the viewpoint of there being testimony going to show that the appellant had provided the channel or process of redemption of unused tickets to be by the local ticket agent forwarding the unused ticket to the auditor of the company, who would send a cash slip to the ticket agent, and the money would then be paid by the local agent to the holder. -Article 1527 of the Penal Code of 1911 imposes the duty upon all railroad companies in this state “to provide for the redemption” from the holder of the whole or any part of an unused ticket that may have been sold by the company or its authorized agent. Article 1528 makes it the duty of the holder of such unused ticket, as a condition precedent to any right to redeem, to present such ticket or parts-unused for the purpose of redemption to the company selling, or to any of its authorized agents, within a time not exceeding ten.days after the right to use said ticket has expired. And article 1529 provides:

“Any railroad company or receiver or trustee of such railroad company over or on which said ticket may be used, which shall refuse or fail to red'eem the whole or any part or coupon of any ticket or tickets, when presented, shall forfeit to the holder thereof a sum not less than one hundred dollars nor more than five hundred dollars, recoverable in any court of competent jurisdiction.”

It is not doubted that by the terms of articles 1527 and 1528 there is created the obligation on the part of the railway company to make a refund of the purchase money of such of its unused tickets as are actually presented to it by the holders for redemption before a period of ten days after the right to úse such tickets has expired. But neither of the two articles mentioned provides the particular channel or processes of disbursement that the company shall employ. By article 1527 the railway company is only required “to provide for the redenrption” to the holder of such unused ticket that may be presented. The language would seem to express the intention to leave to the railway company the right to provide a channel or employ processes of disbursement most orderly to it. And the language of article 1529 is consistent with the intention expressed in article 1527, and not a limitation upon the authority conferred upon the company to adopt a particular channel or employ a particular reasonable process for the purposes of redemption to the holders of such unused tickets most orderly to it. The clause “when presented,” as used in article 1529, reasonably introduces into the meaning of the sentence the idea of the fact of presentation rather than the time of presentation of the unused ticket. Hence the clause “when presented,” being a conditional adverbial clause modifying the verbal phrase “refuses or fails to redeem,” is equivalent to “in case it is presented,” or “on condition that it be presented.” In this construction the right of the holder of an unused ticket presenting it to a local agent for the purpose of having a refund of the fare made to him by the company would be to have return of the fare made with reasonable dispatch through the usual processes of disbursement employed by the particular company. The holder of the ticket would not be entitled to have return of the fare made by the local agent “then and there” on presentation of the ticket, regardless of the processes for disbursement employed by the particular company for the especial purposes of redemption. And the railway company having, by the terms of the act, the right to redeem an unused ticket through the processes of disbursement employed by the particular company to accomplish the purposes of the law, such company would not be acting in violation of the statute, subjecting it to the damages specified, in offering or undertaking to redeem an unused ticket actually presented to it for redemption by the holder within the ten days required, through the usual processes of disbursement employed by the particular company Hence we conclude that giving the special charge constitutes, in view of the agent’s testimony, reversible error.

Under the third assignment several propositions are made and argued. As there was no bill of exception preserved to the charge, as required by the latest law, we are without authority to consider the assignment and the propositions thereunder. Railway Co. v. Wadsack, 166 S. W. 42; Railway Co. v. Galloway, 165 S. W. 546. We are not unmindful of the decision in Railway Co. v. Mahaffey, 98 Tex. 392, 84 S. W. 646; but we assume, without any express ruling, that the Legislature properly re-enacted the statute in 1911.

We suggest that the ruling here necessitates the ruling that the first and second assignments present error and in view of another trial can be remedied.

The judgment is reversed and the cause remanded.

WILLSON, C. J.

(dissenting). I think the statute, and therefore dissent from the conclusion reached by the other members of this court. The statute plainly makes it the duty of a railroad company in this state to provide for the redemption of a ticket sold by it and unused by the purchaser, if such ticket is presented for redemption to one of its ticket agents “within a time not exceeding ten days after the right to use” same “has expired by limitation of time as stipulated therein.” Article 1528, Bevised Criminal Statutes (Pen. Code). It as plainly denounces a penalty against such company if it “shall refuse or fail” to redeem such ticket “when presented” to it for the purpose. Article 1529, Bevised Criminal-Statutes. To my mind the words “when presented,” used in article 1529, mean that the ticket must be redeemed at the time it is presented to the company for the purpose, and the requirement of article 1528 that the company shall provide for the redemption of the ticket, means that the company shall provide for its redemption at that time, and not at some other time chosen by it. Rohrig v. Railway Co., 130 Iowa, 380, 106 N. W. 935.


author: KEY, C. J.

text:
    FT. WORTH & R. G. RY. CO. v. MATHEWS et al.
    (No. 5381.)
    (Court of Civil Appeals of Texas. Austin.
    June 10, 1914.
    Rehearing Denied Oct. 21, 1914.)
    1. COURTS (§ 169) — County Court — Jurisdiction — Amount Involved — Interest.
    Where a shipment of cattle was, through defendants’ negligence, damaged to the amount of $970, the shipper immediately upon the injury became entitled to 6 per cent, interest on that amount, as compensation for withholding the money to which he was entitled. Hence, after the lapse of more than a year, the shipper’s cause of action was for a sum in excess of $1,000, and the county court was without jurisdiction.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dec. Dig. § 169.]
    2. Courts (§ 169) — Texas—County Court-Jurisdiction.
    Where plaintiffs’ cause of action was in excess of $1,000, the county court is without jurisdiction, even though plaintiffs prayed.judgment for a sum slightly less than $1,000.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 413-425, 428-436, 443, 456, 458, 465; Dee. Dig. § 169.]
    3. Appeal and Error (§ 1166) — Dismissal —Grounds—Want op Jurisdiction.
    Upon appeal from a judgment of the county court which was without jurisdiction, the appeal will not be dismissed, but the cause will be reversed and remanded to enable that tribunal to dismiss the action.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 4527-4530, Dec. Dig. § 1166.]
    Appeal from Coleman County Court; E. M. Bowen, Judge.
    Action by Will Mathews and others against the Ft. Worth & Rio Grande Railroad Company and another. . From a judgment for plaintiffs, defendant named appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, of Houston, and Snodgrass & Dibrell, of Coleman, and Lockett & Rowe, of Et. Worth, for appellant. Woodward & Baker, of Coleman, for appellees.

       For other cases see same topic and section NLMBI2R in Dee. Dig. & Am. Dig. Key-No. Series & Bep’r Indexes

   KEY, C. J.

We copy from appellant’s brief the following substantially correct statement of the nature and result of this suit:

“This is an action instituted by appellees against appellant, Ft. Worth & Rio Grande Railway Company, and Gulf, Colorado & Santa Eé Railway Company, for alleged damages by bad handling en route, to a shipment of cattle moving from Coleman, Tex., on the line of the Gulf Colorado & Santa Eé Railway Company, to Brady; Tex., on the line of appellant railway company Appellees filed their original petition in this cause on February 9, 1910, and alleged therein various acts of negligence against this appellant and its codefendant, alleged by them to have occurred on March 18, 1909, and they further aver that, by reason of the acts of negligence set out by them, they were damaged in the aggregate sum of $980, for which amount they pray for judgment, as well as for costs of suit. On April 2, 1913, appellees filed their first amended original petition, alleging substantially the same acts of
negligence as were set out in their original pe; tition. They further allege that the various acts of negligence charged against appellant occurred on March 18, 1909, and that they suffered damages by reason thereof in the aggregate sum of $977. They conclude said pleading with the prayer that they have judgment for ‘the said sum of $977 as damages, without interest, judgment for costs and for general and special relief.’ A trial of said cause resulted in a verdict and judgment in favor of defendant Gulf, Colorado & Santa Fé Railway Company and against appellant for $950, with interest from September 16, 1913, at 6 per cent, per annum and costs of suit. A motion for new trial was duly presented by appellant Ft. Worth & Rio Grande Railway Company, in the court below, and same was by the court overruled. Thereupon appellant perfected its appeal to this court.”

The first three assignments of error deal with the question of the jurisdiction of the trial court over the subject-matter, the contention being that as the jurisdiction of the county court is limited to $1,000, exclusive of interest, the plaintiffs’ petition showed on its face that the court was without jurisdiction. In other words, counsel for appellant contend, and we sustain the contention, that the petition shows on its face that the subject-matter was of the value of more than $1,000. The plaintiffs sued for damages to a certain shipment of live stock and for $7 worth of hay. According to the petition the live stock was damaged in their market value in the sum of $970, which damage, it was alleged, occurred on the 18th day of March, 1909. The plaintiffs’ original petition was filed February 9, 1910. It is well settled by the decisions of our Supreme Oourt that if the plaintiffs had any cause of action they were not only entitled to recover for the injury done to their property, but were also entitled to recover 6 per cent, on the amount of such damages from the time that the injury was inflicted, not as interest eo nomini, but as compensation for withholding the sum of money they were entitled to recover as soon as the injury was inflicted; and at the time the suit was brought the 6 per cent, referred to brought the total amount of the plaintiffs’ cause of action up to a sum considerably in excess of $1,000; and, this being true, the county court was without jurisdiction to try the case. That identical point was decided by our Supreme Court in Schulz v. Tessman & Bro., 92 Tex. 488, 49 S. W. 1031, and we feel compelled to follow that decision. The plaintiffs’ cause of action being in excess of $1,000, it is immaterial that they prayed for judgment for only $997. Pecos & N. T. Ry. Co. v. Canyon Coal Co., 102 Tex. 478, 119 S. W. 294.

With perhaps a few exceptions, it has been the general practice of this court, when it ascertained that the trial court had no jurisdiction of the subject-matter, to dismiss the appeal, for the reason that the jurisdiction of this court is limited to cases of which trial courts have jurisdiction. However, in Pecos & N. T. Ry. Co. v. Canyon Coal Co., supra, the Supreme Court seems to disapprove that practice, and, in deference to the views of that court, the judgment of the trial court in this case will be reversed and the case remanded with instructions to that court to dismiss the case.

Reversed and remanded.