text:
    JANKS v. STATE.
    (No. 4454.)
    (Court of Criminal Appeals of Texas.
    April 25, 1917.
    On Motion for Rehearing, June 13, 1917.)
    1. Indictment and Information <&wkey;70 — Information— Sufficiency.
    An information, alleging that the prosecuting witness stated accused threatened to take his life, etc., held insufficient because not positively alleging accused’s commission of offense, but only that affiant charged him with it.
    [Ed. Note. — For other cases, see Indictment and Information, Cent. Dig. § 192.]
    On Motion for Rehearing. .
    2. Homicide &wkey;>256 — Threats to Kill — Sufficiency of Evidence.
    Evidence that accused stated he would get his gun and kill an officer before allowing him to seize property under writ of sequestration, which was denied by defendant, held not to sustain a conviction for making threats to kill.
    [Ed. Note. — For other cases, see Homicide, Cent. Dig. § 542.]
    Appeal from McLennan County Court; James P. Alexander, Judge.
    L. Janks was convicted of making threats to kill, and appeals.
    Reversed and remanded.
    John L. Poulter, of Ft. Worth, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

There are several questions suggested for revision, but under the view we take of the case but one is .necessary to be considered as it disposes of this appeal as presented.

The information reads as follows:

“Personally appeared before me the undersigned authority J, S. Dixon, who, after being duly sworn deposes and says that L. Janks in the county of McLennan and state of Texas, heretofore on or about the Sth day of November A. D. 1916, did then and there unlawfully and seriously threaten to take the life of a human being, to wit, J. S. Dixon, and did then and there unlawfully and seriously threaten to inflict serious bodily injury upon a human being, to wit, J. S,. Dixon, against the peace and dignity of the state.”

This information is not sufficient. The question having been passed upon several times, we deem it unnecessary to discuss it, but cite the authorities' which are in point. Zinn v. State, 68 Tex. Cr. R. 149, 151 S. W. 825, and Compton v. State, 71 Tex. Cr. R. 7, 158 S. W. 515.

The information being insufficient, the judgment is reversed, and the cause remanded.

On Motion for Rehearing.

On the former day of the term the judgment herein was reversed and remanded. Since the rendition of that opinion the state has filed a motion for rehearing, supplying an information, which seems to be in accord with the law. The motion for rehearing is granted, and the record passed on as presented.

We think it ought to be stated that many of the records brought before this court recently have been sent up in a very negligent and careless manner. Papers have been tran-. scribed wrongly, and some omitted. Defective records in all forms have been before this court recently, and it may be necessary, unless this matter be changed and the records attended to as they should be, and made up according to the rules', that this court may be called upon to administer some discipline. We call attention to this, and hope the clerks will not be negligent hereafter.

This case is based upon the proposition that appellant made serious threats' to 'kill John S. Dixon. The evidence shows that appellant, a boy about 19 years of age, had bought a buggy supposedly on the installment plan or on credit, and had not fully paid for it. The seller had instituted a sequestration case, and Dixon and another party went out to levy the writ of sequestration and take the buggy. When they went to the residence of appellant’s father to get the buggy appellant was down in the field at work. 1-Ie saw them, and came to where they were. Upon being informed they intended to take the buggy, he told them they could not do so. This brought trouble between them, the state contending that he threatened to kill the officers, or words to that effect. Sharp words occurred, and Dixon informed him that he would take the buggy, and that if he, appellant, wanted to .use his gun, he had better get it as he, Dixon, was armed. He says appellant went into the house. When he came back he had something in his pocket. He says1 whatever this was was not seen, but the theory of the state was that it was supposed to be a pistol. The state’s theory was that during this discussion appellant made the threat that if Dixon undertook to carry the buggy away, he “would pump him full of lead.” Appellant’s theory is that he did not threaten to kill them on account of the buggy, but he protested against their taking the buggy under the circumstances, and this led to trouble, and Dixon hit him two or three times; that he then told him if he did not quit beating him he would pump him full of lead. Appellant was .a country boy about 19 years of age, and had bought this buggy on a credit, but had not paid for it, and this sequestration suit was brought to take the buggy away from him and carry it to town. The sequestration writ was subsequently quashed and the buggy returned to the boy.

The court seemed to have tried this case largely upon the theory it was' a resistance of appellant to the execution of the sequestration writ, and not threats to take life. Whatever threats may have been made, whether conditional or not, they grew out of the fact that the parties were undertaking to execute, or were executing, the sequestration writ and taking the buggy away, and attendant facts and circumstances. After a careful reading of the facts in the case we are of opinion that they are not sufficient to justify the verdict of the jury. The state relied upon this state of case as made by the witness Dixon: While he had the buggy or about the time he was taking it appellant came walking up and said:

“ ‘What are you going to do with my buggy?’ and I told him I was going to take it to town. I showed him the writ and gave him a citation. He would not' take the citation, and I stuck it under his suspenders. He says, ‘You can’t take that buggy off,’ and I said, T certainly will;’ that I had a writ for it and was going to take it. He said, T will go and get my gun and kill you before you shall take it.’ I told him to go get his gun; that I already had mine. He was in his shirt sleeves, and he turned and went into the house, and in a few minutes he came out with his coat on, and with something sticking up in his hip pocket. He then said, ‘Xou had just as well cut it loose; if you don’t I will pump you full of lead.’ I made a grab at him, and just struck the lapel of his coat with my fingers, and he run back into the yard. About that time I heard a woman scream, and they came running from everywhere. Some came out from the house and some from behind the house and some from the field; there must have been 12 or 15 people como running up around me.”

This is a general statement, and as strong as the state put its case. This is the party whose life was threatened. This witness testified and the facts all show without contradiction that this was the state’s case. The defendant denied these things, and said he was struck by Dixon and finally knocked down, and it was at that time he said he would pump him full of lead if he. did not quit beating him; that he had no pistol, and that he did n'ot get a pistol when he went in the house. This was but a conditional threat. It was not executed, nor sought to be executed. If the state is rightj and he had the pistol, he could have done so. If he was right about it, he had no pistol, and could not do anything. It was not a future threat, but it was a threat now to be executed and at the time it was made. He did not execute it, or attempt to execute it, and the evidence, in the judgment of the writer, excludes the idea that it was seriously made to kill, and he is not willing under this record to permit this conviction to stand.

The state’s motion for rehearing is granted, and the judgment now reversed and remanded on questions presented by appellant.
      <S=»For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


source: Caselaw Access Project

author: DAVIDSON, P. J.

license: Public Domain

text:
    BRISCOE v. STATE.
    (No. 4507.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    1. Criminal Daw <&wkey;814(l) — Pandering — Instructions — Application to Case.
    An instruction that if defendant, by any means set out in statute on pandering, caused a certain woman to enter or remain in house where prostitution was encouraged or allowed, he would be guilty of pandering, is erroneous, where many means enumerated in statute were not charged nor proven.
    [Ed. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 1979, 1980.]
    2. Witnesses <&wkey;380(5) — Impeachment—Own Witness — Contradictory Statements.
    The state has no right to elicit from its own witness testimony which it knows in advance will be contrary to statements made by her in an affidavit, as a foundation for introducing affidavit itself, containing incriminating statements, for purpose of impeachment.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1214, 1219.]
    3. Witnesses <&wkey;380(5) — Impeachment — Own Witness — Contradictors' Statements.
    The state cannot impeach its own witness by proving inconsistent statements, where such witness simply fails to remember, or refuses to state facts, or fails to make out state’s case, since this is a mere failure to make proof.
    [Ed. Note. — For other cases, see Witnesses, Cent. Dig. §§ 1214, 1219.]

      4. Ckiminai, Law <&wkey;370 — Pandering—Evidence oe Other Offenses.
    In a prosecution for pandering, where state claims that defendant connived at his wife’s illicit intercourse, evidence is admissible on its behalf that, several years before events on which indictment is based, she had intercourse with men without defendant’s knowledge, though he was jealous.
    [E'd. Note. — For other cases, see Criminal Law, Cent. Dig. §§ 825-829.]
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    J. H. Briscoe was convicted, of the offense of pandering, and appeals.
    Reversed.
    Ben L. Cox, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   DAVIDSON, P. J.

Appellant was convicted of pandering; his punishment being assessed at five years’ confinement in the penitentiary.

The indictment contains six counts, presenting several phases of the statute defining pandering. Some clause of the statute was selected and placed in these different counts. The writer deems it necessary, in view of the authorities, to discuss two propositions: First, alleged errors in the court’s charge; second, admission of testimony to which exceptions were reserved.

The court in the first section of the charge copies the entire statute defining the offense of pandering, which contains a great many ways by which that offense may be committed. Quite a number of these were not charged in any count in the indictment. Exception was taken to this general statement of the court, which might not be sufficiently erroneous to require a reversal, but for the fact that the third subdivision of the charge undertakes to submit the law not applicable to the facts nor warranted by the law as applied to tire indictment. It will be quoted:

“Now, if you believe from the evidence beyond a reasonable doubt that the defendant, J. H. Briscoe, on or about October 23, 1916, the date alleged in the indictment, in the county of Taylor and state of Texas, procured, or attempted to procure, or was then and there concerned in procuring, Beatrice Briscoe, a female, or by abuse of his (the said J. I-I. Briscoe’s) position of confidence and authority, or by any of the means or methods set forth above, in paragraph numbered 1, of this charge, defendant caused Beatrice Briscoe to enter or remain in a place or house where prostitution was then and there encouraged or allowed, you will find him guilty of pandering as charged in the indictment, and assess his punishment,” etc.

It will be seen that, in thus authorizing the jury to convict, they were' told that if appellant, by any of the means set out in subdivision No. 1, which contained all the definitions of pandering, caused Beatrice Briscoe to enter or remain in a house where prostitution was encouraged or allowed, he would be guilty. The exception is well taken. The court is not authorized to submit any theory of the law for conviction, except as charged in the indictment and supported by the facts. | Many of those clauses-were not charged in the indictment, and, had they been charged, the state did not even attempt to prove many of them; at least, if the state did, the evidence is not incorporated in this record. The facts relied upon by the state substantially show that appellant and his wife lived in Abilene, prior to the alleged offense, in a home of their own, a private residence: that on or about the 23d of October a man whose name is Fee had a conversation with the defendant with reference to finding a loose woman. I-Ie testified that appellant conveyed him within a block of his (appellant’s) house, where Mrs. Briscoe lived, and pointed to the house, putting him out of his auto at that point; that he (Fee) went to the house and had intercourse with appellant’s wife, paying her a financial consideration. Later, without appellant’s connivance. Fee took one or two others to the house, and they had intercourse with Mrs. Briscoe. There is some evidence that that house sustained the reputation of being one of ill fame, and there is evidence, also, that Mrs. Briscoe sustained the reputation of being of loose virtue.

Appellant’s case was the converse, and under this state of ease the jury was authorized by the court’s charge to find appellant guilty, if he did any of the acts set out in the statute. That statute provides, if any person shall procure, or attempt to procure, or be concerned in procuring, with or without her consent, a female inmate for a house of prostitution, or who by promises, threats, violence, or by any device or scheme, shall cause, induce, persuade, or encourage a female person to become an inmate of a house of prostitution, or shall procure a place as inmate in a house of prostitution for a female person, or person who shall by promises, threats, violence, or by any device or scheme, cause, induce, persuade, or encourage an inmate of a house of prostitution to remain therein as such inmate, or any person who shall by fraud, or artifice, or by duress of person or goods, or by abuse of any position of confidence or authority procure any female person to become or remain an inmate of a house of ill fame, or to enter any place in which prostitution is encouraged or allowed in this state, or to come into this state, or to leave this state, for the purpose of prostitution, or who shall procure any female person to become an inmate of a house of ill fame within this state, or who shall give, or agree to receive or give, any money or thing of. value for procuring, or attempting to procure, any female person to become an inmate of a house of ill fame within this state, or to come into or leave this state, for the purpose of prostitution, shall be guilty of pandering. Many of these things, as before stated, were not charged in the indictment, and there was no evidence introduced, or sought to be introduced, that undertook to sustain many of these clauses of the statute; yet the court authorized a conviction for a violation .of any of them though not charged in the indictment. This is reversible error.

There is another proposition in the case that will require reversal. Appellant’s wife was used as a witness by the state. She did not testify as desired for the state; in fact, her testimony would show that her course of conduct, while illicit, was secret and hidden from appellant, that he knew nothing about it, and that, while sometimes he was jealous, she was able always to persuade him of the fact that she was virtuous, and his suspicions were not justified. Before moving to the county of Taylor, to the city of Abilene, he became sufiiciently jealous of her on one occasion to kill a party. This killing occurred in a different section of the! state. After appellant was arrested, she went to the courthouse with a view of visiting her husband in jail. The officers took charge of her, and told her they were going to put her in jail, and "perhaps did so. While in their custody, and under their influence and control, she made a written statement before a justice of the peace, which was duly signed and made into the form of an affidavit. In this affidavit her statements would show that appellant was guilty of pandering, and permitted, if not procured, her to sell her body for the purpose of gain. This statement was made in October, 1916. On the 7th of March following she wrote the district attorney a letter to the effect that her affidavit was false, and she would not testify as therein stated. Her letter to the district attorney isi as follows:

“Abilene, Texas, March 7, 1917.
“Mr. Rosenquest: I want to put you on notice that I was scared into signing a statement before the justice of the peace. There is no truth in it, and I was scared into signing it. Mr. Briscoe did not know anything about me making dates. I had kept it from him. He never made any dates for me that I know of.
“[Signed] Beatrice Briscoe.”

When Mrs. Briscoe failed to testify to incriminating facts, the district attorney took this affidavit, and, question by question, which is quite lengthy, asked her whether those statements were true or false. Without stating her testimony in this respect, it is sufficient to state that she contradicted the matters set out in the affidavit, and after the district attorney finished this matter he placed in evidence before the jury the affidavit itself. To all this objections were urged. These were well taken. The state was not surprised at the testimony of this witness, because she had notified the district attorney on the 7th of March, prior to the trial, that she would not testify as indicated in the affidavit; therefore the district attorney was not and could not have been surprised. This comes within the rule laid down by our decisions as being a failure of testimony.

The rule is that a party may not place a witness on the stand under such circumstances in order to lay a predicate for crimi-nating facts, or place such evidence before the jury under the guise of impeachment. In other words, in this case the prosecution was not authorized to put this woman upon the stand 'and elicit testimony which the state knew, or was advised in advance, would not be in accord with her affidavit, and by failing to testify to the facts set out in the affidavit, which would have been criminat-ing, had she so testified, as a predicate for impeachment, and then introduce the affidavit or sworn statement. This was a failure of testimony. He was not surprised by her failure to swear as indicated in the affidavit, because she had given him timely warning in writing. These matters have been the subject of a great many decisions. See Hollingsworth v. State, 182 S. W. 465; Taylor v. State, 179 S. W. 115; Williford v. State, 36 Tex. Cr. R. 414, 37 S. W. 761; Skeen v. State, 51 Tex. Cr. R. 39, 100 S. W. 770; Renn v. State, 64 Tex. Cr. R. 639, 143 S. W. 167.

It is a well-settled rule that it is error to permit the state to impeach her own witness, where such witness simply fails to remember, or refuses to state facts, or fails to make out the state’s case.- A mere failure to make proof is no ground for impeaching, a witness. Bennett v. State, 24 Tex. App. 73, 5 S. W. 527, 5 Am. St. Rep. 875; Dunagain v. State, 38 Tex. Cr. R. 614, 44 S. W. 148; Smith v. State, 45 Tex. Cr. R. 520, 78 S. W. 519; Scott v. State, 52 Tex. Cr. R. 164, 105 S. W. 796; Wells v. State, 43 Tex. Cr. R. 451, 67 S. W. 1020; Owens v. State, 46 Tex. Cr. R. 14, 79 S. W. 575; Hanna v. State, 46 Tex. Cr. R. 5, 79 S. W. 544; Ware v. State, 49 Tex. Cr. R. 413, 92 S. W. 1093; Quinn v. State, 51 Tex. Cr. R. 155, 101 S. W. 248; Shackelford v. State, 27 S. W. 8; Finley v. State, 47 S. W. 1015; Knight v. State, 65 S. W. 88; Gibson v. State, 34 Tex. Cr. R. 218, 29 S. W. 1085; Kessinger v. State, 71 S. W. 597; Erwin v. State, 32 Tex. Cr. R. 519, 24 S. W. 904; Ozark v. State, 51 Tex. Cr. R. 106, 100 S. W. 927; Gill v. State, 36 Tex. Cr. R. 589, 38 S. W. 190; Largin v. State, 37 Tex. Cr. R. 574, 40 S. W. 280; Thomas v. State, 14 Tex. App. 72; Dawson v. State, 74 S. W. 912; Goss v. State, 57 Tex. Cr. R. 557, 124 S. W. 107.

There is another question the writer believes requires notice. The state, over objection, introduced evidence that the wife of appellant had intercourse with other parties in Tom Green county, some two or three years before they moved to Abilene in Taylor county. This testimony came from her, but she swore, also, that of this appellant was not aware. She stated he was somewhat jealous of her on account of the attentions he observed paid her by other men, and this created some family friction, which she ended by her persuading her husband there was nothing wrong about it, and she always succeeded in accomplishing this. After they left that section and went to Taylor county, for something like 15 months she did not have intercourse with men, but began it again, and it was one or more of the Abilene transactions which was used by the state as a predicate for this prosecution. The writer is of opinion that the testimony with reference to her previous life in Tom Oreen county should not have been introduced against the defendant. It is not shown that he was in any way connected with her prostitution in that section, and what testimony there is in the record rather excludes that idea. This could not have entered into the case so far as he was concerned. He could not have procured a thing about which he was ignorant; and she testified that she had to some extent at least reformed, and had ceased having intercourse with men for quite a while after their removal to Abilene. The writer is of opinion that the testimony, under the circumstances in the case, should have been confined to the transactions in Taylor county, both as to predicate for appellant’s conviction and as to the character of the woman as being a prostitute. They did not undertake to prove her reputation, however, in Tom Green county, but only proved her individual acts, which were un- • known to appellant.

As the writer understands the law, the fact that she was a prostitute under this statute could be shown, and this by reason of the statute; but the state must show that the woman has been prostituted by the panderer, or in -some way brought to live a life of ill fame and prostitution by him. It is not enough for the appellant to be Jealous of his wife, or even know that she is a prostitute. The statute requires more than this at' the hands of the accused. He must be in some way guilty of inducing the woman to lead a life of shame in some of the means provided by the statute. Knowledge and want of action on his part is not sufficient. He must do something to violate the terms of the statute; else he would not be a panderer. The mere knowledge that the woman is a prostitute will not constitute the accused a panderer. He must do something, connect himself in some way, with the prostitute, to induce her to act. The majority of this court believe the above last-stated matters in regard to Mrs. Briscoe’s acts in Tom Green county were properly admitted.

The judgment is reversed, and the cause remanded.
      <S&wkey;For other eases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: MORROW, J.

text:
    ROBINSON v. STATE.
    (No. 4516.)
    (Court of Criminal Appeals of Texas.
    June 6, 1917.)
    Intoxicating Liquors <&wkey;223 (6) — Criminad Prosecution — Proof.
    Under Pen. Code 1911, arts. 589, 591, defining pursuit of occupation of selling intoxicating liquors, where indictment alleges making of a sale to each of two named persons within three years next preceding its filing a charge that, though one of the sales alleged is not proven, defendant may be convicted if he made two other sales within said three year period, is erroneous, since the making of the sales must be proven as alleged in the indictment.
    [Ed. Note. — For other cases, see Intoxicating Liquors, Cent. Dig. § 274.]
    Appeal from District Court, Taylor County; Joe Burkett, Judge.
    Clarence Robinson was convicted of the offense of pursuing occupation of selling liquors in a prohibited district, and appeals.
    Reversed.
    Harry Tom King, of Abilene, for appellant. E. B. Hendricks, Asst. Atty. Gen., for the State.
   MORROW, J.

This prosecution was for the offense of pursuing the occupation of selling intoxicating liquors in a prohibited district.

The subdivisions of the statute covering the offense are articles 589 and 591, P. C., as follows:

“If any person shall engage in or pursue the occupation or business of selling intoxicating liquors, except as permitted by law, in any county, justice precinct, city, .town or subdivision of a county, in which the sale of intoxicating liquor has been or shall hereafter be prohibited under the laws of this state, he or she shall be punished by confinement in the penitentiary not less than two nor more than five years.” Article 589.
“In order to constitute the engaging in or pursuing the occupation or business of selling intoxicating'liquors, within the meaning of this law, it shall be necessary for the state to prove in all prosecutions hereunder, that the defendant made at least two sales of intoxicating liquor within three years next preceding the filing of the indictment.” Article 591.

The indictment charged the offense and that one sale was made to I-I. H. Alexander and one to J. W. Tucker. There was evidence tending to prove that appellant had made one sale of intoxicating liquor to- each of the parties named, but no evidence of more than one sale to either of them, and no evidence of sales to any other party named or described in the evidence. With reference to the sale to Alexander there was an issue of fact as to whether there was a sale made to Alexander by appellant, or whether appellant acting as the agent of Alexander procured the liquor for him.

The court, recognizing that there was such an issue for the jury submitted it in the following language:

“You are instructed that, if you believe from the evidence that the defendant acted as the agent of H. H. Alexander, and not for himself, and not as the agent of the seller in the sale or delivery of said whisky, if you find said sale was made, and you further find and believe from the evidence that the defendant did not make at least two other and different sales within three years next preceding February 15, 1917, the elate of the filing of the indictment herein, and you further find from the evidence that the defendant did not engage in and pursue the occupation and business of selling intoxicating liquor in territory prohibited by law, as herein-before defined, you will acquit the defendant.
“But, on the other hand, if you do believe from the evidence beyond a reasonable doubt that the defendant did not act as the agent of H. H. Alexander in the sale and delivery of the whisky delivered to H. H. Alexander, if any were sold and delivered, but was acting for himself, or for the seller, and if you further believe from the evidence beyond a reasonable doubt that the defendant made other and different sales of intoxicating liquor within three years next preceding February 15, 19-17, and you further believe from the evidence beyond a reasonable doubt that the defendant was engaging in and pursuing the occupation and business of selling intoxicating liquor in territory, prohibited by law, as heretofore defined, you will find the defendant guilty and assess his punishment as hereinabove set out.”

. It was essential that the indictment allege the making of two sales and name the parties to whom they were made. It was also required that this be proved. Mizell v. State, 59 Tex. Cr. R. 226, 128 S. W. 125; Fitch v. State, 58 Tex. Cr. R. 366, 127 S. W. 1040; Rhodes v. State, 75 Tex. Cr. R. 659, 172 S. W. 252; Jones v. State, 76 Tex. Cr. R. 239, 174 S. W. 349; and numerous other decisions. Proof of one of the sales mentioned would not be sufficient. Leonard v. State, 68 Tex. Cr. R. 549, 152 S. W. 632. Proof that appellant acted as the agent of Alexander in procuring the liquor from another would not show a sale by the appellant to Alexander, and it was incumbent on the court to so advise the jury. Campbell v. State, 37 Tex. Cr. R. 572, 40 S. W. 282; Driver v. State, 48 Tex. Cr. R. 20, 85 S. W. 1056; Evans v. State, 55 Tex. Cr. R. 450, 117 S. W. 167. The charge given was subject to the construction that, even though no sale was proved to Alexander by appellant, he might nevertheless be guilty. It tells the jury that, if appellant acted as the agent of Alexander, and not for himself, and not as the agent of the seller, he might nevertheless be guilty if the jury should find that he had made two other sales within the three-year period charged in the indictment. There was no evidence of other specific sales; but if there had been such evidence, the court should nevertheless have instructed the jury in such manner that they would have clearly understood that it was essential to a conviction that the state prove that appellant made the sale toi Alexander. The failure of the court to do so was excepted to and exceptions were reserved to the refusal of special charges covering the subject. The refusal of the court to correct this error requires a reversal of the case.

We find no other errors in matters that are likely to -arise upon another trial.

The judgment of the lower court is reversed, and the cause remanded.
      i&wkey;For other eases see same topic ana KEY-NUMBER in all Key-Numbered Digests and Indexes


author: HIGHTOWER, C. J.

text:
    SOUTHERN SURETY CO. et al. v. MOORE.
    (No. 207.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 8, 1917.)
    Master and Servant <®=^388 — Workmen’s Compensation Aot —Who may Recover — Beneficiaries.
    Under the Workmen’s Compensation and Employers’ Liability Act (Acts 33d Leg. c. 179), only the dependent and widowed mother of deceased minor servant was entitled to compensation, where the only other relatives were minor brothers and sisters.
    Appeal from Jefferson County Court; D. P. Wheat, Judge.
    Action by H. J. Moore, for the benefit of his wife and others, against the Southern Surety Company and others. Judgment for plaintiff in part, and defendants appeal, and plaintiff appeals from so much of the judgment as is adverse to him.
    Affirmed.
    Crook, Lord, Lawhon & Ney, of Beaumont, for appellants. Andrews, Streetman, Burns & Logue, of Houston, for appellee.
   HIGHTOWER, C. J.

This suit was brought by the plaintiff, H. J. Moore, for the benefit of his wife, Carmelite Moore, and also as next friend, for the benefit of Kelley Smith, Mamie Smith, James Smith, Corinne Moore, Joseph Moore, and Jack Moore, who are minors, against Southwestern lSurety Insurance Company and Southern Surety Company, as defendants, to recover a money judgment.

Mrs. Carmelite Moore is the surviving mother, and the above-named minors are the surviving brothers and sisters of Kimmey P. Smith, deceased, who at the time of his decease, on May 10, 1915, was 19 years of age.

The defendants are liability insurance companies doing business in this state in accordance with the act of the Thirty-Third Legislature (chapter 179), 'known as .the Workmen’s Compensation Act and Employers’ Liability Act, and are authorized to insure payment of compensation to employés who may be injured or killed, a® mentioned and provided by said act.

At the time of his death the said Kimmey Smith was an employé of one E. E. Hartford, who had theretofore taken out a policy of insurance covering his employés, including said deceased, with the first-named defendant, which policy was in force and effect at the date of the death of said Kimmey Smith.

The deceased met his death by accident, while engaged in the discharge of the duties of his employment, and after his death the plaintiff duly complied with all the provisions of said policy, and with the provisions of said act, with the view and for the purpose of collecting the amount due, under the terms of said policy, to the beneficiaries of deceased, as provided by said policy and by said act. Kimmey Smith at the time of his death was unmarried, and his mother and the minor brothers and sisters above named are his nearest of kin, his father having died some time prior. Kimmey Smith was receiving as compensation at the time of his death $9 per week.

Plaintiff claimed in his petition that the mother and brothers and sisters of Kimmey Smith were all entitled to share in the amount due under said policy and the said act of the Legislature, and were beneficiaries of the deceased, Kimmey Smith, as provided and contemplated by said act.

The answers of defendants consisted of a general demurrer and general denial.

The cause was tried before the court without a jury, and judgment was rendered in favor of plaintiff for the benefit of his wife, Carmelite Moore, surviving mother of the deceased, Kimmey Smith, for the sum of $372.60, that amount being 60 per cent, of the weekly earnings of deceased at the time of trial, with interest due up to that time. The trial court denied plaintiff any recovery in behalf of said minors, brothers, and sisters of deceased, on the ground, as stated in his conclusions of law, that the deceased being a minor at the time of his death, and contributing all his earnings to his mother, she alone was entitled to recover.

The defendant Southern Surety Company, while it had no connection with the policy in question originally, assumed all the liabilities of its codefendant subsequent to the issuance of the policy, which explains its connection with this suit.

From the judgment in favor of said surviving mother, both defendants have appealed, and from that part of the judgment against the brothers and sisters plaintiff, in Ms capacity as their next friend, has appealed, and both parties assign errors.

Without again discussing the act of the Thirty-Third Legislature of this state, known as the Workmen’s Compensation Act and Employers’ Liability Act, we have concluded that the judgment of the trial court in this case was correct in holding that only the mother of deceased was entitled to recover in this cause, and that said brothers and sisters were not entitled to recover. We infer from the language used by the trial court in his conclusions of law that liability to the sisters and brothers was denied by the court on the ground that the deceased was a minor, and that his earnings belonged to his mother. This court holds, however, that a recovery was properly denied the brothers and sisters of the deceased, for the reason that under proper construction of the act above mentioned said brothers and sisters were not beneficiaries of deceased, and therefore were not entitled to recover against defendants in any event. Our reasons for this conclusion will be found in the opinion of this court in the case of P. G. Vaughan et al., Plaintiffs in Error, v. Southwestern Surety Insurance Company et al., Defendants in Error, 195 S. W. 261, decided at the present term, but not yet officially reported. We do not deem it necessary to here add anything further than was said by this court in the case above referred to.

All assignments of error on both sides will therefore be overruled, and the judgment of the lower court will be affirmed; and it is so ordered.
      ©ssEor other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes


author: DAYIS, J.

text:
    HOUSTON OIL CO. OF TEXAS v. MILLER.
    (No. 154.)
    (Court of Civil Appeals of Texas. Beaumont.
    May 30, 1917.
    Rehearing Denied June 13, 1917.)
    1.. Appeal and Eeeoe <&wkey;882(8) — Wno max Allege Eeeoe — Admissibility oe Evidence.
    Appellant cannot complain that recitals in a surveyor’s field notes were erroneously admitted, where he -read such field notes in evidence, and did not object to the testimony when it was offered.
    [Ed. Note. — For other cases, see Appeal and Error, Cent. Dig. § 3592.]
    2. Appeal and Eeeoe <&wkey;843(2) — Necessity op Decision.
    In trespass to try title, where appellee establishes record title, it is unnecessary to consider his claim of title by adverse possession.
    [Ed. Note — For other eases, see Appeal and Error, Cent. Dig. § 3331.]
    Appeal from District Court, San Augustine County; A. E. Davis, Judge.
    Trespass' to try title by J. H. Miller against the Houston Oil Company of Texas. Judgment for plaintiff, and defendant appeals.
    Affirmed.
    Parker & Kennerly and Fred L. Williams, all of Houston, and H. O. Head, of Sherman, for appellant. Denman & Thomas, of Lufkin, and John F. McLaurin, of San Augustine, for appellee.
   DAYIS, J.

This is a suit in trespass to try title, brought by appellee, .J. H. Miller, against the appellant, Houston Oil Company of Texas, and in which suit, the plaintiff pleaded the three, five, and ten year statutes of limitation, and sued to recover the Green Lane 160-acre pre-emption, located in San Augustine county.

The main question involved in the case is the true location of the Green Lane 160-acre pre-emption, owned by appellee, and the true location of the Gulf, Colorado & Santa Fé section No. 1, owned by appellant; the contention of appellant being that an extension of the south boundary line of the Gulf, Colorado & Santa Fé section No. 1, east of the Francis Hill west line, is the true south boundary line of the Green Lane 160-acre pre-emption survey, and an extension of the most eastern line of the Gulf, Colorado & Santa Fé section No. 1 south forms the true east boundary line of the Green Lane, and that the west boundary line of the Francis Hill survey forms the most eastern boundary line of Gulf, Colorado & Santa Fé section No. 1, and the east boundary line of the Green Lane survey. Opposed to this, the ap-pellee contends that the Green Lane 160-acre pre-emption, as originally located on the ground by the surveyor Roberts in 1855, lacks about 300 varas of reaching the Francis Hill survey on the east, and about 300 or 400 varas of reaching the extension of the south boundary line of the Gulf, Colorado & Santa Fé section No. 1 on the south. The following plat will assist in showing more clearly the contentions of the parties:

Corners marked “X” mark the location of the Green Lane survey, as claimed by ap-pellee; and corners marked “O” mark the location of the Green Lane survey, as claimed by appellant. It will be noticed that the north line of the Green Lane survey, as claimed by appellant, runs through both fields of appellee, and through his house; there being a little more improvement north of this line than south of it.

The Gulf, Colorado & Santa Fé section No. 1 is a 640-acre survey, and was patented on May 16, 1882. This patent calls to begin at the northwest corner of the Francis Hill survey, and then calls to run south, 1,420 varas to the northeast corner of a survey of 160 acres made for Green Lane, and at this point calls for a stake, and a red oak, marked X, bearing south 10 degrees east 9 varas; thence west with said Lane’s north boundary line 950 varas to his northwest corner on two pines, both marked X; thence south with some 950 varas to his southwest corner on A. D. Bateman’s north boundary line, a post oak marked X bears east 3 varas.

From this much of the description in this patent to the Gulf, Colorado & Santa Fé section No. 1 it is plain that at the time of its issuance it was believed and understood that the Gulf, Colorado & Santa Fé section No. 1 and the Green Lane 160-acre pre-emption joined the Francis Hill survey on the west and the Bateman survey on the south.

From a careful examination of the record, however, we find that the evidence clearly shows that there are three lines running north and south, east of the Gulf, Colorado & Santa Fé section No. 1, the most westerly of these three lines being, as shown by a preponderance of the testimony, the east boundary line of the Gulf, Colorado & Santa Fé section No. 1, as actually run on the ground by the surveyor, though the survey- or, mistaking this line for the west line of the Francis Hill survey, erroneously called the beginning corner of the Gulf, Colorado & Santa Fé section No. 1 the northwest corner of the Francis Hill.

Since 1892, when the Green Lane survey was patented, the state issued a patent to 0. O. Goodwin to the strip of land lying east of the Gulf, Colorado & Santa Eé section No. 1, and the Green Lane survey, between these surveys and the Francis Hill survey, and that strip of land lying south of the Green Lane survey between the Green Lane survey and the Bateman survey.

We also think, and the jury so found, that the true location of the Green Lane survey is where appellee claims that it is. The evidence on this question is of some length, a recital of which we do not think necessary for a proper disposal of this case.

It is well established by the evidence that the Green Lane survey was originally made and located bn the ground, where appellee contends that it is, and where Whitton, the surveyor who ran out and made a resurvey of the Green Lane survey on June 9, 1S90, locates it, and made the field notes contained in the patent issued on February 13, 1892. Whitton recites in these field notes that the resurvey, as made by him, of the Green Lane survey, is “the same as surveyed June 11, 1855.” While this statement in the field notes made by the surveyor Whit-ton may not have been admissible, we do not think appellant is in a position to complain; as appellant read in evidence the field notes of the Green Lane survey as made by Whit-ton, which field notes contained the very statement now complained of by appellant as being inadmissible, and which field notes were read in evidence’ by appellant without exception, objection, or reservation. Appellee also introduced in evidence the patent to the Green Lane survey, which contained this statement, and no objection was made to the admissibility of this statement by appellant at that time.

The evidence abundantly supports the finding of the jury to the effect that the Green Lane pre-emption is located as contended by appellee, and that the Roberts survey or location of the Green Lane survey in 1855 and the Whitton resurvey of the Green Lane survey in 1890 are identical, and the Green Lane survey was originally located on the ground as the field notes contained in the patent place it, by both of said surveyors, and that the Gulf, Colorado & Santa Fé section No. 1 is fixed and determined by this location on the ground of the Green Lane survey.

This holding dispenses with the necessity of discussing the questions of limitation presented.

The evidence shows clearly that a short time after the Green Lane survey was run out by the surveyor Roberts in 1855 Green Lane went upon his survey at the point disclosed in the plat, and that he and those claiming through or under him for all these years have lived upon the land and claimed same to the boundaries now claimed by ap-pellee down to the trial.

There being no reversible error pointed out, we are of the opinion that the case should be affirmed; and it is so ordered.

Affirmed.
      <S=For other cases see same topic and KEY-NUMBER in all Key-Numhered Digests and Indexes


author: FLY, C. J.

text:
    CITY OF LAREDO v. FRISHMUTH et al.
    (No. 5867.)
    (Court of Civil Appeals of Texas. San Antonio.
    May 23, 1917.
    Rehearing Denied June 13, 1917.)
    1. MUNICIPAL CORPORATIONS !&wkey;957(3) — TAXES — Validity.
    That portion of Laredo city ordinance of December 22, 1883, levying a tax of 45 cents per $100 violates the constitutional amendment of 1883 (see Acts 18th Leg. p. 133) limiting such taxation to 25 cents per $100.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 2018, 2019.]
    2. Municipal Corporations <&wkey;116 — Ordinances — Repeal.
    Laredo city ordinance of May 19, 1883, providing for payment of bonds by revenue derived from taxation, sale of lots, etc., was not repealed by the unconstitutional ordinance of December 22, 1883, providing that entire amount be raised by a tax levy of 45 cents per $100 in violation of a constitutional amendment limiting such levies to 25 cents per $100.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 268-271.]
    3. Statutes <&wkey;164^-Amendment.
    Where a statutory article consists of several subdivisions, dealing with the same' matter, one or more of such subdivisions may be amended without interfering with other parts of the article.
    [Ed-. Note. — For other cases, see Statutes, Cent. Dig. § 239.]
    4. Municipal Corporations <&wkey;lll(4) — Ordinances — Partial Invalidity.
    Laredo city ordinance of December 22, 1883, is entirely void, since the provision authorizing a tax levy of 45 cents per $100 in violation of the Constitution, limiting such levies to 25 cents per $100, is an inseparable part of the ordinance, all of whose provisions are connected in subject-matter.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 248-251.]
    5. Municipal Corporations <&wkey;864(4) — Indebtedness — Constitutional Provision.
    Where a municipal liability may be paid from cash on hand or a special fund,' no debt is incurred within the Constitution, limiting the tax which may be levied to pay certain municipal debts, since the object of the amendment was merely to prevent exorbitant taxation.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 1832.]
    6. Municipal Corporations &wkey;>920 — Bonds— Mayor’s Authority.
    A mayor authorized to issue municipal bonds was authorized to insert a recital that their issuance was pursuant to a specified ordinance.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. §§ 1930, 1931.]
    7. Municipal Corporations <&wkey;943(l) — Bona Fide Purchasers oe Bonds — Estop-pel.
    Where bona fide purchasers held municipal bonds reciting their issuance under a specified city ordinance recorded in a certain book, etc., the city is estopped from claiming that the bonds were issued under a subsequent ordinance.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig.- § 1972.]

      8. Municipal Corporations <&wkey;1038 — Execution.
    Execution should not be awarded against a municipal corporation on g. judgment secured by holders of municipal bonds.
    [Ed. Note. — For other cases, see Municipal Corporations, Cent. Dig. § 2211.]
    Appeal from District Court, Bexar County; J. F. Mullally, Judge.
    Action by Willard Frishmuth. and others against the City of Laredo. Judgment for plaintiffs, and defendant appeals.
    Affirmed as modified.
    A. Winslow and Paul W. Evans, both of Laredo, for appellant. Harding & Goodwin and Mann & Henry, all of Laredo, for ap-pellees.
   FLY, C. J.

This is a suit instituted by appellees to recover of appellant the sum of $21,000, alleged to be due on 21 bonds for $1,000 each issued by appellant on December 31, 1883, and bearing interest at the rate of 6 per cent, per annum, of which appellees alleged they were innocent purchasers for value before maturity. It was further alleged that the city of Laredo was granted a charter in 1756 by the King of Spain, and that he granted to said city four leagues of land lying partly on the north side of the Rio Grande; that the portion of the land in Texas .contained 10,700 acres, the grant of which was afterwards confirmed by the state of Texas; that a large portion of the 10,700 acres of land has been divided by appellant into lots and blocks, out of which lots have been sold to numerous persons, but that in May, 18S3, it owned, and still owns, a large portion of the lands granted to it, which were of the value of $1,000,000; that since 1883 appellant has sold and received pay for many lots, realizing the sum of $750,000 therefrom ; and that when this suit was instituted appellant still had lands of the value of $125,000. It was further alleged that on May 19, 1883, appellant was duly incorporated under the laws of Texas, and on that date its city council by ordinance provided for the issuance of bonds in the sum of $75,000 by virtue of a vote of the people, of which $40,000 were for1 the erection of a city hall and market house, $20,000 for street improvements, $10,000 for schoolhouses, and $5,000 for a city hospital;, that provision was made in said ordinance for the payment of the bonds and Interest by levying a tax of one-tenth of 1 per cent, on the $100 valuation of the property in said city, and by setting apart the money arising from the sale of lots and blocks of land owned by it, the rents ¿rising from the city hall and market house to be erected, and the fines and forfeitures collected, by the city, which sum was more than sufficient to pay the interest on said bonds and provide for a sinking fund. It was alleged that the bonds were issued on December 31, 1883, being made payable on July 1, 1913, to bearer, and each one reciting that it was issued by. virtue of an ordinance passed by the city of Laredo on May 19,1883, giving the book and page of the minutes of said city; that said bonds were registered by the comptroller of public accounts of the state of Texas,‘such fact being indorsed on each bond; that the bonds were sold in the market, and those involved in this suit were eventually purchased for a valuable consideration before maturity. It was further alleged that the tax provided for in the ordinance had been collected; that $750,000 had been collected from the sale of lots and $600 a month from the rent of the city hall and market, and large sums for fines and forfeitures since 1883; and that all of the bonds had been paid except 33.

It was answered by appellant that the bonds were issued under and by virtue of an ordinance of December 22, 1883, and not by virtue of the ordinance of May 19, 1883; that at the time of issuance the assessed valuation of property in Laredo was $1,345,951; that by the Constitution and laws in force on December 22, 1883, the city of Laredo could not issue bonds except on the basis of a tax of 25 cents on the $100 valuation, which would produce sufficient revenue to pay the interest as it accrued on the bonds and create a sinking fund sufficient to redeem such bonds at their maturity; that such revenue would only be sufficient to form the basis for the issuance of $36,180; and that the portioil of the bonds issued in excess of that amount were invalid. Appellant admitted liability as to 36,18o/¶gjooo of the amount of the 21 bonds.

The cause was heard by the court without a jury, and judgment rendered for appellees for the full sum claimed by them.

There is no statement of facts, and necessarily the findings of fact of the trial judge must be the conclusions of fact of this court. From those findings it appears that on May 19, 1883, an ordinance was passed by the city council of Laredo authorizing the issuance of bonds in the sum of $75,000, in denomination of $1,000, bearing 6 per cent, interest, and due and payable on July 1, 1913. It was provided that the bonds should be styled “city improvement bonds,” $40,000 of them to be issued to erect a city hall and market house, $10,000 to build a schoolhouse, $20,000 to improve the streets, and $5,000 to build a hospital. It was further provided:

“Sec. 7. That for the purpose of securing the payment of the interest due on all 'city improvement bonds,’ and to create a, sinking fund of two per centum thereon, there is hereby specially appropriated and set apart all sums collected from assessments made on the property fronting on the streets so improved: Provided, that any excess over and above the sum required to pay the interest on said twenty thousand dollars and create said sinking fund shall be invested in interest bearing securities as required by law.
“Sec. 8. That there shall be and is hereby levied an annual direct ad valorem tax of one-tenth of one per centnm upon all property real and personal, in the city of Laredo, which tax shall-be assessed and collected in the same manner and at the same time as other taxes, and there is hereby appropriated and set- apart in addition thereto, so much of the following named revenues as may be necessary, viz.: All revenues arising from taxation; all revenues arising from the sale of lots and other lands; all revenues arising from fines and forfeitures imposed and collected by the city; all revenues arising from said city hall and market house and said funds hereby appropriated shall not be diverted nor drawn upon for any purpose, and the city treasurer shall honor no drafts on said funds until the interest and sinking fund is fully provided for.”

In 1883 the taxable values of property in Laredo amounted to $1,345,951.- The bonds were sent to the comptroller of public accounts for registration, and in the early part of 18S4 were sold, appellant receiving par value for them. Each bond gave the number of bonds issued with their value, and each provided that: '

“The payment of the principal and interest due on this bond is secured by a fund appropriated by the city council of Laredo on the 19th day of May, 1883, duly entered of record in the Book of Ordinances on pages 50, 51, 52, and 54, to which reference is made.”

The bonds did not disclose the existence of an ordinance of December 22, 1883, which purported to be an amendment of the ordinance of May 19, 1883. The only marked differences between the last ordinance and first were that -in section 5 the form of the bonds was not prescribed, and that sections 7 and 8 are omitted, and section 6, in lieu thereof, is as follows:

“Sec. 6. That for the purpose of securing the interest due on said bonds, and to create a sinking fund of two per cent, to pay the principal thereof there shall be levied, assessed and collected an annual direct ad valorem tax of forty-five (45) cents on each one hundred (100) dollars, in value upon all property, real and personal in the city of Laredo, which tax shall be assessed and collected at the same time and in the same manner as other taxes and all moneys arising from said tax is hereby appropriated and set apart for the payment of the interest and principal of said bonds.”

It was also provided in the last ordinance that $40,000 of the bonds should be used to build a city hall and city market, and $35,000 for street improvements. The taxes were levied, rents received, and fines and forfeitures from 1884 to present time were collected. Many lots were sold and purchase money collected, and the appellant still owns a number of blocks of land of the value of $30,000, and appellant has $6,000 in cash to the credit of the bond fund. On July 2, 1913, appellant, sought to issue refunding bonds for the bonds of 1883 remaining unpaid, but the bonds were disapproved by the Attorney General of Texas, on the ground that the original issue of bonds in 18S3 was invalid. Since 1883 appellant has received from rents from the market house and stands on the market plaza the sum of $165,744.75, from fines and forfeitures $19,946.22, and from the sale of land $28,981, amounting in the aggregate to the sum of $214,871.97. None of that sum has been paid on the bonds of 1883.

When the ordinance of May 19, 1883, was passed, there was a constitutional provision in effect that limited the amount of taxation by cities for the erection- of public buildings to 50 cents on the $100 (Const. 1876, art. 8, § 9), but on September 25, 1S83 (see Acts 18th Leg. p. 133), an amendment to the Constitution was adopted which limited the tax for public improvements to 25 cents on the $100 valuation of property for any one year. It is therefore the contention of appellant that the ordinance of May 19, 1883, was not in effect when the bonds were issued and put on the market, but had in effect been repealed by the ordinance of December 22,1883, which omitted all reference to rents, purchase money of lots, and fines and forfeitures, and provided for taxation at the rate of 45 cents on the $100 of the property valuation of 1883.

The ordinance of December 22, 1883, purports to amend the ordinance of May 19,1883, and there is nothing in it indicating that there was any intention or desire to repeal the former ordinance. The only reason for its passage that could plausibly be advanced was the desire to increase the rate of taxation and to make the whole of the $35,000 available for street improvements. No disposition was shown in the last ordinance to repeal the former ordinance or to in any manner interfere with any of its provisions except in the particulars mentioned.

The ordinance of December 22, 1883, was enacted after the constitutional amendment of 1883 had gone into effect, and clearly was in violation of its terms; for a rate of taxation largely in excess of the amount permitted by cities for public buildings, street, sewer, and other permanent improvements was provided for in the ordinance. Being invalid because unconstitutional, that clause, if it did not invalidate the whole ordinance, did not, directly or by implication, repeal that part of the ordinance relating to the raising of revenue to meet the interest and furnish a sinking fund for the payment of the bonds. That section of the last ordinance being invalid, the original ordinance would remain in full force, except so far as affected by those valid sections remaining in the last ordinance, if it was affected at all by it.

Even in the case of a legislative act, where an article of the statutes consists of numbered sections or subdivisions, each section dealing with the same matter, one or more of such sections may be amended, without interfering with other parts of the act. Lewis’ Sutherland, Stat. Const. §§ 236, 237, and cases cited in footnotes. . ■

We have discussed the last ordinance as though that portion in regard to taxation might be invalid, and yet the other provisions be valid, but we are of opinion that all the provisions are connected in subject-matter, depend on eacli other, and were designed to operate for one and the same purpose, and, if not, that each provision is so dependent upon the other that it would be unreasonable to presume that one would have been passed without the other. The test is: Are the parts of the ordinance so essentially and inseparably connected with each other that they cannot be separated? And, if so, one part being void renders the whole void. Lewis’ Sutherland, Stat. Const. §§ 296, 297, and authorities cited; Zwernemann v. Von Rosenberg, 76 Tex. 522, 13 S. W. 485; Kimbrough v. Barnett, 93 Tex. 301, 55 S. W. 120; Spence v. Fenchler (Sup.) 180 S. W. 597. In this case, if the provision for the taxes is eliminated, no valid reason can be given for the passage of the ordinance, and every part of the ordinance is necessary to its existence. It will not be contended that an invalid ordinance could amend or repeal another ordinance. Water Co. v. Cleburne, 1 Tex. Civ. App. 580, 21 S. W. 393.

The circumstances connected with the issuance of the bonds show that there was no intention to destroy or impair the ordinance of May 19, 1S83, for when the bonds were afterwards issued no reference to the last ordinance was made in the bonds, but it was declared in each one of them that they were issued by virtue of the ordinance of May 19, 1883. The identical form of bond provided for in that ordinance was the one in which the bonds were sold.

It is not claimed that the ordinance of May 19, 1883, is invalid, the contention being that the bonds, in spite of their recital to the contrary, were issued under the ordinance of December 22, 1883, and that such ordinance was invalid so far as over half of the bonds were concerned. That position might be tenable had the ordinance only provided for 25 cents on the $100, but cannot be sustained as to an attempt to levy a tax of 45 cents a hundred directly in the face of the Constitution.

The ordinance of May 19, 1883, did not attempt to provide for the interest and sinking fund of a $75,000 i$sue of bonds by taxation, but recognized the inadequacy of a tax rate of 25 cents on the $100 to meet the interest and sinking fund and made other provisions out of other means to meet the demand. At the time it was enacted the city could have provided for a tax of 50 cents, but chose to secure the bonds in other ways which it had the right to do.

It is the rule, well sustained by authority, that contracts may be made without incurring a debt within, the meaning of the Constitution when the municipal corporation has cash in the treasury with which to meet the liabilities, or when the debt is made payable out of a special fund raised or to be raised. Galveston v. Heard, 54 Tex. 420; Dillon, Mun. Corp. §§ 197, 198; State v. Neosho, 203 Mo. 40, 101 S. W. 99. The fact that such special fund is not in existence at the time when the bonds were issued does not make expenditures incurred on the credit of the fund and only payable therefrom an indebtedness in the purview of the Constitution. State v. Whatcom County, 42 Wash. 521, 85 Pac. 256; McNeal v. City of Waco, 89 Tex. 83, 33 S. W. 322. As said in the last-named case:

“These constitutional provisions were intended as restraints upon the power of municipal corporations to contract that class of pecuniary liabilities not to be satisfied out of the current revenues or other funds within their control lawfully applicable thereto, and which would therefore at the date of the contract be an unprovided for liability and properly included within the * * * meaning of the word ‘debt.’ They have no application, however, to that class of pecuniary obligations in good faith intended to be and lawfully payable out of either the current revenues for the year of the contract or any other fund within the immediate control of the corporation.”

The intent of the Constitution is to protect the citizenship of the municipality, from exorbitant taxes, and that was attained in this case when only the constitutional tax was levied. The fund provided by the ordinance to come out of rents, fines, forfeitures, and sales of land was more than sufficient to pay the interest and create a sinking fund for $39,000 of the bonds, the amount unprovided for by taxation.

Each of the bonds in question recited:

“The payment of the principal and interest of this bond is secured by a fund appropriated by the city council of Laredo on the 19th day of May, 1883, duly entered of record in Book of Ordinances on pages 50, 51, 52, and 54, to which reference is made.”

An inspection of that ordinance showed the purchasers of the bonds that ample provision had been made for the payment of the bonds. The mayor will be deemed to have had the authority to make the recital in the bonds. It is sufficient if the duty, as in this instance, is placed upon a municipal officer to issue the bonds. Knox County v. Aspinwall, 62 U. S. (21 How.) 539, 16 L. Ed. 208; Dillon, Mun. Corp. § 927. The purchasers of the bonds were justified in acting upon the. recitals in the bonds, and the city is bound by them.

In the case of Nolan County v. State, 83 Tex. 182, 17 S. W. 823, the Supreme Court said:

“If a purchaser were bound to inquire into the existence of the facts which empowered the court to issue bonds to build a courthouse, and to know that the county had no courthouse, in view of the recitals upon the face of the obligations, he was bound to look no further.”

In the case of Ball, Hutchins & Co. v. Presidio County, 88 Tex. 60, 29 S. W. 1042, the court said:

“It results from what has been said above that ‘the law requires’ a dealer in county bonds to know the provisions of the act of the Legislature and the order of the county commissioners court under and by virtue of which such bonds were issued, whether referred to on the face of the bonds or not.”

In the case of Mitchell County v. Bant, 91 Tex. 361, 43 S. W. 880, the court held that it was the duty of the purchaser of bonds to examine the orders under which the bonds were issued. The court said:

“Having failed to take the precaution to examine the order upon which the bonds were based, the purchaser was guilty of negligence, and must be charged with notice of that which could have been learned in the exercise of ordinary care.”

In neither of the three cases last cited was there any recital as to a certain order by virtue of which the bonds were issued, except in the case of Nolan County v. State, and in that case it was held that the purchaser could rely upon the recitals.

It may be that, if the ordinance under which the bonds were issued had not been definitely pointed out and identified by reference to the ordinance hook of the city, the purchaser would have been charged with the duty of investigating the ordinances to ascertain the authority for issuance of the bonds, but in the case of the bonds involved herein the purchasers were lulled into security as to the ordinances by the representations that the bonds were issued by virtue of a certain ordinance found on certain pages of a certain book belonging to the city. The purchasers were authorized to act under the statement made in the bonds, and the city is estopped to deny the recital. It may have been entertaining, if not instructive, to have perused the ordinances and minutes of appellant, but it was not incumbent upon the purchasers of the bonds, under the circumstances to study such city records in order to unearth some ordinance framed prior or subsequent to the ordinance under which appellant represented -that the bonds were issued. As said by the Supreme Court in City of Tyler v. Association, 99 Tex. 6, 86 S. W. 750:

“A purchaser of the bonds of a city must take notice of the requirements of our Constitution and the laws of the state, and 'must see that the city has complied with such requirements. As a city in this state cannot issue funding bonds except by an ordinance duly passed, * * * a purchaser of such bonds must look to the ordinance to see that it has been regularly passed, and that it confers authority for the issuance of the bonds offered for sale. But such purchaser is not charged with notice of other parts of the record not connected with the bonds offered for sale.”

In support of the last proposition Mitchell County v. Bank, herein named, was cited, in which it was held that only the order under which the bonds were issued should be consulted. That ease also held that a city would be estopped to deny recitals of the ordinance and the bonds, when the latter had come into the hands of innocent purchasers. County of Presidio v. Bank, 20 Tex. Civ. App. 511, 44 S. W. 1069; Peck v. City of Hempstead, 27 Tex. Civ. App. 80, 65 S. W. 653.

In the case of Evansville v. Dennett, 161 U. S. 434, 16 Sup. Ct. 613, 40 L. Ed. 760, the Supreme Court, we think, clearly states the law applicable to a case like this as to recitals:

“As therefore the recitals in the bonds import compliance with the city’s charter, purchasers for value, having no notice of the nonperformance of the conditions precedent, were not bound to go behind the statute conferring the power to subscribe, and to ascertain, by an examination of the ordinances and records of the city council, whether those conditions had, in fact, been performed. With such recitals before them, they had the right to assume that the circumstances existed which authorized the city to exercise the authority given by the Legislature.”

There are numerous authorities to the effect that recitals in bonds may, under certain circumstances, estop a municipality from defending against them on the ground of their invalidity. Dillon, Mun. Corp. §§ 923, 924, and authorities cited. The matter is thus summed up by Judge Dillon from the authorities discussed by him:

“The fact that a limitation of indebtedness or other requirement is contained in a Constitution does not of itself preclude the application of the doctrine of estoppel. Under proper recitals a municipality may be estopped from taking advantage of conditions precedent or constitutional limitations upon power as effectually as it can be from taking advantage of similar conditions or limitations contained in statutes. There is no difference in this respect between the organic and the statute law, unless possibly, in respect of the effect of the assessment roll which is prescribed in the Constitution itself as the test or measure of the debt limit powers of the municipality.”

The proposition that purchasers of the bonds should have read the record of ordinances to ascertain whether the ordinance recited in the bonds had been altered or repealed cannot be entertained for a moment. Appellees had the right to rely on the assurances of the appellant that the bonds had been issued under a certain ordinance, and it cannot be heard to insist that they should have doubted the recitals of the bond and have made inquiry as to the repeal or alteration of the ordinance. The purchasers were under no obligation to go further than the ordinance referred to, and after the money has been obtained by the city and used impermanent improvements, occupied and employed by the city, it is, in equity and good conscience, estopped from setting up the plea that it had in a subsequent ordinance repealed or amended the ordinance which it had represented was in full force when the bonds were sold. The facts of this case bring it clearly within the rules of estoppel, and demand enforcement of them. The municipality having received full benefit from the bonds, and no principle of law or public policy being infringed by payment of the bonds, appellant should be compelled to pay the debt. Winston v. City of Ft. Worth, 47 S. W. 740.

The record indicates no desire upon the part of the city of Laredo to repudiate its obligations, or evade payment of its debts, but, on the other hand, it appears that it has sought to refund its indebtedness on the bonds, and even went soi far as to seek a mandamus to compel the Attorney General of Texas to approve suela refunding bonds. The application for mandamus was refused by the Supreme Court on the ground that provision had been made for the payment of only about $36,000 of the original bonds, and that therefore only that part of the original bonds could be refunded. City of Laredo v. Looney (Sup.) 185 S. W. 556. That opinion from the standpoint of the Supreme Court, and with the facts before it, is doubtless correct, but we think that it is apparent that the Supreme Court was acting under the impression that the bonds were issued under the ordinance of December 22, 1883. One evidence of this is that it is stated that the bonds were issued “for street improvement, city hall and market house purposes,” which is what the December ordinance shows, while the one of May 19, 1883, shows that they were issued for city hall and market house, street improvement, hospital, and schoolhouse purposes. Again it is stated that the bonds were issued' under an ordinance passed at a time when the constitutional amendment was in force. The amendment was not in force in May, 1883, but went into effect on September 25, 1883. The provisions of the ordinance of May 19, 1883, were given no effect, and doubtless the court was not made cognizant of them; for it is held that the whole of the bonds was to be paid by taxation, which is not true under the first ordinance. Undoubtedly, as stated by Chief Justice Phillips: “The purpose of the constitutional provision is to prevent such taxation” — that is, for more than 25 cents on the $100 valuation of property. But when the ordinance of May 19, 1883, was passed there was no such provision, and, if there had been, the ordinance made ample provisions for the payment of principal and interest of the bonds issued thereunder.

The record in the Looney Case, in the Supreme Court, shows that the city of Laredo, in its application for mandamus, alleged that the bonds were issued under the ordinance of December 22, 1883, and no reference was made in the pleading to the ordinance of May 19, 1883. Of course, the question of estoppel was not raised in that case. In the Looney Case the brief of the city of Laredo raised but one question, and that was that, the city having voluntarily paid off 44 of the 75 bonds, the tax would pay the balance. No mention is made of the ordinance of May 19, 1883. In the briefs of the Attorney General it was assumed that the bonds were issued by virtue of the ordinance of December 22, 1883. The questions herein involved were not passéd upon by the Supreme Court.

Execution should not have been awarded against appellant, and doubtless that error in the judgment would have been corrected if it had been called to the attention of the court. This was not done, and the correction of the error by this court will not entail the imposition of costs of this appeal on appellees.

With the elimination of the provision for execution against appellant, the judgment will be affirmed.
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