author: RASBURY, J.

text:
    DAVIS et al. v. HOLLAND et al.
    (No. 7154.)
    (Court of Civil Appeals of Texas. Dallas.
    May 30, 1914.
    Rehearing Denied June 27, 1914.)
    1. Municipal Corporations (§ 590) — Police Power and Regulations — Regulation op Plumbing Trade.
    Rev. St. 1911, arts. 986-998, requiring all cities “organized under the general laws * * * or by special act,” having underground sewers, to regulate house draining and plumbing, and create an examining and supervising board of plumbers, etc., were intended to and do apply to the city of Dallas, though organized under special charter, as it has underground sewers, and the plain import of the words quoted, as well as the fact that they were inserted by amendment soon after a decision that the law was not applicable to such a city, forbids any other conclusion, and further Dallas Charter, art. 2, § 2, declares in accordance with the common law that the city shall have all powers of municipal government not prohibited by the charter “or by some general law,” etc.
    [Ed. Note. — For .other cases, see Municipal Corporations, Cent. Dig. § 1309; Dec. Dig. § 590.]
    2. Municipal Corporations (§ 592) — Police Power and Regulations — Regulation op House Draining and Plumbing.
    The City of Dallas is not exempted from the general laws regarding house draining and plumbing (Rev. St. 1911, arts. 986-998), because Dallas Charter, art. 14, § 29, gives the city the exclusive right to control such matters, as such provision in effect confers upon the city the right to suspend the state laws, which authority cannot be conferred.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1311-1314; Dec. Dig. § 592.]
    3. Constitutional Law (§ 205) — Privileges or Immunities, and Class Legislation-In General.
    In order to meet the requirements of Const. art. 1, § 3, providing that “all freemen, when they form a social compact, have equal rights, and no man or set of men is entitled to exclusive separate public emoluments or privileges, but in consideration of public service,” all laws  affecting a particular class of business or voeation must affect all of the specified class uniformly and alike.
    [Ed. Note. — -For other cases, see Constitutional Law, Cent. Dig. §§ 591-624; Dec. Dig. § 205.]
    4. Constitutional Law (§ 205) — Health (§ 21) — Regulation or House Draining and Plumbing — Privilege's or Immuni-
    The general laws regarding house draining and plumbing (Rev. St. 1911, arts. 986-998) violate Const, art. 1, § 3, declaring that no man or set of men is entitled to exclusive privileges, because article 997, providing that no license shall be issued to carry on or work at the plumbing business except to one who has passed the examination, and article 998, providing that every firm carrying on the plumbing business shall have at least one member who is a practical plumber, permit a firm of plumbers to practice their trade if only one member has passed the examination, though another has failed, while all plumbers who are not members of such a firm are required to pass the examination.
    [Ed. Note. — For other cases, see Constitutional Law, Cent. Dig. §§ 591-624; Dee. Dig. § 205;* Health, Cent. Dig. § 25; Dec. Dig. § 21.]
    Appeal from District Court, Dallas County; Kenneth Foree, Judge.
    Suit by E. S. Davis and others against W. M. Holland and others to require defendants, as Mayor and Commissioners of the City of Dallas, to create an examining and supervising board of plumbers and pass ordinances regulating house draining and plumbing, and asking a writ of mandamus to enforce the judgment sought. From a judgment denying the relief sought, plaintiffs appeal.
    Affirmed.
    Morris & Pope, of Dallas, for appellants. C. F. O’Donnell and Marvin S. Church, both of Dallas, for appellees.

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

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

   RASBURY, J.

This suit was filed in the court below by appellants, some of them master and some of them journeymen plumbers, against the appellees, the mayor and commissioners of the city of Dallas, seeking a judgment against them in their official capacity requiring them to create an examining and supervising board of plumbers for said city and to pass ordinances regulating house draining and plumbing and the practice thereof as directed by the General Laws of the state and the enforcement of the judgment sought by writ of mandamus.. Appellants alleged, in substance, that there were at the time of the commencement of the suit general laws regulating house draining and plumbing and the practice thereof in cities of the class of Dallas superior to any right of the municipality in that behalf, and that they had requested and demanded of the officers of said city that the general laws be enacted into ordinances in order that appellants might comply therewith and be enabled to pursue and practice their trade or vocation lawfully and avoid the criminal penalty imposed by the general laws in such cases, which appellees refused to do. Appellees by special exceptions and pleas urged that it was optional with them whether they would adopt the state law for the city of Dallas; that the city of Dallas derived its governmental functions from a special charter granted by the Legislature,, which exempted it from said general laws; that the said general laws regulating plumbing and the practice thereof were unconstitutional because in conflict with the Bill of Rights of the Texas Constitution. There was a trial without jury, and the relief sought was denied by proper judgment entry, and from such judgment this appeal is taken.

The facts developed at trial are undisputed and are in substance as follows: The city of Dallas is an incorporated municipality conducting its varied affairs of government by authority of a special charter granted by act of the Legislature. Its affairs are conducted by a mayor and board of commissioners. Appellees are such officers. The city has more than 10,000 inhabitants and maintains a system of underground sewers. It also has a health officer, engineer, and an inspector of plumbing. The city has no examining and supervising board of plumbers. The appellants and the Association of Master Plumbers and the United Association of Journeymen Plumbers of said city requested and demanded of the appellees, the city’s governing board, that they appoint an examining and supervising board of plumbers, as provided by the general laws of the state, which appellees declined and refused to do.

There were in force at the time the instant case was tried and are now general laws requiring every city in the state, having underground sewers, whether incorporated under the general laws or by special grant from the Legislature, to pass ordinances regulating the tapping of sewers and house draining and plumbing. Article 986, R. S. 1911. Said general laws also provide that such cities shall create a board to be known as the examining and supervising board of plumbers, for the examination of plumbers who ply their trade or vocation in such cities, such board to be composed of a member of the local board of health, or, if there be no such board, the city physician or health officer, the city engineer, the city inspector of plumbing, and a master plumber and a journeyman plumber of five and ten .years’ active and continuous experience respectively. Articles 987 and 988, R. S. 1911. Only plumbers examined and licensed by such board, whether master, employing, or journeymen plumbers, may lawfully practice their trade or vocation in the cities to which the act applies. Articles 991 and 997, R. S. 1911. It is a misdemeanor to practice plumbing without such license. Article 131, Penal Code 1911. The act also provides that “every firm carrying on the business of plumbing shall have at least one member who is a practical plumber.” Article 998, R. S. 1911. There are other provisions which refer to the terms of service of the members of the board, the details of the procedure they shall follow in making examinations, and provisions with reference to licenses, etc., which are immaterial to the instant controversy. These general laws appellants urge apply to the city of Dallas and should have been complied with by appellees, and in default of such compliance mandamus should have issued compelling compliance, since, if appellants should engage in the practice of plumbing in the city of Dallas without first passing before the supervising board the examination required by law,' they would be in violation of the criminal laws and be subjected to arrest and punishment. Such conclusion seems correct in so far as it involves the proposition that the general laws cited were intended to and do apply to the city of Dallas. The laws were originally passed in 1897. As enacted, they provided that every city in the state having underground sewers, etc., should comply with the laws. After the enactment of the laws, it was held, in Robinson v. City of Galveston et al., 51 Tex. Civ. App. 292, 111 S. W. 1078, that the laws did not apply to the city of Galveston, which is governed like the city of Dallas by commissioners, for the reasons: First, that it did not have the officers named in the general laws which should constitute the membership of the examining and supervising board, which brought the ease within the rule in Caven v. Coleman, 100 Tex. 467, 101 S. W. 199; and, second, because “the city of Galveston is expressly authorized by its charter ‘to regulate and control plumbers and plumbing works, and to enforce efficiency,’ ” and there being no general law upon the subject the provisions of the Galveston charter in such particular would control. Subsequent to the holding in the case just cited, the Legislature amended the laws by making them applicable to all cities having underground sewers “whether organized under the general laws of the state or by special act of the Legislature.” Such amendment, in the light of the holding in Robinson v. Galveston, supra, and in view of the plain import of the words of the amendment, forbids any conclusion other than that it was intended to apply to all cities of the class named, whether operating under general laws or by authority of special grant from the Legislature. Further, in defining the general powers of the city of Dallas under the special charter granted by the Legislature, it is provided in effect that:

The city “shall have and exercise all powers of municipal government not prohibited to it by this charter or by some general law of the state •of Texas or by the provisions of the Constitution of the state of Texas.” Dallas Charter, art. 2, §2.

Such provision in the charter is but declaratory of the general rule under such special grants. 1 Dillon, § 319. By reason of such limitation it was held, in City of Houston v. Richter, 157 S. W. 189, that the very laws sought to be applied to the city of Dallas were applicable to Houston, although operating under special charter containing powers in conflict with said general laws. But appellees further urge that the city of Dallas is exempt from the general laws by the additional provision in the charter of the city of Dallas reciting that the authority contained in the charter shall supersede the law of the state. Dallas Charter, art. 14, § 29. The charter does grant the city of Dallas the exclusive right to control the matters covered by the general laws herein quoted. This provision in effect confers upon the city of Dallas the right to suspend the state laws, but that such authority cannot be conferred is no longer an open question in this state. Brown Candy & Cracker Co. v. City of Dallas, 104 Tex., 290, 137 S. W. 342.

It is further urged, however, by counsel for appellees, that, even though the general laws under discussion are applicable, they are nevertheless without force or validity, because unconstitutional as being in contravention of article 1, § 3, thereof, which provides that:

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

With such contention we agree. The rule is that all laws affecting a particular class of business or vocation in order to meet the requirements of the section of the Constitution cited must effect all of the specified class uniformly and alike. Campbell v. Cook, 86 Tex. 630, 26 S. W. 486, 40 Am. St. Rep. 878; Union Central Life Ins. Co. v. Chowning, 86 Tex. 654, 26 S. W. 982, 24 L. R. A. 504; St. Louis, S. F. & T. Ry. Co. v. Taylor, 134 S. W. 819. The two concluding articles of the act under discussion do not comply with that rule, since their effect is to permit a firm or partnership of plumbers to practice their trade in the event only one member thereof has successfully passed 'the examination before the board, while every plumber not a member of such a firm or partnership must in any event submit to the examination and be licensed by the board before he may do so. As said by .the Supreme Court of Ohio, in State v. Gardner, 58 Ohio St. 599, 51 N. E. 136, 41 L. R. A. 689, 65 Am. St. Rep. 785, in testing the constitutionality of a law in substance identical with the one under discussion:

“That is, a journeyman, for whomever he works, must have a license, and an employing plumber, if not a member of a firm or corporation, may not pursue the calling without a license. But a master or employing plumber if he be a member of a firm another member of which has procured a license, is exempt, although he may be one who has, as a journeyman, applied for a license and failed for incompetency.”

Thus, by acquiring membership in a firm, one who had failed to pass the examination required by law and which should be the test alike for all would be permitted to practice his trade in competition with one who liad passed the examination and by which method a privilege would accrue to one of the specified class not conferred upon all others in the same class. Other cases much in point have been cited by counsel for ap-pellees, but quotations therefrom would be profitless, since they but reiterate the general rule we have stated and apply it to the specific case as in State v. Gardner, supra, and nonce we rest the matter by citing the cases. Henry v. Campbell, 133 Ga. 882, 67 S. E. 390, 27 L. R. A. (N. S.) 283, 18 Ann. Cas. 178; State v. Benzenberg, 101 Wis. 172, 76 N. W. 345.

For the reasons indicated, the judgment is affirmed.


source: Caselaw Access Project

author: McMEANS, J.

license: Public Domain

text:
    PICKERING MFG. CO. v. GORDON.
    (No. 6515.)
    (Court of Civil Appeals of Texas. Galveston.
    May 5, 1914.)
    1. Limitation of Actions (§ 121) — Commencement of Actions — Stopping of Running of Limitations.
    Where a suit was brought against a defendant, described as a foreign corporation, with which plaintiff had made the contract sued on, and defendant filed an answer in the corporate name, and subsequently an individual appeared and answered, alleging that she did business in the corporate name and that there was in fact no corporation and that she was the party with whom plaintiff had contracted, the commencement of the action stopped the running of limitations against the cause of action relied on.
    [Ed. Note. — For other cases, see Limitation of Actions, Cent. Dig. §§ 537, 540; Dec. Dig. § 121.]
    2. Sales (§ 418) — Breach of Contract — Special Damages.
    Where a buyer of machinery for a manufacturing plant rented a building for the machinery and plant and employed employés in reliance on a prompt delivery of the machinery and demanded damages for rental and wages paid pending delivery, which was delayed by the seller, the damages demanded were special, and to recover the buyer must prove that it was reasonably within the contemplation of the parties at the time of the making of the order that the damages would likely result from the seller’s delay.
    [Ed. Note. — For other cases, see Sales, Cent. Dig. §§ 1174-1201; Dec. Dig. § 418.]
    Appeal from Jefferson County Court; R. W. Wilson, Judge.
    Action by W. D. Gordon against the Pickering Manufacturing Company. From a judgment for plaintiff, defendant appeals.
    Reversed and rendered for defendant.
    See, also, 166 S. W. 899.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellant. Thos. J. Baten and W. D. Gordon, both of Beaumont, for appellee.

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

   McMEANS, J.

On September 8, 1908, W. D. Gordon filed this suit against the Pickering Manufacturing Company, alleging that the defendant was a private corporation doing business in the state of Pennsylvania; that on or about the 10th, day of July, 1908, for the purpose of establishing a plant in Houston, Tex., for the manufacture of brushes, he placed an order with the defendant for prompt shipment to Houston of about $1,200 worth of machinery necessary to the equipment of a manufacturing plant; that the defendant accepted the order and undertook to fill the same expeditiously; that, relying upon the defendant’s prompt, expeditious filling of said order, the plaintiff rented a building in the city of Houston to accommodate said machinery, at a reasonable rental value of $100 per month; that upon defendant’s representation that the machinery would be promptly and expeditiously forwarded plaintiff incurred additional necessary expenses in salaries to employés for the management and operation of the plant of approximately $300 per month, and sundry incidental expenses of approximately $75 per month. He then alleged that defendant had breached the contract, and sought damages therefor in the sum of $292, which amount he alleged defendant had on deposit in the Gulf National Bank of Beaumont, which amount was seized by a writ of garnishment.

On January 4, 1909, the Pickering Manufacturing Company filed its answer, consisting of a general demurrer and general denial. Subsequently it filed its first amended original answer, but this answer is not brbught up with the record, and its allegations are not shown.

On January 16, 1913, more than five years after the filing of the original petition, plaintiff filed his first amended original petition, in which he alleged:

“That he instituted this suit against the Pickering Manufacturing Company, who by answers filed in the case is now shown to be an alias under which one E. A. Pickering, the sole and only party at interest, was doing business. That his original petition proceeded upon the supposition that the Pickering Manufacturing Company was a private corporation, and that, being so sued, said defendant, now known as Emaline A. Pickering, answered said suit in the capacity in which it was brought on the 4th day of January, 1909. That subsequently, on the 14th day of December, 1910, said Pickering Manufacturing Company (identical with Emaline A. Pickering) filed in her own proper person her original amended answer to this suit. That from the pleadings now on file, it appears that the Pickering Manufacturing Company is the alias name of Emaline A. Pickering, and that this name, as well as what she now affirms to be her correct name, are hereby retained for the purpose of proceeding against her in this suit.”

Plaintiff then proceeded to allege his cause of action as in the original petition, but with greater particularity alleged the damages suffered by him by reason of defendant’s breach, as follows:

“He rented a building to accommodate said machinery and plant at the reasonable rental price of $100 per month. That, relying upon the defendant’s prompt and reasonable execution of said contract of shipping said machinery, plaintiff employed the following necessary employés for the management and operation of said plant, viz., a manager at the price of $150 per month, and two brush manufacturing employés at the price of $75 per month each, which were necessary expenses in the premises and which the defendant well knew. That plaintiff had to incur additional expenses, such as to make electric power connections, and other incidental expenses such as telephone, electric lights, etc., aggregating about $75 per month, all of which expenses were in contemplation of the parties, plaintiff and defendant, at the time of placing and acceptance of said order and ever since then.”

The amended petition concludes thus:

“And because the defendant is now personally before the court, the plaintiff asks judgment against defendant under each and all of her aliases in the full sum of $995, with all costs of suit, and he prays for general relief.”

After the filing of this amendment, and upon the same day, the defendant Emaline A. Pickering, describing herself as “doing business under the name of Pickering Mfg. Co.,” obtained leave of the court to file, and did file, her second amended original answer in lieu of her first amended answer filed December 4, 1910, containing a general demurrer, special exceptions to and general denial of the allegations of plaintiff’s amended petition, and a plea of the two and four years’ statute of limitations. A trial before a jury resulted in a verdict and judgment for plaintiff for $750, and defendant has appealed.

By her first assignment of error appellant complains of the action of the court in overruling her special exception to plaintiff’s amended petition, which in effect was that the petition shows that plaintiff’s cause of action arose between July 10 and October 1, 1908, and the defendant was not sought to be held liable until the filing of the amended petition on January 16, 1913, and that his cause of action was barred by the two and four years’ statute of limitations.

By her second assignment she complains that the court erred in not instructing a verdict in her favor for the reason that the undisputed evidence shows that plaintiff’s cause of action is barred by the two and four years’ statute of limitations.

The assignments cannot be sustained. According to the allegations of plaintiff’s original and amended petitions, his cause of action,arose prior to September 8, 1908, the time the suit- was filed. His amended petition was filed more than five years afterward. In the meantime, however, on January 4, 1909, the Pickering Manufacturing Company, which is .the name under which appellant was doing business, filed an answer in the case, and later an amended answer was filed. This amendment was not brought up with the record, and we are not apprised, by an inspection of it, what allegations it contained or defenses were asserted by it; but in the court’s general charge we find a reference to it in the following language:

“It appears that the Pickering Manufacturing Company, the defendant, answered unto that name' as sued, by general denial and plea of net guilty, on the 4th day of January, 1909, and on the 14th day of December,' 1910, Mrs. uimaline A. Pickering appeared and filed ' an' answer in which she alleged that the Pickering Manufacturing Company was a name under which she did business and that she was the only party at interest.”

We assume that the court had the answer before it when the charge was prepared, and that the statement contained in the charge is true. No complaint is made by appellant attacking its correctness. It is shown that there was no such corporation as the Pickering Manufacturing Company, but that Ema-line A. Pickering was doing business under that name. There is no question that it was the individual doing business by that name, and not a corporation of that name, that received and accepted plaintiff’s order and agreed to fill it. In other words, the contract made by plaintiff was with Mrs. Pickering and not with a corporation. When the original, answer was filed, no attempt was made to correct the misnomer. The firm of attorneys which filed the original answer in behalf of the Pickering Manufacturing Company is the same firm that filed the first and second amended answers for Mrs. Pickering. The filing of the original answer in the name of the Pickering Manufacturing Company, under which name Mrs. Pickering was doing business, was, under the circumstances stated, an answer to the merits by her. We cannot distinguish this case in its facts from Railway v. Graham, 12 Tex. Civ. App. 569, 34 S. W. 135, and upon the authority of that case and the cases therein cited we hold that under the circumstances stated the filing of the original petition stopped the running of limitations against plaintiff’s cause of action; and the assignments are overruled.

By the fifth assignment of error appellant complains of the refusal of the court to give her special charge instructing a verdict in her favor for the reason, as asserted in her proposition, that the cause of action asserted by plaintiff was in the nature of special damages caused by an alleged breach, on the part of appellant, of a contract to promptly and expeditiously ship to plaintiff certain machinery; and that in order to recover such damages it was necessary for appellee to prove that at the time of the contract of sale he gave defendant notice that he would sustain such special damages in case of its breach and to show that the contract was made, at least in part, with reference to such special conditions.

The plaintiff testified that he sent two Germans, by the names of Adolph Nissel and George Zehetner, who were expert brush makers and familiar with the necessary machinery for the manufacture of brushes, North during the summer of 1908 to purchase the necessary machinery for the equipment of his plant; that about TO days after they left he received a letter from the Pickering (Manufacturing Company, bearing date of July 10, 1908. This letter states that the Pickering Manufacturing Company had been called upon by Nissel and Zehetner and had •been given two orders for machinery, one order of $850 for a boring lathe and the other ■order for sundry machinery and tools amounting to $325, which last order would be entitled to cash discount of 10 per cent, and requested the plaintiff to confirm the order. The plaintiff answered this letter on July 13, 1908, in which he confirmed the orders given by Nissel and Zehetner. In neither of these communications was anything said about the date of shipment nor as to ■any arrangements the plaintiff had made for the reception of the machinery or the installation of the plant. The plaintiff testified that both these Germans were in Europe, and he was therefore unable to secure their testimony ; that he expected the machinery to be shipped promptly, at least within reasonable time, and testified as to the renting of the building, the employment of a manager, and the employment of the two Germans as brush makers and the installation of electric power, lights, telephones, etc., substantially as alleged in his petition; that he commenced paying these expenses before the 1st of August and continued to pay them until October 15, 1908, when the plant was actually installed. He testified as to the time it would require machinery to be shipped from Philadelphia to Houston, and that he expected the machinery all the time from the latter part of July up to September 7th. There was no testimony introduced by the plaintiff tending to show that the defendant was given notice at the time the contract was made that such damages would follow in case of a breach.

Anton H. Nolde testified for the defendant and stated that he was manager of the Pickering Manufacturing Company and he represented the Pickering Manufacturing Company in taking orders from Nissel and Zehetner for the machinery for W. D. Gordon or the Houston Brush Manufacturing Company. He introduced in evidence the two orders, both dated July 10, 1908. Both orders contained simply a request on the part of Nissel and Zehetner to ship the machinery named and contained statements of the terms of payment. The witness Nolde further testified that there was no time of shipment mentioned ; that it was understood that the machinery was to be shipped as soon as possible; ’that these parties did not tell him when they intended to put the factory in operation or when the machinery would' be needed, and no time of shipment was mentioned or suggested ; that nothing was said about renting a building and that he knew nothing about what arrangements were made for their plant; that there was nothing said about employment of men pending the arrival of the machinery and that these questions were not discussed; that the first order was filled in' full, and the order for the boring lathe was canceled by W. D. Gordon on September 7, 1908. He testified that the machinery ordered was not in stock and had to be manufac- j tured, and that this fact was known to Nis-sel and Zehetner.

The damages claimed by appellee were special damages, and to entitle him to a recovery thereof it was incumbent upon him to prove facts from which it would appear that it was reasonably within the contemplation of the parties, at the time appellee made the order and defendant accepted it, that the damages sued for would likely result as a result of appellant’s default. Railway v. Belcher, 89 Tex. 428, 35 S. W. 6; Smelting Co. v. Compress Co., 72 Ark. 275, 79 S. W. 1052; Express Co. v. Darnell, 62 Tex. 639; Express Co. v. Thompson, 53 Tex. Civ. App. 515, 116 S. W. 607; Express Co. v. Jones, 52 Tex. Civ. App. 367, 113 S. W. 952.

In Railway v. Belcher, supra, the Supreme Court says:

“The rule seems to be settled that plaintiff, in order to recover special damages for breach of a contract, must show that at the date of the contract defendant had notice of the special conditions rendering such damages the natural and probable result of such breach, under circumstances showing that the contract was to some extent based upon or made with reference to such conditions.”

Appellee failed to introduce any evidence tending to show that, under the rule stated, the appellant was liable to him for the damages sued for, and therefore the court should have given the special charge requested by appellant, instructing a verdict in her favor. The judgment of the court below is reversed, and judgment here rendered for appellant.

Reversed and rendered.


author: FLY, C. J.

text:
    STERRETT et al. v. GIBSON.
    (No. 5324.)
    (Court of Civil Appeals of Texas. San Antonio.
    June 3, 1914.
    Rehearing Denied June 22, 1914.)
    1. Venue (§ 11) — Actions against Public Officers — Statute.
    Rev. St. 1911, art. 1830, subd. 20, excepting from the provision fixing the venue of actions as the county of defendant’s residence suits against the head of a department for mandamus, does not apply to a suit against such officer for damages and injunction.
    [Ed. Note. — For other cases, see Venue, Cent. Dig. § 20; Dec. Dig. § 11.]
    2. Mandamus (§ 142) — Actions against Public Officers — Statute—'“Head of Department.”
    The game, fish, and oyster commissioner is not the head of a department within the meaning of that section.
    [Ed. Note. — For other cases, see Mandamus, Cent. Dig. §§ 279-2S1; Dee. Dig. § 142.

    For other definitions, see Words and Phrases, vol. 4, p. 3225.]
    3. Courts (§ 472)— Jurisdiction — Supreme Court — Mandamus or Injunction.
    Rev. St. 1911, art. 5732, giving the Supreme Court exclusive jurisdiction to issue mandamus or injunction against any officers of the executive department pf the state to compel the performance of any act or duty which they are authorized to perform, does not deprive the district court of jurisdiction to restrain by injunction an executive officer from performing an act authorized by a state law which is claimed to be invalid.
    [Ed. Note. — For other cases, see Courts, Cent. Dig. §§ 442, 451, 459, 465, 619, 1199-1202, 1204-1224, 1247-1259; Dec. Dig. § 472.]
    4.Penalties (.§ 2) — Construction of Statute-Intent of Legislature.
    Penal Code 1911, art. 906, as amended by Acts 33d Leg. c. 135, which act amended Penal Code 1911, arts. 901 — 923, inclusive, and adding thereto articles 923a — 923k, which article provided a penalty for violation of any provision of the act, when construed with the other provisions of the act which imposed different penalties for violation of the other articles, and to effectuate the intent of the Legislature, imposes the penalty only upon the violation of that article, and not upon the other articles of the act.
    [Ed. Note. — For other cases, see Penalties, Cent. Dig. §§ 2, 11; Dec. Dig. § 2.]
    5.Fish (§ 8) — Power to Protect and Reg-úlate.
    Rev. St. 1911, art. 3980, declaring that all public waters within the jurisdiction of the state, and all products thereof, are the property of the state except so far as their use is permitted, is merely a declaration of the sovereign right of the state to protect the fish and game within its borders, and its power to regulate and control, or absolutely prohibit, the taking of fish.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. § 16; Dec. Dig. § 8.]
    6. Fish (§ 9) — Seizure of Nets — Constitutionality of Statutes.
    In the exercise of the power of the state to protect fish, it may not only prohibit the use of seines and nets, but to enforce such regulation may declare seines and nets to be a nuisance, and require their abatement, as was done by Penal Code 1911, art. 932c.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 17, 18; Dec. Dig. § 9.]
    7. Fish (§ 9) — Seizure of Nets — Constitutionality of Statutes.
    Penal Code 1911, art. 923k, declaring that all seines or nets found on or in waters where fishing was prohibited by such means are nuisances, and providing for their abatement, is a valid exercise of the power of the state to regulate the right of fishery.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. §§ 17, 18; Dec. Dig. § 9.]
    8. Fish (§ 11)— Regulation — Orders — Validity.
    It is no objection to an order of the fish commissioner closing a certain water against fishing with seines and nets that it does not name the time for which it is to be closed.
    [Ed. Note. — For other cases, see Fish, Cent. Dig. § 21; Dec. Dig. § 11.]
    9. Injunction (§ 75) — Adequacy of Legal Remedy — Destruction of Nets by Fish Commissioner.
    A fisherman whose nets and seines the fish ■commissioner is threatening to destroy has an adequate remedy at law for all damages which he may sustain by the unlawful destruction of his nets, and is not entitled to an injunction to restrain such destruction.
    [Ed. Note. — For other cases, see Injunction, Cent. Dig. §§ 143, 144, 150; Dee. Dig. § 75.]
    Appeal from District Court, Nueces County; W. B. Hopkins, Judge.
    Suit by C. W. Gibson against W. G. Ster-rett and others. From an order issuing a temporary injunction, defendants appeal.
    Reversed, and judgment rendered denying the injunction.
    Davidson & Bailey, of Cuero, for appellants. T. O. Woldert, of Corpus Christi, for appellee.

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

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

   FLY, C. J.

This is a suit instituted by appellee against W. G. Sterrett, Game, Fish, and Oyster Commissioner of the State of Texas, hereinafter styled Commissioner, and W. E. Everhart and Joe A. Williams, deputies of the Commissioner, for $10,000 damages and to restrain them from executing certain orders issued by the Commissioner in regard to fishing in the waters described therein. The court issued a temporary injunction restraining appellants from executing such orders, and this appeal has been perfected from that restraining order.

One of the orders declared certain described waters closed against fishing, and the other gave notice of rules to govern fishermen and is as follows:

“All American citizens desiring to fish for market with nets and seines in the open waters of the Gulf of Mexico and in the open waters of the Laguna Madre, are hereby notified that they will be permitted to carry seines or nets to the Gulf through Corpus Christi Bass under the following rules:
“1st. Such seines or nets shall only be carried through such pass on each Tuesday of the week between the hours of sunup and sundown.
“2nd. In going to such other waters of the Gulf through the pass, the seines or nets shall at once be carried or taken to a point at least a mile from such pass.
“3rd. Persons desiring to carry or take seines or nets through the closed waters where the Laguna Madre and Corpus Christi Bay meet will be permitted to carry and take such seines or nets through such closed waters on Wednesday of each week under the following rules:
“1st. Such seines or nets shall only be carried through such closed waters between the hours of sunrise and sunset.
“2nd. Such seines and nets shall not be left in or on such closed waters or on boats in such waters.
“Any seines or nets found within one mile of Corpus Christi Pass whether in the water, on land, or boats, will be at once destroyed, and persons either in possession of them or placing them within one mile of such pass,_ will be prosecuted and on conviction they will be deprived of their licenses to fish for market.
“All seines or nets found in the waters or on boats within the closed waters of Laguna Madre, will be at once destroyed and the persons either in possession of them or who, has placed them in such closed waters will be prosecuted, and on conviction, will be deprived of their licenses as recorded fishermen.
“Where boats are anchored in any of the closed waters mentioned, they are under the law prohibited from having seines or nets on their boats.”

The Commissioner filed a plea of privilege to be sued in Travis county and also pleaded that no court except the Supreme Court of Texas had jurisdiction to entertain such an action against him, for the reason that the Game, Fish, and Oyster Commissioner is a member of the executive department of the state of Texas. If it be conceded that the Commissioner is a head of a department as contemplated in exception 20 under article 1830, Rev. Stats, of 1911, still this suit is not one for mandamus, but for damages and injunction, and the statute wouid have no application. We do not think, however, that the Commissioner comes with1 in the purview of the statute.

The statute which gives the Supreme Court exclusive jurisdiction to issue the writ of mandamus or injunction, or any other mandatory or compulsory writ of process against any of the officers of the executive department of this state confines that jurisdiction to such named writs as are issued— “to order or compel the performance of any act or duty which, by the laws of this state, they, or either of them, are authorized to perform, whether such act or duty be judicial, ministerial or discretionary.” Rev. St. 1911, art. 5732.

The exclusive jurisdiction of the Supreme Court is confined to cases in which it is sought to compel an officer of the executive department to do or perform an act or acts enjoined upon him by the laws of the state, and the statute does not apply to cases in which the rights of person or property are invaded by such officer. In such cases swift, decisive action is demanded, and redress would be practically denied for trespasses and torts committed by members of the executive department. What act or duty is appellee seeking to order or compel the Commissioner to perform that is authorized by the laws of Texas? He is not seeking to compel him to perform any act or duty, but to restrain him from performing an act or duty enjoined upon him by the laws of the state, which appellee claims are invalid. The district court had jurisdiction of the cause.

The act of the Thirty-Third Legislature, Gen. Laws of 1913, p. 268, which amends articles 901 to 923, inclusive, of the Penal Code, and adds thereto articles 923a to 923k, inclusive, and repeals articles 868 and 869, is assailed by appellee as being incapable of enforcement, because it provides two different penalties for the same offense. As upholding this contention, it is claimed that as article 906 provides that:

“Any one violating any of the provisions of this act shall be deemed guilty of a misdemean- or and, upon conviction thereof, shall be fined in any sum not less than twenty-five nor more than two hundred dollars”

—and other articles in the act provide other and different penalties, the act is inconsistent, unintelligible, and wholly inoperative. The word, “act,” used in article 906, clearly refers to the article, and not to the whole law made up of different articles defining different offenses and providing different penalties. The construction sought to be placed upon the statute is violative of the rules of statutory construction. In construing it, every part of the statute must be viewed in connection with the whole so as to harmonize all the parts, and that construction must be given that will sustain and not destroy the law. Another rule is that statutes must be construed according to rules of reason and ■common sense and conformably to the intention of the Legislature. In this instance the Legislature was passing an act to secure protection for the fish and oyster industries, and to punish the acts of those who would destroy those industries if not restrained by the strong arm of the law. Each article of the act is a separate act, complete in itself, rendering criminal the doing or failing to. do certain things, and providing a punishment therefor. In one, it makes it unlawful not to scatter culls, and provides a punishment; in another, it makes it an offense to catch fish, turtle, terrapin, or shrimp in certain waters with seines, dragnets, fykes, set nets, trammel nets, traps, dams, or weirs, and so on with each separate article. It is reasonable to so construe article 906 as to make it refer to its own provisions alone, as was clearly the intent of the Legislature, and it should be upheld. Railway v. Gross, 47 Tex. 428. As said by the Supreme Court in the case of Russell v. Farquhar, 55 Tex. 355, in discussing an attempt to construe statutes by the mere literal meaning of the words in which they are couched:

“To be thus controlled, as lias often been held, would be for the courts, in a blind effort to refrain from an interference with legislative authority by their failure to apply well-established rules of construction, to in fact abrogate their own power and usurp that of the Legislature, and cause the law to be held directly the contrary of that which the Legislature had in fact intended to enact. While it is for the Legislature to make the law, it is the duty of the courts to try out the right intendment of statutes upon which they are called to pass, and by their proper construction to ascertain and enforce them according to their true intent. For it is this intent which constitutes and is in fact the law, and not the mere verbiage used by inadvertence, or otherwise, by the Legislature to express its intent, and to follow which would prevent that intent.”

It would be a terrible perversion of the statute in question to hold that a statute should be destroyed that has for its object the protection of one of our greatest industries from vandalism, by not recognizing the clear intent to use the word “article” instead of “act.” It would be inexcusable to strike down this wise and salutary law by such a narrow and unwarranted construction.

In his fiat the trial judge did not attempt to enjoin the enforcement of the articles of the statute defining the different crimes and providing the penalties, but enjoined appellants from acting under the provisions of articles 923c and 923k, the first of which declares that “nets, seines, boats or other devices for catching fish, unlawfully used in the waters of this state, or boats, dredges, barges and tongs unlawfully used in violating the oyster laws of this state, are hereby declared public nuisances and may be summarily seized, destroyed and abated by the Game, Fish and Oyster Commissioner, or his deputies, and no action for damages shall be maintained against such Commissioner or his deputies for such seizure, destruction and abatement”.; and the second article makes it unlawful for any person to carry into, or have in his possession, any seine or dragnet, in any waters where seining is prohibited, and makes it punishable as a misdemeanor and gives the Commissioner authority to destroy any such seine or dragnet.

It is declared in article 3980, Revised Statutes, that:

“All of the public rivers, bayous, lagoons, lakes, bays and inlets in this state and all that part of the Gulf of Mexico within the jurisdiction of this state, together with their beds and bottoms, and all of the products thereof, shall be, continue and remain the property of the state of Texas, except so far as their use shall be permitted by the laws of this state.”

This is merely a declaration of the sovereignty that abides in every state so far as the fish and game within its borders are concerned, and in the consideration of the rights of individuals in connection with fish and game it must always be kept in mind that the state has the undoubted right, power and authority to regulate and control the taking of fish or killing of game, or absolutely prohibit the doing of either. The citizen has no vested right in game and fish, but the state owns the game and the tide waters and the fish therein, as well as the beds of all tide waters. McCready v. Virginia, 94 U. S. 391, 24 L. Ed. 248; Geer v. Connecticut, 161 U. S. 519, 16 Sup. Ct. 600, 40 L. Ed. 793; Silz v. Hesterberg, 211 U. S. 31, 29 Sup. Ct. 10, 53 L. Ed. 75; Ex parte Blardone, 55 Tex. Cr. R. 189, 115 S. W. 838, 116 S. W. 1199, 21 L. R. A. (N. S.) 607. The state has the power and authority to make laws deemed necessary and proper for the preservation of its game and fish, and such power has been exercised so long and so beneficially that any attempt to call it in question will meet with scant consideration by any appellate court. Not only has the state the power to preserve its game and fish, but it is its duty to do so by enacting laws prohibiting destructive and exhaustive methods of taking, the same, by the use of instruments that will destroy them at improper times and places. In the exercise of this wise and beneficent police power the state has authority to not only declare that seines and nets shall not be used in its waters, but to make such use a crime, and to take all measures necessary to prevent a repetition of such offenses. Such instruments of destruction of fish may be declared nuisances by the Legislature and its officers authorized to destroy them.

In the case of Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385, it was held, in sustaining a statute of New York which declared nets nuisances and provided for their destruction:

“An act of the Legislature which has for its object the preservation of the public interests against illegal depredations of private individuals ought to be sustained, unless it is plainly vio-lative of the Constitution, or subversive of private rights. In this case there can be no doubt of the right of the Legislature to authorize judicial proceedings to be taken for the condemnation of the nets in question, and their sale dr destruction by process of law. * * * But where the property is of little value, and its use for the illegal purpose is clear, the Legislature may declare it to be a nuisance, and subject to summary abatement. Instances of this are the power to kill diseased cattle; to pull down houses in the path of conflagrations; the destruction of decayed fruit or fish or unwholesome meats, or infected clothing, obscene books or pictures, or instruments which can only be used for illegal purposes. While the Legislature has no right arbitrarily to declare that to be a nuisance which is clearly not so, a good deal must be left to its discretion in that regard, and if the object to be accomplished is conducive to the public interests, it may exercise a large liberty * * * in the means employed. * * * The object of the law is undoubtedly a beneficent one, and the state ought not to be hampered, in its enforcement by the application of constitutional provisions which are intended for the protection of substantial rights of property. It is evident that the efficacy of this statute would be very seriously impaired by requiring every net illegally used to be carefully taken from the water, carried before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be instituted for its condemnation.”

The law of New York authorized the destruction of the fish nets in much the same terms that the Texas statute does.

The Supreme Court of the United States also held in the case cited that the contention that nets are not in themselves a nuisance, but are lawful acts of manufacture and ordinarily used for a lawful purpose is not a conclusive argument against the law, for the Legislature has the power -to declare that which is perfectly innocent in itself to be unlawful. And in the case of People v. West, 106 N. Y. 293, 12 N. E. 610, 60 Am. Rep. 452, which is cited by the Supreme Court in Law-ton-Steele Case, it is held:

“It is not a good objection to a statute prohibiting a particular act and making its commission a public offense that the prohibited act was before the statute lawful or even innocent, and without any element of moral turpitude.”

The Supreme Court also approved the case of State v. Snover, 42 N. J. Law, 341, in which it was held that:

“After a statute has declared an invasion of a public right to be a nuisance, which may be abated by the destruction of the object used to effect it, the person who, with actual or constructive notice, * * * sets up such nuisance cannot sue the officer whose duty it has been made, by the statute, to execute its provisions.”

There are cases that hold to the contrary of the propositions herein enunciated, but we prefer the line of decisions, sustaining the authority of the state, in the protection of a great industry, to declare instruments of destruction nuisances and to abate them by destroying them, to that line which would erect barriers of technicalities in the pathway of the state and permit the destruction of fish and game in the interest of men who have no end in view except the upbuilding of their personal fortunes at the expense of the public. No right of theirs is invaded by providing for the destruction of seines and nets found in prohibited places, for it is only by permission of the 'state that they can fish in its waters, and they must conform to its restrictions and regulations or incur the penalty of being stripped of the right to fish at all. As said by Judge Ramsey in Es parte Blardone:

“The Legislature has not only the authority to regulate the slaughter of such game, but to make such laws * * * as may and will defeat evasions and prevent violations of this law.”

It is unreasonable to contend that the state has no authority to prevent seines and nets being taken into certain prohibited waters when the state would have the authority to say that no fish could be caught with seines or nets in any of its waters, and to declare all seines and nets found on or in such waters nuisances and provide for their abatement.

There was no effort upon the part of the Commissioner to prevent fishing in waters not within one mile on either side of passes leading from the Texas coast waters into the Gulf of Mexico, and days are fixed by the orders of the Commissioner on which seines can be carried to the open waters and on which they can be returned.

It is no objection to the order closing certain waters against fishing with seines and nets because it does not name the time that it is closed. There is no requirement that it shall be for a definite period.

It is insisted by appellee that while the Supreme Court of the United States and the New York Court of Appeals have held that the state could declare the setting or placing of nets in forbidden waters a nuisance and destroy the nets, there is no authority for declaring the carrying of nets or seines over, across or through the same waters a nuisance and abate the same. If the state deemed it necessary for the protection of fish to forbid persons carrying nets or seines into waters in which seining is prohibited, it could do so. The authority to prohibit the unlawful use of nets in the waters carries with it the authority to prohibit seines from being carried into places where the law could be violated by their use. There can be no necessity for carrying them into forbidden waters, and it is a wise precaution to remove the temptation to fish from those who might desire to depredate on public property. The unbridled destruction of game and fish in Texas has continued for so long a time that many persons are rebellious when it is sought to protect these sources of food supply, and cannot realize that they are the property of the state and not private property.

The statute of New York, construed by the United States Supreme Court, gave the authority to seize and destroy any net found in closed waters as well as those set. Lawton v. Steele, 119 N. Y. 227, 28 N. E. 878, 7 L. R. A. 184, 16 Am. St. Rep. 813. The Court of Appeals declared:

“But we know of no limitation of legislative power which precludes the Legislature from enlarging the category of public nuisances, or from declaring places or property used to the detriment of public interests, or to the injury of the health, morals, or welfare of the community, public nuisances, although not such at common law.”

The imaginary case of some one having his net taken irom him and destroyed while going to or returning from the open waters of the Gulf is not before this court, and probably never will be, and we are not called upon to meet or consider any such case. The law is not oppressive, but was passed to conserve the public interests and protect public property and invades no individual rights, and injures no one who is willing to obey its behests. Such laws, wise and beneficent as they are, have met with resistance all over the Union, but in most instances have been sustained. As said by the Court of Appeals of New York in Phelps v. Racey, 60 N. Y. 10, 19 Am. Rep. 140:

“The Legislature may pass many laws the effect of which may be to impair or even destroy the right of property. Private interest must yield to the public advantage. All legisla-tiye powers, not restrained by express or implied provisions of the Constitution, may be exercised. The protection and preservation of game has been secured by law in all civilized countries, and may be justified on many grounds, one of which is for purposes of food. The measures best adapted for this end are for the Legislature to determine, and courts cannot review its discretion. If the regulations operate, in any respect, unjustly or oppressively, the proper remedy must be applied by that body.”

The sentiment of the people, however, has at last been aroused, and is back of the legislation to conserve the fish and game of the state, and no backward steps will be taken in the matter. The Legislature has spoken in response to the demands of modern, civilized sentiment, their laws have not violated any constitutional provision or invaded any private rights, and they must be obeyed. Commonwealth v. Patsone, 231 Pa. 46, 79 Atl. 928; People v. Booth Fisheries Co., 253 Ill. 423, 97 N. E. 837.

Appellee has an adequate remedy at law for all damages he may sustain from the unlawful destruction of his property, and is not entitled to the equitable remedy of injunction to prevent an officer from executing the laws of the state, which may or may not be unreasonable. As to the wisdom and propriety of the laws, courts can have no concern, so long as they do not invade any vested right of the citizen. Lawton v. Steele, 152 U. S. 133, 14 Sup. Ct. 499, 38 L. Ed. 385.

The state of Texas empowers the Commissioner to give licenses to fishermen and dealers, and provides that if one of them is found guilty of a violation of law regulating fishing, his license shall be forfeited. This the state has the undoubted power and authority to do. Fishermen have no vested right to take fish from waters belonging to the state any more than the citizen has the vested right to engage in the sale of liquors, and in the one case as in the other the state can, under certain circumstances, recall and revoke the license. Greiner v. Truett, 97 Tex. 377, 79 S. W. 4; Hernandez v. State (Civ. App.) 135 S. W. 170; Baldacchi v. Goodlet (Civ. App.) 145 S. W. 325; Lane v. Schultz (Civ. App.) 146 S. W. 1009.

The judgment of the trial court is reversed, and judgment here rendered that the writ of injunction he denied, and that ap-pellee pay all costs in this behalf expended.


author: CARL, J. J. B.

text:
    LAKESIDE IRR. CO. et al. v. BUFFINGTON.
    (No. 5283.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 20, 1914.
    Rehearing Denied June 17, 1914.)
    1. CORPORATIONS (§ 619) — DISSOLUTION—APPOINTMENT of Receiver — Statutory Provision — “Receiver.” •
    Under Rev. St. 1911, art. 1206, providing that, upon the dissolution of a corporation, “unless a receiver is appointed by some court of competent jurisdiction,” the president and directors shall be trustees of the creditors and stockholders, with full power to wind up its affairs, a receiver appointed for a corporation by a court, and legally discharged prior to the dissolution of the corporation, was not a “receiver” within the exception of the statute, since, as he was not appointed in a suit to forfeit the charter of the corporation, the corporation was not dissolved, and stood as though no receivership had been taken out.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2459, 2460; Dec. Dig. § 619.

    For other definitions, see Words and Phrases, vol. 7, pp. 5993-5997; vol. 8, pp. 7780, 7781.]
    2. Corporations (§ 619*) — Dissolution—Receivership— Statutory Provision.
    Under Rev. St. 1911, art. 1206, providing that, upon the dissolution of a corporation, unless a receiver is appointed, the president and directors shall be trustees of the creditors and stockholders, the stockholders could not, after dissolution, override the statute by appointing a third party trustee so as to prevent the president and directors from becoming trustees of the creditors.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2459, 2460; Dec. Dig. § 619.]
    3. Corporations (§ 630) — Dissolution—Action by Creditors aeter Dissolution-Parties Injured by Decree.
    In an action by a creditor of a corporation after its dissolution against the president and directors thereof as trustees, the fact that an eouitable lien was fixed and foreclosed upon property of the corporation in the hands of one of such directors, who had by the stockholders been constituted trustee to wind up its affairs and its property conveyed to him, was not injurious to such director, Rev. St. 1911, art. 1207, making the president and directors, as trustees of the creditors upon dissolution, liable to the creditors and stockholders to the extent of the property coming into their hands, and article 1209 giving him the right of contribution against the stockholders if he should be compelled to pay more than his just proportion.
    [Ed. Note. — For other cases see Corporations, Cent. Dig. §§ 2482-2486; Dec. Dig. § 630.]
    4. Corporations (§ 630) — Action against Corporation after Dissolution — Parties.
    That the judgment in such action was in name against the corporation, and the foreclosure against the director was not material, since it was in effect a suit to subject the property of the corporation to plaintiff’s demand, and the statute gives the trustees the right to maintain or defend actions in the name of the corporation.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2482-2486; Dec. Dig. § 630.]
    5. Corporations (§ 630) — Action against Corporation after Dissolution — Parties.
    In an action by a creditor of a corporation, after dissolution, against the president and directors as trustees, as authorized by Rev. St. 1911, art. 1206, making, upon dissolution of a corporation, its president and directors trustees of creditors, and authorizing actions against them, the stockholders were not necessary parties.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 24S2-2486; Dec. Dig. § 630.]
    6. Corporations (§ 547) — Dissolution — Lien of Creditors.
    The creditors of a corporation in liquidation have an equitable lien on its assets in the hands of the stockholders or trustees to secure their claims.
    [Ed. Note. — For other cases, see Corporations, Cent. Dig. §§ 2178-2181; Dec. Dig. § 547.]
    7. Appeal and Error (§ 736) — Assignment of Errors — Specification of Errors.
    An assignment of error, containing more than one ground of complaint, and not being the same in the brief as that set forth in the motion for new trial, will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3028, 3029; Dec. Dig. § 736.]
    8. Frauds, Statute of (§ 33) — Promise to Answer for Default of Another.
    The Lakeside Irrigation Company, upon purchasing the irrigation plant of the Eagle Lake Irrigation Company, in its deed of purchase, assumed to carry out the rental agreements of the Eagle Lake Company as to the furnishing of water to its tenants. Plaintiff, before taking a lease from the Eagle Lake Company, was promised by the Lakeside Compahy that they would furnish him all necessary water for one-fifth the crop. Held,, that the promise of the Lakeside Company to furnish the water was not a mere voluntary verbal guaranty of a pre-existing contract of the Eagle Lake Company, but a direct promise for a sufficient present consideration.
    [Ed. Note. — For other cases, see Frauds, Statute of, Cent. Dig. §§ 50-53, 56; Dec. Dig. § 33.]
    9. Waters and Water Courses (§ 156*)— Irrigation Contract — Sale of Plant — Estates and Interests Created — Incorporeal Hereditament.
    A clause in a deed of purchase by the Lakeside Irrigation Company of the irrigation plant of the Eagle Lake Irrigation Company, binding the grantee to furnish water for lands leased by the grantor, created an incorporeal hereditament .appurtenant to the land and running with it.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. §§ 158, 174-183; Dec. Dig. § 156.]
    10. Waters and Water, Courses (§ 254)— Irrigation Contract — Sale of Plant-Action against Purchaser.
    Where defendant irrigation company purchased the plant of another and assumed its contracts, plaintiff, having a contract with such other company, could maintain an action direct against the purchasing company on its assumed obligation.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. § 254.]

      11. WATERS AND WATER COURSES (§ 254)— Irrigation Contract — Construction.
    A contract between an irrigation company and a tenant provided that the manner of distributing water upon the land leased was to rest entirely with the irrigation company, and another clause bound the company to “furnish the necessary water to properly irrigate the said land for rice culture.” Held, that, though the company had the right to say when water should be furnished, it could not refuse to furnish any water at all on the ground that the crop was worthless.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 311; Dec. Dig. § 254.]
    12. Waters and Water Courses (§ 254)— Irrigation Contract — Construction.
    Where an action by a tenant of E. irrigation company against defendant irrigation company for 'damages for failure to furnish water was not based solely on defendant’s assumption _ of the obligation of the E. company to furnish the water, but also upon a direct promise by defendant, a limitation of the amount of damages in the lease from the E. company did not inure to the benefit of defendant.
    [Ed. Note. — For other cases, see Waters and Water Courses, Cent. Dig. § 3ll; Dec. Dig. § 254.]
    13. Appear and Error (§ 215) — Presentation and Reservation in Lower Court oe Grounds oe Review — Exceptions.
    Defendant, by not excepting in the trial court to a charge on the ground that it was on the weight of the evidence, waived such objection, and hence an assignment on such ground could not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. § 215.]
    14. Appear and Error (§ 742) — Assignments oe Error — Propositions and Statements.
    Assignments not followed by sufficient propositions and statements will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3000; Dec. Dig. § 742.]
    15.Appear and Error (§ 215) — Presentation and Reservation in Lower Court oe Grounds oe Review — Necessity oe Exceptions.
    It not being made to appear that objection was made in the trial court to the portion of a charge complained of in an assignment, the assignment will not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 1309-1314; Dec. Dig. §
    16.Appear and Error (§ 751) — Presentation and Reservation in Lower Court oe Grounds oe Review — Motion eor New Trial.
    Where an assignment as set out in the brief was not the same as contained in the motion for new trial, it would not be considered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3039-3042; Dec. Dig. § 751.]
    17.Appear and Error (§ 731) — Assignment oe Error— Specieication op Errors.
    An assignment, “The court erred in receiving the verdict and rendering judgment thereon in this case,” was too general for review.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. §§ 3017-3021; Dec. Dig. § 731.]
    Appeal from District Court, Colorado County; M. Kennon, Judge.
    Action by J. B. Buffington against the Lakeside Irrigation Company and others. Judgment for plaintiff, and defendants ap-
    peal.
    Affirmed.
    W. L. Adkins, of Columbus, and W. S. Strickland, of Eagle Lake, for appellants. A. J. Wirtz, of Eagle Lake, and Ring, Cár-others & Brown, of Houston, for appellee.

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

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

   CARL, J. J. B.

Buffington brought this suit against the Lakeside Irrigation Company and the Eagle Lake Rice Irrigation Company, B. L. Vineyard, F. O. Norris, and W. F. B. Wicker, to recover damages alleged to have been suffered by Buffington by reason of the failure of the irrigation companies to furnish him sufficient water to properly irrigate 100 acres of land leased to him by the Eagle Lake Rice Irrigation Company. It is charged that the Eagle Lake Rice Irrigation Company conveyed its irrigation plant, canals, etc., to J. J. Raezer, who held for and conveyed same to Lakeside Irrigation Company, and the last-named company assumed the contracts and obligations of the Eagie Lake Rice Irrigation Company; that appel-lee had made a contract for the lease or rental of 100 acres of land, and was to pay as rent therefor three-tenths of the rice crop to the Eagle Lake Company as rent, and one-fifth of the crop to the Lakeside Irrigation Company for the water; that the rental contract was made with the Eagle Lake Company, same stipulating that one-half was to be paid to that company as rent, but that in truth and in fact the contract was made with both companies; that before he made the lease contract he was informed by the Eagle Lake Company that the water would be furnished by the Lakeside Irrigation Company for one-fifth of the crop, and that the Eagle Lake Company would guarantee the water; that he went to the Lakeside Company and told its manager that, unless the Lakeside Company would guarantee and promise him that they would furnish the water to him, he would not rent the land; that the Lakeside Company informed him that they would get one-fifth of the crop, and agreed with him that if he would rent the land, they would furnish him with water in consideration of such one-fifth of the rice; that he then went back to the Eagle Lake Company, and it presented him with a contract, which he signed. It is charged that this contract was recognized by both irrigation companies, but that both of them failed to furnish sufficient water, and by loss of his crop, he was damaged in the sum of $1,700. It is also alleged that the Eagle Lake Company had made an attempt to dissolve the corporation, and had distributed its assets among its stockholders, and that the bulk of the real estate had been transferred to B. L. Vineyard as trustee, and was still held by him. Vineyard, Norris, and Wicker were the directors of the Eagle Lake Rice Irrigation Company at the time the distribution was tnade, and it was sought to hold them personally liable because they had distributed the assets of the corporation without making provision for the payment of the plaintiff’s claim. An equitable lien was claimed against the land transferred to Vineyard. Vineyard answered, giving the names of the stockholders of the Eagle Lake Company, and asked that they be made parties. By the terms of the lease, which was to. begin January 1, 1910, and terminate when the rice was gathered, the Eagle Lake Company was to furnish the seed for one planting, along with the land, “and.further agreed that through its contract with said Lakeside Irrigation Company said Eagle Lake Rice Irrigation Company would furnish the necessary water to properly irrigate said land,” and plaintiff was to keep up the flumes, levees, etc., and work the land in a farmer-like manner, planting the rice by Juné 1, 1910. ' The petition alleges that plaintiff complied with and that defendants breached the contract Lakeside Irrigatiop Company answered, setting out that it had a contract, dated December 24, 1909, with its codefend-ant, Eagle Lake Company, by the terms of which it was agreed it would furnish water to plaintiff under such terms and conditions as were set forth in the contract between plaintiff and the Eagle Lake Company, and which contract provided that in case of damages caused by failure to furnish water that plaintiff should not recover damages of the Eagle Lake Company in excess of $3 per acre. The Eagle Lake Company pleaded its dissolution before the suit, denied generally the allegations, and alleged that the Lakeside Irrigation Company had assumed its contractual obligations when it bought its plant, etc., and prayed for judgment over against the Lakeside Company in case the plaintiff should recover of it. It was also alleged that F. O. Norris had been appointed receiver of the Eagle Lake Company in the early part of the year 1908 for the purpose of taking charge of its affairs; that he had paid the debts then existing against it, and said receiver had been discharged; that about December 27, 1909, at a meeting of the stockholders, more than four-fifths being present, they voted for the dissolution of the corporation and articles of dissolution ordered filed with the Secretary of the State of Texas, which was duly done before the accrual of the plaintiff’s cause of action. Vineyard and Wicker pleaded that they were acting as trustees in winding up the affairs of the Eagle Lake Rice Irrigation Company, and had discharged the trust and been released by the stockholders of the Eagle Lake Company; but B. L. Vineyard specially alleges that the contract sued upon was by the stockholders “placed in his hands for compliance as trustee for the said stockholders of said corporation.” And it is further alleged by Vineyard that the stockholders authorized and empowered him to do any and all things necessary to carry out said contract. In case of judgment against them, they prayed for judgment over against both irrigation companies. The verdict of the jury was for a total of $1,200, $243 was against both irrigation companies* and $957 was against the Lakeside Irrigation Company alone, and of the amount found against both companies, the Eagle Lake Company was given judgment over against the Lakeside Company for $103.50, and there was a verdict in favor of W. F. B. Wicker. But an equitable lien was found and foreclosed on the lands in B. L. Vineyard’s hands as trustee to secure the judgment rendered against the Eagle Lake Company. The cause was dismissed as to F. O. Norris.

We will first treat the assignments of error presented by appellants Eagle Lake Rice Irrigation Company and B. L. Vineyard, and such other assignments not thereby disposed of will be noticed later.

The receiver was appointed in the early part of 1908 for the Eagle Lake Company, the known debts were paid and the receiver discharged December 27, 1909, and the certificate of dissolution of the corporation was dated March 31, 1910, and filed in the Secretary of State’s office on April 2, 1910. This suit was filed about one year after the articles of dissolution were filed with the Secretary of State.

Article 1206 of the Revised Civil Statutes provides that:

“Upon the dissolution of any corporation, unless a receiver is appointed by some court of competent jurisdiction, the president and directors or managers of the affairs of the corporation at the time of its dissolution, by whatever name they may be known in law, Shall be trustees of the creditors and stockholders of such corporation, with full power to settle the affairs, collect the outstanding debts, and divide the moneys and other property among the stockholders, after paying the debts due and owing by such corporation at the time of its dissolution, as far as such money and property will enable them after paying all just and reasonable expenses; and to this- end, and for this purpose they may, in the name of such corporation, sell, convey and transfer all real and personal property belonging to such company, collect all debts, compromise controversies, maintain or defend judicial proceedings, and to exercise the full power and authority of said company over such assets and properties ; and the existence of eyery corporation may be continued for three years after its dissolution from whatever cause for the purpose of enabling those charged with the duty to settle up its affairs; and in case a receiver is appointed by a court for this purpose, t^e existence of such corporation may be continued by the court so long as in its discretion it is necessary to suitably settle up the affairs of such corporation.”

The clause “unless a receiver is appointed by some court of competent jurisdiction,” in the above article of the statute, does not apply to this case because that receiver had been appointed, served by paying off the debts, and was by the court legally discharged in December, 1909, prior to the dissolution of the corporation, the 2d day of April, 1910. Consequently, after the court ceased to administer the affairs of the corporation by discharging its receiver, the corporation stood as though no receivership had been taken out. It was not in a suit to forfeit the charter that the receiver was appointed, and the corporation was not then dissolved. For this reason the exception in the article of the statute would not apply, and upon the voluntary dissolution of the corporation by the stockholders, the president and directors would become trustees of its property for 'the creditors and stockholders, with full power to manage and control its affairs, and they could maintain and defend actions in the name of the corporation.

Article 1207 of the Revised Civil Statutes provides that:

“The trustees mentioned in the preceding article shall be severally responsible to the cred-itoi's and stockholders of such corporation to the extent of its property and effects that shall have come into their hands.”

The fact that the stockholders subsequent to the dissolution of the corporation constituted B. L. Vineyard their trustee for the property undisposed of would not be material; because the plain letter of the statute makes the president and directors trustees for both creditors and stockholders, and this statutory provision cannot be overridden by any action the stockholders may make, especially in so far as the creditors are concerned. This suit was brought against the corporation and its president and directors. The cause was. dismissed as to Norris, one of the directors, and judgment was in favor of Wicker, but a lien was fixed and foreclosed upon the property of the corporation in the hands of Vineyard to secure the judgment so rendered against the corporation. Vineyard could not be injured by this, because no personal, judgment was rendered against him. While the statute gives creditors the right to maintain a suit against all of the trustees, it at the same time provides that they shall be severally responsible to the extent of the property and effects coming into their hands. If Vineyard should have been compelled to pay more than his just proportion, he would have been protected by article 1209, which gives him the right of contribution from the stockholders. That the judgment was in name against the Eagle Lake Rice Irrigation Company and the foreclosure against Vineyard is not material, because it is in effect a suit to subject *the property of the corporation to the plaintiff’s demand, and the statute gives the trustees the right to maintain or defend actions in the name of the corporation. The stockholders were not necessary parties to the suit.

The first five assignments of error of the Eagle" Lake Company and B. L. Vineyard are overruled.

By the sixth assignment complaint is made that the court gave this charge:

“If you find a verdict against the Eagle Lake Rice Irrigation Company, you will find the plaintiff has an equitable lien upon the land described in this charge as having been transferred to B. L. Vineyard, and will find that such lien be foreclosed to the amount that you find against said Eagle Lake Rice Irrigation Company.”

The complaint is that the court erred in not submitting the matter of the existence of the equitable lien to the jury.

Vineyard was vice president and a director of the corporation at the time the assets were distributed among its stockholders in 1910, and he received a large part of the property, including that upon which the equitable lien was fixed and foreclosed. He got this in the process of liquidation. The assignments first and ninth are overruled, because the creditors of a liquidating corporation have an equitable lien on its assets in the hands of the stockholders or trustees to secure their claims, and the facts as' to the property foreclosed on were undisputed. National Bank v. Investment Co., 74 Tex. 437, 12 S. W. 101; Clevenger v. Galloway & Garrison, 104 S. W. 914; Panhandle Natl. Bk. v. Emery, 78 Tex. 498, 15 S. W. 24; Scott v. F. & M. Natl. Bank, 66 S. W. 499; Publishing Co. v. Hitson, 80 Tex. 216, 14 S. W. 843, 16 S. W. 551.

The seventh assignment complains, in substance, that the evidence fails to show the amount of damage found by the jury. We have carefully examined the evidence, and conclude that the damages recovered were sufficiently proven.

The judgment against the Eagle Lake Rice Irrigation Company was for $243, and the foreclosure upon the property in the hands of Vineyard was only to that extent; and we think the evidence was ample to sustain that amount. The assignment is overruled; and the eighth assignment will not be considered, because it contains more than one ground of complaint, and it is not the same in the brief as set forth in the motion for a new trial. Knox v. Robbins, 151 S. W. 1134. Bowers v. Goats, 146 S. W. 1013.

The first assignment of the Lakeside Irrigation Company complains of the refusal of the trial court to give a peremptory instruction to the jury to find for it; and it contends that its promise to furnish water was a voluntary verbal guaranty of a preexisting contract óf another, without consideration, and void. But Buffington testified that before making his contract with the Eagle Lake Company, he went to the manager of the Lakeside Company and told him about his contemplated rental contract, and that he did not want to, and would not, rent the land unless he could be assured of getting water; that while the contracts of rental were made in the name of the Eagle Lake Company, the Lakeside Company in its deeds of purchase had assumed to carry out the rental agreements as to the furnishing of water, and one-fifth of the crop was to go to the Lakeside Company as compensation for furnishing the water. The deeds bound that company to water the land. There is no contention that one-fiflh of the crop was not to go to the Lakeside Company. It in fact got that proportion of the crop that was raised; and when ap-pellee went to its manager before making the contract, which was partly for the Lakeside Company’s benefit, and told him that he would not rent the land unless his company would assure him that he would get water for his crop, there was a sufficient consideration. And it was not a pre-existing contract, but one then being made, which fact was known to the Lakeside Company. The clause in the deeds binding the Lakeside Company to furnish water to irrigate crops upon the land created an incorporeal her-editament, appurtenant to the land and running with it. It was not a verbal promise to answer for the default of another, but was a direct and positive promise to undertake to do a thing for a sufficient present consideration. Its contract of assumption inured to the benefit of the plaintiff. Spann v. Cochran, 63 Tex. 242; Meyer v. Walker-Smith Co., 127 S. W. 1120; W. U. Tel. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Mathonican v. Scott & Baldwin, 87 Tex. 396, 28 S. W. 1063; Am.-Rio Grande Land & Irri. Co. v. Mercedes, 165 S. W. 293.

By its second assignment the Lakeside Irrigation Company contends that the court erred in refusing to give its requested special charge No. 2, which is to the effect that if the jury should believe that some time in the fall of 1909 there was a verbal lease agreement between plaintiff and B. L. Vineyard, the president of the Eagle Lake Rice Irrigation Company, and that the same was reduced to writing December 24, 1909, to return a verdict in favor of the Lakeside Irrigation Company. Vineyard was not president of the Eagle Lake 'Company at that time; Norris holding that position. This charge, if given, would have ignored the duties the Lakeside Company owed appellee by reason of the clauses in its deeds whereby it became bound to furnish water to irrigate this land, and any duties it might owe appellee as a public service corporation. The assignment is overruled. Spann v. Cochran, 63 Tex. 242; W. U. Tel. Co. v. Adams, 75 Tex. 531, 12 S. W. 857, 6 L. R. A. 844, 16 Am. St. Rep. 920; Mathonican v. Scott & Baldwin, 87 Tex. 396, 28 S. W. 1063; Am.-Rio Grande Land & Irr. Co. v. Mercedes, 155 S. W. 293; Meyer v. Walker-Smith Co., 127 S. W. 1120.

The Lakeside Irrigation Company requested and the court refused to give the following special charge:

“You are instructed that J. J. Raezer was the manager for the Eagle Lake Rice Irrigation Company, and had control of the lands and tenants of said company, including the plaintiff, J. B. Buffington, and the land planted by him in rice for the year 1910, and that by the terms of the written contract between the said J. B. Buffington and the Eagle Lake Rice Irrigation Company, nlaintiffi, J. B. Buffington, agreed that the Eagle Lake Rice Irrigation Company, or its manager, should have absolute and entire control of the canals, flumes, and water supply, and that said Eagle Lake Rice Irrigation Comnany, or its said manager, was to be the sole judge as to when water was to be furnished on said land. Therefore, ,you are instructed, if you find from the evidence that said J. J. Raezer refused to furnish to the plaintiff, J. B. Buffington, sufficient water to irrigate his said rice, and by reason thereof same was damaged or destroyed, and .you further find that Henry Theuman, who occupied the position of water man for the Lakeside Irrigation Company, was ready and willing to furnish such water, and if you also find that John J. Raezer instructed the said Theuman not to water said land, then you will find your verdict in favor of the Lakeside Irrigation Company.”

The evidence shows that Raezer was manager of both the E'agle Lake Company and the Lakeside Company. The appellee’s contract with the Eagle Lake Company has this clause in dt:

“The manner of distributing water to, on or upon the land of the party of the second part is to rest entirely with the party of the first part or its manager, who is to determine the most efficient and economical distribution thereof; and it is well understood by both parties to this contract that the party of the first part or its manager has absolute and entire control of the canal, flumes and water supply, and is to he the sole judge as to when same shall be furnished.”

Raezer testified that he was general manager and secretary of the Lakeside Irrigation Company, and also had the supervision of the Eagle Lake Company’s land business, including tenants. He says:

“The later planting he absolutely had no stand at all, and I refused to irrigate the same, but afterwards, to satisfy him and to show him he had no rice, I flooded a few pieces for him, and showed him that there was no rice on the said ground.”

He says he refused to water the 62 acres because there was no stand, and he would have been throwing away water.

“I was general manager and secretary of the Lakeside Irrigation Company during 1910. My duties in such position consisted of absolute control over canals, pumping plant, etc. I did have authority to say on behalf of said company to whom water should be furnished by said company. Yes, sir; I did make water contracts for said company.”

So Raezer is in the attitude of saying that as manager of the Lakeside Company he was ready and willing to furnish water, but as manager of the Eagle Lake Company he was unwilling to furnish same because of an insufficient stand of rice.

This contract, while it gave Raezer the right, on behalf of the Eagle Lake Company, to say when water should be furnished, did not give him or the company the right to re-’ fuse to furnish any water at all. It contains also the clause:

“And the party of the first part through its contract with the Lakeside Irrigation Go. shall furnish the necessary water to properly irrigate the said land for rice culture, after the rice is up and growing.”

So it will be seen, that the company is bound to furnish necessary water, but has the sole right to say when that shall be done. This does not mean that it may not be done at all, but is a right to be exercised in a reasonable manner.

The requested charge is further objectionable, because it assumes that Henry Theu-man is in,charge of the Lakeside Company’s canals and water, when the evidence shows that he was water and canal boss, with Rae-zer over him in full control. The third assignment is overruled; and the fourth and fifth assignments, being without merit, are also overruled.

Lakeside Irrigation Company complains of the court’s refusal to give its requested special charge No. 10, which is to the effect that if that company should be found liable, it could not be held in damages to exceed $3 per acre. This is based upon the theory that since the Lakeside Company agreed in its deeds of purchase to carry out the' contracts of the Eagle Lake Company, and that company’s contract with appellee limited its liability to $3 per acre for damages, the limitation would inure to the benefit of the Lakeside Company. This might be correct if appellee’s suit had been based solely upon the contract of assumption by the Lakeside Company in its purchase deeds. But it must be borne in mind that the pleadings charge that before making the contract with the Eagle Lake Company, appellee went to the Lakeside Company’s manager and told him that, unless that company would guarantee him water, -he would not rent the land from the Eagle Lake Company; and the Lakeside Company agreed to do so, in consideration of one-fifth of the crop to be raised, as water rent. The deeds do not contain such limitation as to damages, and no limitation appears in the agreement between the Lakeside Company and appellee. We think the court properly refused to give said charge, and the sixth assignment is overruled.

The seventh assignment is disposed of adversely to appellants, by what we have said in reference to similar assignments of the Eagle Lake Company and B. L. Vineyard.

The eighth assignment will not be considered, because complaint is made therein that paragraph No. 5 of the courts charge is upon the weight of the evidence, and the objection filed to that paragraph in the trial court did not raise, the question that it was on the weight of the evidence. Therefore, not having excepted to the charge on the ground now urged, appellant has waived any objection thereto. Rev. St. art. 1971, as amended by Acts 1913, p. 113.

The ninth and tenth assignments will not be considered, because they are not followed by sufficient propositions and statements, and it is not made to appear that objection was made to the portions of the charge complained of in the trial court.

There is no merit in the eleventh, twelfth, and thirteenth assignments, and they are overruled.

The fourteenth assignment will not be considered because the brief does not set it out the same as filed in the lower court. As stated in the brief it says: “The court erred in receiving the verdict and rendering judgment thereon in this case.” This is too. general; and, if we look to the assignment in the motion for a new trial, it would be subject to the objection that it is multifarious. Clearly the brief does not set out even-substantially the assignment as contained in the motion for a new trial. Bowers v. Goats, 146 S. W. 1013; Imperial Irr. Co. v. McKenzie, 157 S. W. 751; Fessinger v. El Paso Times Co., 154 S. W. 1171.

After careful consideration, we conclude that the judgment should be affirmed.