author: SHRIVER, Presiding Judge. TODD, Judge,

text:
    The VANDERBILT UNIVERSITY, Plaintiff-Appellee, v. Glenn A. FERGUSON, Trustee for Metropolitan Government of Nashville and Davidson County, Tennessee, Defendant-Appellant.
    Court of Appeals of Tennessee, Middle Section.
    Oct. 29, 1976.
    Certiorari Denied by Supreme Court March 28, 1977.
    Rehearing Denied by Supreme Court April 25, 1977.

      W. W. Berry, Bass, Berry & Sims, Nashville, for plaintiff-appellee.
    Donald L. Corlew, Dept, of Law of the Metropolitan Government of Nashville and Davidson County, Nashville, for defendant-appellant.
   OPINION

SHRIVER, Presiding Judge.

—The Case—

This case involves the tax exempt status for the year 1974 of certain real property owned by plaintiff and used by it during 1974 to provide parking space for the faculty and staff of the Vanderbilt Medical Center. The property in question is located on Highland Avenue and Dixie Place in Nashville, Tennessee, near the Vanderbilt Medical Center and does not include adjacent property owned by Vanderbilt which is used for public parking and which is not claimed to be exempt from ad valorem taxation.

On receipt of notice from the Tax Assessor that the property involved here was not exempt from taxation, plaintiff, on April 30, 1975, paid taxes on the property in the amount of $5,861.70 under protest and filed this suit to recover same.

The case was heard by Honorable Ben H. Cantrell, Chancellor, Part I, Chancery Court of Davidson County, on January 19, 1976 and resulted in a Memorandum Opinion and decree holding that the properties involved here were exempt from ad valorem taxation by the Metropolitan Government of Nashville and Davidson County, and that plaintiff is entitled to recover the taxes paid under protest, with interest thereon.

From said decree, defendant appealed and has assigned errors.

—The Pleadings and Proceedings Below—

The original complaint was filed on May 28, 1975 wherein it is averred that plaintiff is a non-profit educational corporation organized and existing under the laws of Tennessee; that defendant, Glenn A. Ferguson, is sued in his official capacity as Trustee for the Metropolitan Government of Nashville and Davidson County, Tennessee, in accordance with Sections 67-2302 to 67-2313, inclusive, of the Tennessee Code Annotated.

It is further averred that plaintiff is a non-profit educational institution, generally known as Vanderbilt University, and that in its operation as an educational institution it is necessary for it to own and operate extensive real property with improvements, and that the property involved in this suit is owned and used exclusively for educational purposes and is, therefore, exempt from ad valorem taxation. It is further averred that plaintiff operates parking lots for its students, faculty and staff which is a necessary part of its operation as a non-profit institution.

It is averred that defendant has heretofore recognized plaintiff’s right to an exemption from ad valorem taxation for parking lots used by plaintiff’s students and it is averred that the furnishing of parking lots for its faculty and staff is as necessary to its operation as an educational institution as is the furnishing of parking lots for its students.

The prayers of the complaint are:

(1) For process;

(2) For recovery of the sum of $5,861.70, with interest from the date of payment, April 30, 1975;

(3) For recovery of costs; and,

(4) For general relief.

Defendant moved the Court to dismiss the complaint on the ground that plaintiff had failed to exhaust its statutory remedies as set forth in T.C.A. § 67-513(c), which motion was overruled.

The answer of defendant puts at issue the questions hereinabove indicated.

—The Facts—

There is very little dispute as to the essential facts involved in this suit. There is no dispute as to the fact that Vanderbilt University is an educational institution within the provisions of Article II, Section 28 of the Constitution of Tennessee and Section 67-513, T.C.A.

The foregoing article of the Constitution provides that all property, real, personal or mixed, shall be subject to taxation, but the Legislature may except such as may be held by the State, by Counties, Cities or Towns, and used exclusively for public or corporation purposes, “and such as may be held and used for purposes purely religious, charitable, scientific, literary or educational

Article 11, Section 12 of the Constitution enjoins the General Assembly to cherish literature and science, since knowledge, learning and virtue are essential to the preservation of Republican institutions.

Section 67-513, T.C.A., is, in pertinent part, as follows:

“67-513. Religious, charitable, scientific or educational institutions.—
(a) There shall be exempt from property taxation, the real and personal property owned by any religious, charitable, scientific or educational institution which is occupied and used by such institution or its officers purely and exclusively for carrying out thereupon one or more of the purposes for which said institution was created or exists . . .”

DR. GEORGE KALUDIS, Vice-Chancellor for Operations and Physical Planning of Vanderbilt University, was called and testified that, among his duties was included the physical plant, planning for parking and transportation on the campus handled by departments that report to him; that he had the authority to assign University property for parking purposes and that he was familiar with the parking provided by the University in 1974.

He was asked to point out on the map made exhibit the areas involved in this litigation.

In answer to the question as to the use of the three lots involved in this suit, he stated:

“These three lots were used for parking for staff of the medical center, hospital of the University. Part of it was for residents and interns. A large part was used for the night shift nurses for the hospital, where we reserved a lot so that they could have parking when they came in for their shift. And then part of it was also used for the general staff parking for the hospital. But all is related to staff personnel in the University Medical Center.” [Tr. pps. 28-29]

He was asked why these lots were made available to the persons just named. He answered:

“Well, for several reasons, Mr. Berry. First of all we are required by Metro zoning to provide certain number of off-street parking for students and faculty and staff, and we have to comply with that. And, secondly, there are no other parking — just practically no other parking facilities in the area other than public streets.
“There is, I think, one small lot operated by Peabody College which is up, I believe at the corner of Twenty-First Avenue and Edgehill. I think it has ninety spaces in it, or something. . . . But I believe that’s the only out-and-out commercial facility in the area. And if we were not to provide this off-street parking for our staff, they would have to spread out on the public streets in the area, I assume, and in a radius that would probably go out three or four miles in order to find a place to park to come to work at Vanderbilt University Hospital.
“I might add one other thing, Vanderbilt University Hospital is seven day week, twenty-four hours a day operation, and we have three shifts that operate there. People come in at all hours of the night. One of the reasons we reserved that space for the night nurses, providing security for them, and so forth.” [Tr. pp. 29-30]

In answer to questions concerning Vanderbilt University, he stated that they have approximately seven thousand students, plus additional people who come to the campus for instruction or research, and he listed the eight different schools comprising the University, which included the School of Medicine. He also stated that, in addition to those schools, Vanderbilt operates a hospital. He was asked and answered:

“Q. Is that a charitable hospital, considered to be a charitable hospital?
A. Yes, sir, it is.”

He was asked to describe what was meant by the Vanderbilt Medical Center and, in answer, he stated that the hospital is, in reality, an adjunct of Vanderbilt University School of Medicine; that it is a teaching hospital and is there to support, primarily, the School of Medicine, but also the School of Nursing, as well as the Division of Allied Health Professions which operates on the campus. He further stated:

“And when I use the term, Medical Center, I try to encompass not just the hospital but all the activities engaged in public research and public service that are the missions of Vanderbilt University, and therefore the School of Medicine and these other units I mentioned.”

He was asked what he meant by the term “teaching hospital”, whereupon, he explained that the patients who come in are used to support the instruction of medical students, nursing students, and allied health students as well as graduate medical students such as interns and residents who serve at the hospital. He stated:

“The hospital is the laboratory for the School of Medicine in this instance for in-patient activity.”

There is no evidence in the record to contradict the foregoing testimony offered on behalf of plaintiff.

—Assignments of Error—

There are seven assignments, all of which involve the question whether the properties involved here are tax exempt.

We will first address ourselves to the questions raised by Assignments Nos. 3, 4 and 5. These assignments involve the question of the right of the plaintiff to contest the assessment of the tax by payment under protest and then suing for a refund of said taxes without first appealing to the Metro and State Boards of Equalization.

Assignment No. 3 is to the effect that T.C.A. § 67-513(c) provides the exclusive remedy for obtaining a judicial determination of tax exemptions and it is argued that plaintiff was required to exhaust its administrative remedies by appealing to the local and state Boards of Equalization and obtaining a ruling thereon before appealing by certiorari to the Chancery Court for relief.

Assignment No. 4 charges that the Chancellor misconstrued T.C.A. § 67-2305 in finding that it provided an alternative remedy for plaintiff.

T.C.A. § 67-2305 provides that a person paying the tax, at any time within six months after making said payment, may sue the officer having collected said sum for recovery thereof.

Assignment No. 5 asserts that the Chancellor, in ruling on the tax exemption question, acted contrary to the statutes and Constitution by assuming a function properly delegated to an administrative body, to-wit, the Board of Equalization.

T.C.A. § 67-2303 provides that in all cases where not otherwise provided in which an officer, charged with the collection of revenue due the State, shall institute any proceeding, or take any steps for the collection of the sum alleged or claimed to be due from any citizen, the person against whom the proceeding is taken shall, if he conceives the same to be unjust or illegal, pay the same under protest.

And, T.C.A. § 67-2305 provides that a person paying said revenue may, at any time within six months after making the payment, sue for recovery thereof.

Plaintiff asserts that defendant’s contention that appeal to the State Board of Equalization, as provided in T.C.A. § 67-801, et seq., is the only remedy available to a taxpayer contesting the classification of its property as non-exempt and the assessment of taxes on such property is erroneous because it ignores the fact that the Sections relied on by defendant merely provide one method of contesting the position of the municipality in regard to the tax.

It is argued by counsel for plaintiff that there is nothing in § 67 — 513(c), or elsewhere, that would prevent the taxpayer from pursuing his usual remedy as provided in Sections 67-2303 and 67-2305 by paying the tax under protest and suing in Chancery Court for a refund.

In Fentress County Bank and Union Bank v. Holt, 535 S.W.2d 854 (Tenn.1976), the Court reviewed the remedies available to a taxpayer with regard to contested tax liabilities and, among other things, said:

“We believe that the Rosewood decision is a sound one, and that a taxpayer ought not to be required in all cases to go through boards of equalization or other administrative procedures in order to raise strictly legal issues. He may go through those agencies, of course, without first paying his taxes. He should, however, be permitted access to the courts to raise purely legal questions, but only after he has first paid the taxes under protest.”

In Rosewood, Inc. v. Gardner, 63 Tenn.App. 559, 476 S.W.2d 273, and referred to and approved in Fentress v. Holt, supra, the Court recognized the inherent difference between a case involving the exempt status of an individual or organization and a ease raising the question of fact as to the valuation of property and alleged discrimination. The Court said:

“After a review of the authorities the Chancellor made what we deem to be a proper distinction between this type of complaint pertaining to the right to an exempt status on the one hand, as distinguished from the complaint of the taxpayer that he has been grossly, fraudulently, or intentionally overvalued or discriminated against. In the latter type of complaint, the primary issue is the valuation of the property, and the Board, because of its presumed expertise in valuation, is best qualified to hear and correct any abuse suffered. Whereas, the first type of complaint (assessing exempt property) involves primarily questions of law, with the fact questions being incidental thereto, and renders the court the proper tribunal to hear and correct these abuses which are challenged as void assessments.”

It is also argued by defendant that plaintiff’s suit must fail because it did not make payment under protest before the assessed taxes became delinquent. However, the Courts, in construing T.C.A. § 67-2303, have previously held that a tax payment, in order to be involuntary and under duress, must, in fact, be delinquent.

In Basket & Box Co. v. Lauderdale Co., 146 Tenn. 413, 241 S.W. 99 (1922), the Court laid down the proposition that taxes paid before they become delinquent are not paid under duress and, therefore, may not be recovered as having been paid under protest.

Most recent authority would indicate it may not now be necessary to wait until after the tax becomes delinquent before making payment under protest and suing for recovery. Nevertheless, we find no authority for the proposition that payment under protest and suit for recovery cannot be made after the tax becomes delinquent.

The contention that plaintiff is precluded from bringing suit because it failed to make application for tax exemption before March, 1975,' must be rejected since T.C.A. § 67-513(b) provides that such application might not be made before April 1, 1975, and we find that plaintiff came within the requirements of the authorities in this respect.

It results that Assignments Nos. 3, 4 and 5 are overruled.

Assignments Nos. 1, 2, 6 and 7 involve the question whether the properties involved here are tax exempt.

Assignment No. 1 charges error in holding that the parking lots were being used for the educational purposes of the plaintiff.

Assignment No. 2 states that the Chancellor misinterpreted the holding in the case of City of Nashville v. State Board of Equalization, 210 Tenn. 587, 360 S.W.2d 458 (1962).

Assignment No. 6 states that the plaintiff failed to adduce convincing proof as to the-use of the parking lots in question on January 1, 1974.

The testimony of the Vice-Chancellor of Vanderbilt, hereinbefore referred to and quoted from and which was not contradicted by any other testimony in the record, furnishes ample proof as to the use of the parking lots in question on January 1,1974; hence, Assignment No. 6 is overruled.

Assignment No. 7 charges error on the part of the Chancellor in relying on certain authority from other jurisdictions.

The record does not support this assignment in that the Chancellor merely cited the authority in question as part of the authority relied on by him and, certainly, he cannot be held in error for citing and considering any authority that is pertinent and material to the question involved.

Assignment No. 7 is, therefore, overruled.

We begin the consideration of the ultimate question involved here as to the exemption or non-exemption of the property of plaintiff being used as parking lots for the faculty, staff, interns, residents, nurses and visiting physicians, by referring to the holding of the Supreme Court of Tennessee in Peabody College v. State Board of Equalization, 219 Tenn. 123, 407 S.W.2d 443 (1966), wherein the Court reaffirmed the long standing rule in Tennessee which finds support in its constitution, that tax exemption in favor of educational institutions must be liberally construed. The Court, among other things, said:

“Since the decisions of that case, this Court in Mid-State Baptist Hospital, Inc. v. City of Nashville, 211 Tenn. 599, 366 S.W.2d 769 (1963), has emphatically restated the proposition that in this State, contrary to most other states, tax exemption in favor of religious, scientific, literary and educational institutions are liberally construed, rather than strictly. It is further pointed out that the opinion in City of Nashville v. State Board of Equalization, supra, in nowise dilutes the rule of liberal interpretation.”

Also see Book Agents v. State Board of Equalization, 513 S.W.2d 514, 521 (1974).

We are frank to state that we have had difficulty in distinguishing the Chancellor’s holding in the case at bar from the decision and holdings of the Supreme Court of Tennessee in the landmark case of City of Nashville v. State Board of Equalization, 210 Tenn. 587, 360 S.W.2d 458 (1962), wherein the Court, speaking through Mr. Justice Felts, pointed out that under our Constitution and statutes all property should be taxed unless duly exempted by organic or statute law, and one claiming such exemption has the burden of showing his right to it. The Court held that a religious institution’s realty is exempt from taxation only when it is both occupied and used exclusively for one of its charter purposes and that parts of a religious institution’s realty used by it for purposes of operation of automobile parking lots, a cafeteria and snack bar, in competition with other like tax-paying businesses, is not within the exemption provisions of the statute and were, therefore, not exempt from property taxation.

In said case the Court found that the religious institution used part of its realty for purposes of parking automobiles and operating a cafeteria and snack bar in competition with other like tax-paying businesses and that this was not a use that was exclusively for religious purposes, and had no relation to the charter purposes except for some consequential benefits.

The facts in the case at bar are distinguishable from the facts in the above case, where it was shown that the Publishing House was so located that parking facilities and restaurants were readily accessible and available to employees of the Sunday School Board which engaged primarily in the production of religious literature but also published secular literature and sold same for profit.

As far as this record shows, the parking facilities provided for the teaching staff, nurses and other personnel of Vanderbilt Hospital were reasonably necessary for the operation of that institution. Certainly the evidence does not preponderate against the Chancellor’s finding in this regard.

Counsel for plaintiff point to the fact that authorities from other jurisdictions in factual situations identical with or very similar to the facts shown in the ease at bar have almost uniformly held such parking lots to be exempt. These cases are summarized in a recent annotation, 33 A.L.R.3d 938.

Counsel also cite and quote from University Circle Development Foundation v. Perk, 200 N.E.2d 897 (Ohio 1964) and Church Divinity School v. County of Alameda, 314 P.2d 209 (Cal.1957) as being in point. In the University Circle case, supra, parking facilities were needed because of a lack of alternative parking and which were provided for a nominal charge by the educational institution were held to be tax exempt.

The Court stated:

“We conclude that the parking facilities in question are an essential and integral part of the charitable institutions exclusively used to carry on their functions, and the use is in no way commercial. . . . We, therefore, determine and hold that the property in question, used for parking facilities, is property used exclusively for charitable purposes within the meaning of [the Code].”

In the Church Divinity School case, supra, the Court held that the property used exclusively for purposes of education includes any facilities which are reasonably necessary for the fulfillment of a generally recognized function of a complete modern college and held that the parking lot for faculty, students and staff was reasonably necessary to the proper functioning of the school.

The most recent case dealing with the subject at hand in which there is a published opinion of the Supreme Court of Tennessee is LaManna v. Electrical Workers Local Union, 518 S.W.2d 348 (1974).

In an opinion wherein Mr. Justice Harbi-son spoke for the Court, the previous cases in Tennessee were reviewed and considered and limited tax exemption was upheld as a part of a parking lot adjacent to the defendant Union’s headquarters where it was shown that at least part of the lot was used by students who came to the defendant’s building for instruction and where Boy Scouts met regularly for purposes that might be regarded as being educational.

As stated in the opinion, the case involved a claim to tax exempt status of the headquarters and parking facilities of a local chapter of an International Union situated in Memphis, Tennessee. The building contained the business offices, the hiring hall and record offices of the local union, but some classrooms used for instructional purposes were in the basement or lower floor of the building and a parking area was used by some of those coming there for instruction.

It is recited that exemption was claimed on the basis that the local union was an educational institution within the meaning of the Tennessee statutes. The Chancellor held that the premises were entitled only to a partial exemption, but the Court of Appeals modified the decision so as to allow a tax exempt status to all of the property, except one office which was used for a Credit Union. In LaManna, the Court went on to say:

“As presented in this record, therefore, the question of whether the property in question is entitled to tax exempt status is primarily a legal one. The dispute between the parties concerns the extent to which the admitted uses of the property may place it within the exemptions allowed by state statutes.”

The Court referred to and quoted from Book Agents of Methodist Episcopal Church, South v. State Board of Equalization, 513 S.W.2d 514 (Tenn.1974), as being the most recent and comprehensive treatment of the subject of the tax exemption statutes in Tennessee wherein it was held, among other things, that the determination of the scope of exemption and application of exemption to the facts does not result simply in a fact conclusion allowing only limited appellate judicial review. The opinion then quotes from the Book Agents case, supra, as follows:

“The tax exemption statutes in Tennessee are construed liberally in favor of religious, charitable and educational institutions . . . The basis for a liberal construction is a ‘benefit conferred on the public by such institutions, and a consequent relief, to some extent, of the burden upon the state to care for and advance the interests of its citizens.’ ” [513 S.W.2d at 521]

The Court concludes as follows:

“Since the instructional program comprises approximately ten percent of the total activity shown to be conducted on the property, however, we think that the exemption of the parking spaces on the property at 1870 Madison Avenue, allowed by the Chancellor, should be permitted to stand.”

It is thus seen that in this most recent Supreme Court case it was held that the property was exempt from taxation to the extent the instructional program was shown to be conducted on it in relation to other uses and the parking spaces on that property duly related to the instructional program were exempt.

In the case at bar we think it appears with sufficient clarity that the program and activities of the Vanderbilt University Hospital are directly related to and a part of the educational program of the institution and that the parking spaces provided for the instructors, the staff, the nurses and others who are an integral and necessary part of that educational process should be and are held to be exempt from ad valorem taxation by the defendant.

It results that Assignments Nos. 1 and 2 are overruled..

All assignments having been overruled, the judgment of the Chancellor is affirmed.

AFFIRMED.

TODD, J., dissents.

DROWOTA, J., concurs.

TODD, Judge,

dissenting.

I respectfully dissent from the majority opinion which, in effect, overruled City of Nashville v. State Board of Equalization, 210 Tenn. 587, 360 S.W.2d 458 (1962).

In the cited case, it was held that the realty of an eleemosynary institution is exempt under the statute only when it is both occupied and used exclusively by the institution for one of its charter purposes, and exemption is denied when property is leased to others or not used for charter purposes.

In the same case it was held that secular business enterprises outside the purposes stated in the charter with no relationship to charter purposes except consequential benefits are not exempt from taxation.

In said case it was held that portions of the property used for cafeteria, snack bar and free employee parking lots, including the roof of a building otherwise exempt, were taxable under the rationale that the said uses, even though confined to employees, were secular in nature and in competition with private, tax paying enterprise.

It is argued that there is little or no tax paying private enterprise in competition with the parking lots in the present case. It is not stated in the Nashville v. State Board case that there were actually private parking lots with sufficient capacity to accommodate the 665 automobiles parked on the property claimed exempt. (In reason and common sense, it must be assumed that no such large parking area was lying unused because of the parking space claimed exempt.)

The reasonable import of the Nashville v. State Board case is that the test is the deprivation of the opportunity of patronage to tax paying enterprises which would naturally exist in the absence of tax exempt competition. If the meaning of Nashville v. State Board is as conceived by the Chancellor, then Nashville v. State Board is now subject to revision based upon the fact that the free parking lots furnished to employees have now driven private parking lots out of business so that there are no longer any private tax-paying parking lots to be affected by the competition.

In reality, appellee is paying its employees a fringe benefit (free parking fees) which, if paid in cash would be taxable as income and, when used to pay a private parking lot, would again augment tax revenues when the owner of the parking lot paid his privilege and property taxes. Our exemption law simply does not authorize tax exempt institutions to furnish tax exempt services to their employees.

As stated in the Nashville v. State Board opinion:

“It may well be that the Board, like many other large business concerns, finds that its furnishing eating and parking facilities for employees makes them better satisfied and furthers its efficiency. The same would no doubt be true as to furnishing them many other ‘fringe benefits’ of modern-day living; and if the Board may operate the parking lot and restaurant businesses tax-free, why may it not also operate other businesses tax-free, such as housing project, clothing store, automobile repair shop, etc., for its employees?”

The writer of this opinion is not unfriendly to eleemosynary institutions, nor unsympathetic with the need for parking facilities for employees. The burden of this dissent is that there must be some limitation upon the extent of exempt property holdings, and that limitation was stated in the Nashville v. State Board decision.

There is no reason why appellee cannot continue to provide parking facilities to its employees at a nominal charge sufficient to defray taxes and other expenses of its employee parking lot.

For the reasons stated, the decree of the Chancellor should be reversed.


source: Caselaw Access Project

author: POPE, Justice. STEAKLEY, Justice,

license: Public Domain

text:
    Virginia EGGEMEYER, Petitioner, v. Homer Joseph EGGEMEYER, Respondent.
    No. B-6019.
    Supreme Court of Texas.
    May 18, 1977.
    Rehearing Denied July 13, 1977.
    Dissenting Opinion on Denial of Rehearing July 13, 1977.

      Bradley C. Miles, San Angelo, for petitioner.
    Marvin C. Hanz, San Angelo, for respondent.
   POPE, Justice.

The question presented by this appeal is whether a trial court may in a divorce decree divest one spouse of his separate realty and transfer title to the other spouse. The court of civil appeals in reversing the judgment of the trial court has ruled that section 3.63 of the Family Code does not authorize such a divestiture of one’s title to separate property. 535 S.W.2d 425. We affirm that judgment. This court has jurisdiction because the holding of the court of civil appeals conflicts with the holding in Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.1974, no writ).

The trial court granted Virginia Eggem-eyer a divorce from Homer Eggemeyer and named her managing conservator of their four minor children. The trial court also awarded Virginia all of the community interest in the small family farm. Homer owned as his separate property an undivided one-third interest in the farm by reason of a gift from his mother. The trial court divested him of that interest and transferred his title to Virginia. The farm was already subject to a 20,101.80 dollar debt owing the Federal Land Bank of Houston as well as a second lien in the amount of 5,200 dollars. In divesting title from Homer, the court created and imposed still another lien against the property in the sum of 10,000 dollars which was ordered payable to Homer by Virginia on July 16, 1982, the date when the youngest of the four children reaches age eighteen. The trial court ordered Homer to pay one hundred dollars per child per month until each reaches eighteen. The court of civil appeals in reversing the divestiture of title followed the well-reasoned decision of Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.1975, no writ), and several previous decisions by this court.

It has long been the law that upon divorce the rents, revenues, and income from a spouse’s separate property may be set aside for the support of the minor children. In support of that principle, the court of civil appeals properly cited Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923); Rice v. Rice, 21 Tex. 58 (1858); Fitts v. Fitts, 14 Tex. 443 (1855), and section 14.-05(a) of the Texas Family Code. The trial court could have but did not set over the father’s separate interest in the farm to the mother for the support of the children during their minority. The court of civil appeals did remand the cause to the trial court to consider such an arrangement. That arrangement would have satisfied the law’s command that Homer Eggemeyer must support his minor children without divesting Homer of his title in his separate property.

Article 4639a, enacted in 1935, for the first time authorized divorce courts to inquire into the financial circumstances of the parties and to make orders for child support. Prior to this article’s enactment, the Texas courts fashioned a method for enforcing the parents’ legal duty to provide child support. The parents’ property, whether community or separate, was subjected to a trust or some other form of interim management to insure the payment of child support. Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931); Fitts v. Fitts, supra. When the duty of support to the minor was fulfilled, the property was freed from the trust. This method did not divest nor transfer to another person the owner’s fee title.

Virginia Eggemeyer states that section 3.63 of the Family Code authorizes the divestiture of Homer’s separate realty and its vesting in her because the trial court can make such an order when it is “just and right.” The statute is, of course, wholly silent about that matter. The argument is that the earlier article 4638 specifically prohibited the divestiture of title whereas the Family Code does not. From this omission, she argues the legislature intended to change the law and to authorize a divestiture. This is not a correct result for several reasons.

The legislative commentary which accompanied the section when it was being considered by the legislature stated: “This is a codification of present law.” McKnight, Commentary on Sec. 3.63, 5 Tex.Tech L.Rev. 337 (1974). The legislature believed it was making no change but was carrying forward the law as it then existed.

Section 14.05(a) of the Family Code supplies additional evidence of the legislature’s intent to keep the law unchanged and as it was under article 4638. In construing section 3.63, section 14.05(a) has apparently escaped the consideration of the parties. As appears from the section’s second sentence, section 14.05(a) carried forward into the Family Code what was well established by judicial precedent:

§ 14.05. Support of Child
(a) The court may order either or both parents to make periodic payments or a lump-sum payment, or both, for the support of the child until he is 18 years of age in the manner and to the persons specified by the court in the decree. In addition, the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree. [Emphasis added.]

The legislature expressly authorized the setting aside of property “to be administered,” not divested, and “for the support of the child,” but not for the support of a spouse. That was a codification of existing law. Section 3.63 does not expressly authorize the divestiture of separate realty, but section 14.05 does expressly authorize an interim administration of a spouse’s property to assure the payment of child support. The reasonable conclusion is the legislature in enacting section 14.05 was codifying existing law.

Other evidence of legislative intent is derived from that part of section 3.63 which declares a divorce decree shall order “a division of the estate of the parties in a manner that the court deems just and right.” The only “estate of the parties” is community property. Under former article 4638, we construed “the estate of the parties” to mean community property. Reardon v. Reardon, 359 S.W.2d 329 (Tex.1962); Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960); Mansfieid v. Mansfield, 308 S.W.2d 80 (Tex.Civ.App.1958, writ dism’d). The community estate may logically be the subject of “a division.” The statute does not authorize a division of the “estates” of the parties. McKnight, Commentary on Sec. 3.63, 5 Tex.Tech L.Rev. 338 (1974).

A constitutional problem also arises from the trial court’s decree that the husband’s separate property shall become the separate property of the divorced wife. The nature of property is fixed by the Texas Constitution, and not by what is “just and right.” Culpability may, despite no-fault divorce, be a basis for the dissolution of a marriage, but it is no basis for a redefinition of property at variance with the Texas Constitution. Section 15, article XVI of the Texas Constitution declares that a wife’s property, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent shall be the separate property of the wife. By reason of legislation, the husband’s property is classified the same way. If one spouse’s separate property may by a divorce decree be changed from the separate property of the one spouse into the separate property of the other, there is a type of separate property which is not embraced within the constitutional definition of the term. This question has never been confronted by this court, and as Professor MeKnight has written: “Thus a constitutional issue that has never been raised needs resolution.” McKnight, Matrimonial Property, 27 Sw.L.J. 37, 38 (1973).

This court held in Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), and again in Graham v. Franco, 488 S.W.2d 390, 392 (Tex.1972), that the constitutional definition of separate property was intended to be exclusive and that it may not be altered or enlarged by an act of the legislature. See also, Gorman v. Gause, 56 S.W.2d 855 (Tex.Com.App.1933, holding approved); Huie, The Texas Constitutional Definition of the Wife’s Separate Property, 35 Tex.L.Rev. 1054, 1057-1058 (1957). This court has also held that the legislature cannot transform one type of constitutionally defined property into another type of property. Williams v. McKnight, 402 S.W.2d 505 (Tex.1966). We said in Hilley v. Hilley, 161 Tex. 569, 342 S.W.2d 565, 567-568 (1961):

All marital property is thus either separate or community. If acquired before marriage by any method, or after marriage by gift, devise or descent, it is separate; otherwise, it is community. . Property purchased with separate funds is separate . . . and community property partitioned in the manner provided in Articles 4624a and 881a-23, becomes separate property.

There is another constitutional problem. The protection of one’s right to own property is said to be one of the most important purposes of government. That right has been described as fundamental, natural, inherent, inalienable, not derived from the legislature and as preexisting even constitutions. Pennsylvania Coal Co. v. Mahon, 260 U.S. 393, 43 S.Ct. 158, 67 L.Ed. 322 (1922); 28 A.L.R. 1321 (1924); 16 Am. Jur.2d, Constitutional Law § 362 (1964). Article I, section 19, of the Texas Constitution explains that no citizen of this state shall be deprived of his property except by the due course of the law of the land. The due course that protects citizens requires not only procedural but also substantive due course. See Interpretive Commentary after section 19, art. I, Tex.Const., p. 448, Vernon’s Tex.Const: “One person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid.” Thompson v. Consolidated Gas Co., 300 U.S. 55, 80, 57 S.Ct. 364, 376, 81 L.Ed. 510 (1936). This court quoted and relied upon that statement from Thompson in Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941, 949 (1944). There is no contention that the taking of Homer’s separate property and its transfer to Virginia is justified by any benefit to the public welfare. The taking was not grounded upon the police power; consequently, the taking from Homer would not have been a constitutional act even if the legislature had expressly authorized the divestiture of one person’s property and its vesting in another person.

The court of civil appeals, as stated above, held correctly that the trial court may set aside either spouse’s separate real property, its income, rents, or revenues for the support of the minor children. Chief Justice Hemphill, writing in Rice v. Rice, 21 Tex. 58, 71 (1858) said:

The separate property may be divided in cases of necessity; or the whole, both separate and community, may be kept together as in this case, for the benefit of the children; but the decree must not divest either party of their title in the lands or slaves. It will be no breach of the statute to decree the use of property, for some period, to the use of the children, reserving the fee of the property in the husband to be enjoyed by him after the expiration of the trust estate for the children.

The basis for the holding was the duty of the parent to support his children whether from the community or the separate estate. The trial court judgment which was approved in Rice was that a receiver under bond would take charge of the property, collect the proceeds, and apply them to the support, education, and maintenance of two minor children. Rice, supra, 64.

Virginia Eggemeyer strongly relies upon Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923), as supporting her contention that Homer Eggemeyer’s separate property may be transferred to her. The husband and father in that divorce action owned one hundred acres as his separate property which was also the family homestead. It was the homestead interest not the land itself, that was granted the wife and two children of the marriage “during the balance of the natural life of the plaintiff (mother).” The lands were adjudged the property of the husband, and the decree was that “Possession of said land to revert to said defendant, J. G. Hedtke at the termination of said homestead rights as herein provided. . . . ” In that case, the reason for the rule was also expressed; it was the husband’s burden to support his family. The court was overbroad in its statement that the divorced husband owed family obligations to the divorced wife as distinguished from their children, but the court clearly recognized the limitations upon divesting title:

For the purpose of doing equity, the court may award all the personal property to either spouse, and may subject the income, rents, or revenues of all real estate belonging to either or both of the spouses, to the support of either or both of them, or to the education and support of the children.

The case concerned homestead rights, that is, the use of the husband’s separate property upon which homestead rights accrued during marriage. Homestead rights are different from the community or separate character of property. In Hedtke, homestead rights were properly subject to the decree as a part of the court’s order for support of the children. We should not extend this precedent which upholds a right to a continued use of separate property as homestead to a right to divest title in separate property.

The dictum of Hedtke v. Hedtke, supra, that a divorce court may dispose of “any and all property of the parties, separate or community” in the exercise of a wide discretion which will be corrected only where there is an abuse of discretion is, in general, a sound rule. See, Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960). It was not, however, essential to the decision. The trial court had decreed the homestead right during the life of the divorced wife, but provided further that “[possession of said land to revert to said defendant J. G. Hedtke, at the termination of said homestead rights . .Trial courts have a broad latitude in the division of the marital community property, but that discretion does not extend to a taking of the fee to the separate property of the one and its donation to the other. This is the construction which this court has previously given Rice and Hedtke. See Cunningham v. Cunningham, 120 Tex. 491, 40 S.W.2d 46 (1931).

The language and holdings of a number of courts of civil appeals are reviewed and distinguished in Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.1975, no writ). We agree with that decision. We disapprove the language of Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.1974, no writ), as well as the language and holdings of those decisions which have construed section 3.63 of the Family Code at variance with this opinion, Baxla v. Baxla, 522 S.W.2d 736 (Tex.Civ.App.1975, no writ); In re Marriage of Butler, 543 S.W.2d 147 (Tex.Civ.App.1976, writ dism’d); Burns v. Burns, 541 S.W.2d 280 (Tex.Civ.App.1976, no writ); Dietz v. Dietz, 540 S.W.2d 418 (Tex.Civ.App.1976, no writ); Merrell v. Merrell, 527 S.W.2d 250 (Tex.Civ.App.1975, writ ref’d n.r.e.); Harrison v. Harrison, 495 S.W.2d 1 (Tex.Civ.App.1973, no writ); In re Marriage of McCurdy, 489 S.W.2d 712 (Tex.Civ.App.1973, writ dism’d); Medearis v. Medearis, 487 S.W.2d 198 (Tex.Civ.App.1972, no writ). See McKnight, Division of Texas Marital Property on Divorce, 8 St. Mary’s L.J. 413, 444-449 (1976).

The correct rule, as stated by the court of civil appeals in this case, is that a parent owes a duty to support his child and that duty can be enforced against the parent and his separate property. A receiver or trustee may be named to assure compliance with the order for child support. The fee to the separate property, however, may not be divested.

We affirm the judgment of the court of civil appeals reversing the trial court’s divestiture of the husband’s separate property and remanding the cause to the trial court to determine whether an interim arrangement for the support of the children should be made.

STEAKLEY, J., joined by GREENHILL, C. J., and REAVLEY and YARBROUGH, JJ., dissent.

ON MOTION FOR REHEARING

STEAKLEY, Justice,

dissenting.

The dissenting opinion delivered May 18, 1977 is withdrawn, and the following is substituted therefor.

This case presents a narrow and easily articulable question: Does Section 3.63 of the Texas Family Code authorize the divestiture of title to a spouse’s separate real property where such action is necessary to effect a “just and right” division of the marital property of divorcing spouses? In the instant case the Court of Civil Appeals held the trial court did not have such authority, citing Ramirez v. Ramirez, 524 S.W.2d 767 (Tex.Civ.App.—Corpus Christi 1975, no writ). Eggemeyer v. Eggemeyer, 535 S.W.2d 425 (Tex.Civ.App.—Austin 1976). A majority of this Court affirms that holding. I would reverse the judgment of the Court of Civil Appeals and affirm that of the trial court, the effect of which would be to divest Homer Eggemeyer of a one-third undivided interest in the family farm, an interest which was his separate property by virtue of a gift from his mother.

Section 3.63 of the Texas Family Code provides:

In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

Tex. Family Code Ann. § 3.63 (1975). The predecessor statute repealed by the enactment of the Family Code was Article 4638. It provided:

The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate. [Emphasis added.]

See Tex. Laws 1841, An Act Concerning Divorce and Alimony §§ 1-14, at 19-22, 2 H. Gammel, Laws of Texas 483-486 (1898). The italicized sentence in Article 4638, and in all its predecessor statutes, was not carried forward in Section 3.63. Notwithstanding, the majority here holds that Section 3.63 does not authorize the trial court to divest a divorcing spouse of his or her separate real property when ordering a division of the marital estates. Accord, Ramirez v. Ramirez, supra. Contra, Wilkerson v. Wilkerson, 515 S.W.2d 52 (Tex.Civ.App.—Tyler 1974, no writ). Established principles of statutory construction require the opposite result. Furthermore, such a result does not contravene either the United States or Texas Constitution.

I.

The majority construes the phrase “estate of the parties” to mean only the community property of the spouses. Such a construction, while perhaps grammatically sound, is contrary to well-established Texas law and practice. In Hedtke v. Hedtke, 112 Tex. 404, 248 S.W. 21 (1923), this Court iterated the parameters of a trial court’s discretion in dividing the property of divorcing spouses. Construing the language of Article 4638, the Court wrote:

The estate subject to division, under the statute, include[s] all property of the parties whether community property or separate property. The meaning of the statute is not different from what it would have been had the word “property” been substituted in its phraseology for the word “estate.” .

Id. at 22. The construction adopted by the Court in Hedtke has been accepted and adhered to ever since. See, e.g., In re Marriage of Jackson, 506 S.W.2d 261 (Tex.Civ. App.—Amarillo 1974, writ dism’d); Dorfman v. Dorfman, 457 S.W.2d 417 (Tex.Civ.App.—Texarkana 1970, no writ); Earnest v. Earnest, 223 S.W.2d 681 (Tex.Civ.App.—Amarillo 1949, no writ); Smith, Family Law, 26 Sw.L.J. 51, 55 & n.30 (1972). The phrase “estate of the parties” was carried forward into Section 3.63. In construing a statute we must assume the Legislature was aware of prior judicial interpretations, and reenactment of a statute or portion thereof without a change in its language indicates approval of such prior judicial interpretations. Koy v. Schneider, 110 Tex. 369, 221 S.W. 880 (1920); Gabbert v. City of Brownwood, 176 S.W.2d 344 (Tex.Civ.App.—Eastland 1943, writ ref’d); 2A Sutherland, Statutes and Statutory Construction § 45.12 (4th ed. 1973). Thus, I would construe “estate of the parties,” in accordance with established Texas law, to mean all property of the parties, whether real or personal, separate or community.

I respectfully suggest the majority’s construction of “estate of the parties” finds no support in the cited authorities, Reardon v. Reardon, 163 Tex. 605, 359 S.W.2d 329 (1962); Hailey v. Hailey, 160 Tex. 372, 331 S.W.2d 299 (1960), and Mansfield v. Mansfield, 308 S.W.2d 80 (Tex.Civ.App.—El Paso 1958, writ dism’d). None of these cases contain language purporting to construe the disputed phrase. In Reardon the Court of Civil Appeals, uncertain of the effect of a prior decision of this Court, certified a question to the Court. The only issue was whether or not the proviso of Article 4638 proscribing the divestiture of title to real estate was applicable to community property. This Court reiterated its holding in Hailey, supra, and held that the prohibition against the divestiture of title did not apply to community real property. No other issue was before the Court, and no other language of the statute was involved. Specifically, the Court did not expressly or impliedly ascribe a meaning to the phrase “estate of the parties.” In Hailey, supra, the spouses owned two lots as community property. The trial court granted the parties a divorce and awarded one lot to each spouse. The Court of Civil Appeals reversed the trial court on the ground that it was error to award one lot to each party. This Court reinstated the trial court judgment, holding that the divestiture of a spouse’s interest in community real property was not prohibited by the proviso of Art. 4638; Again, the opinion of this Court contained no construction of the phrase “estate of the parties.” Mansfield v. Mansfield, supra, did not reach this Court, but it, too, involved the question of whether a trial court’s division of community real property ran afoul of the statutory prohibition against divestiture of title to real estate. The Court of Civil Appeals there held that such divestiture was not proscribed by the statute. It did not purport to construe “the estate of the parties.” The majority also cites an article by Professor McKnight as supporting its construction of “estate of the parties.” See, McKnight, Commentary on Sec. 3.63, 5 Tex.Tech.L.Rev. 338 (1974). McKnight does suggest that the majority’s construction is logically supportable, but he also notes that the majority construction “would . . . depart from long usage with respect to discretionary division of separate personalty.” Id. [Emphasis added.]

Reardon, Hailey, and Mansfield, supra, are important to the resolution of this case for another reason, however. Those cases establish beyond question that the Art. 4638 prohibition against the divestiture of title to real estate applied only to separate realty. The reasoning of this Court in Hailey, reaffirmed in Reardon, was that a division of community realty does not involve a divestiture of title but instead effects a partition of real property between persons already possessing title thereto.

The pronouncements of this Court in Hedtke and Hailey established the parameters of Article 4638 within which a trial court could exercise its discretion in dividing the property of a divorcing husband and wife. In Hedtke this Court construed “estate of the parties” to mean all property of the parties, community and separate. In Hailey we held the prohibition against divestiture of title to real estate applied only to the separate real property of the spouses and did not prohibit the division of community realty upon divorce. At the time of the enactment of Section 3.63 the law was clear — a court dividing the marital properties was authorized to award community realty, community personalty, and separate personalty to either spouse upon a determination that such was “just and right.” It could not, however, award one spouse’s separate realty to the other because the last sentence of Article 4638 prohibited it.

There is no difference in the constitutional classification of separate real and separate personal property. It is therefore unmistakably implicit in the decisions of this Court and the various courts of civil appeals that absent the statutory prohibition against the divestiture of title to real estate, an award of separate realty would also be within the authority of the trial court in ordering a division of the estate of the divorcing parties. It was precisely this prohibition that was removed by the Legislature in the enactment of Section 3.63. Ordinarily, the fact “that significant words are omitted from the re-enactment or amendment of a statute imports a conclusive presumption that the Legislature intended to exclude the object theretofore accomplished by the abandoned words.” Gateley v. Humphrey, 151 Tex. 588, 254 S.W.2d 98 (1952). Stated differently, there is a presumption that if a change occurs in legislative language, a change was intended in legislative result. 2A Sutherland, Statutes and Statutory Construction § 45.12 (4th ed. 1973). Where the language of a statute is plain and clear, it must be given effect as written. Railroad Commission of Texas v. Miller, 434 S.W.2d 670 (Tex. 1968); Simmons v. Arnim, 110 Tex. 309, 220 S.W. 66 (1920). I would give effect to the language of Section 3.63 and hold that a trial court adjudicating a divorce has the authority to divide all the marital properties, whether real or personal, separate or community.

In construing the statute, the majority relies on a statement by Professor McKnight that the legislative commentary which accompanied the statute stated: “This is a codification of present law.” See, McKnight, Commentary on Sec. 3.63, 5 Tex.Tech.L.Rev. 337 (1974). From this fact the majority concludes the Legislature believed it was making no change in the law by enacting Section 3.63. Clearly the courts recognized the Legislature had in fact changed the law. See, e.g., Wilkerson, supra; Baxla v. Baxla, 522 S.W.2d 736 (Tex.Civ.App.—Dallas 1975, no writ). The action of the courts in divesting title to separate realty made known to the Legislature the effect of its action. Furthermore, commentators were quick to point out the omission. See, e.g., Smith, Family Law, 26 Sw.L.J. 51, 55 (1972). The Legislature has met in regular session four times since the effective date of Section 3.63, and it has considered legislation to restore the prohibition against the divestiture of title to separate realty. Yet it has chosen not to restore the statutory prohibition.

Section 14.05(a) of the Family Code is said to provide additional evidence that the Legislature intended to keep the law unchanged. I respectfully submit that Section 14.05 does not provide support for the majority’s result and, indeed, is irrelevant to the question now before this Court. Section 14.05, entitled “Support of Child,” is concerned with what provision may be made for the support of children of the marriage. It provides that “the court may order a parent obligated to support a child to set aside property to be administered for the support of the child in the manner and by the persons specified by the court in the decree.” Tex. Family Code Ann. § 14.05(a) (1970). The majority points out that Section 14.05 does not authorize the divestiture of title to property in order to provide support for a child, nor does it provide for the support of the wife. The question before us is unrelated to the statutory obligations of support. We are here concerned only with what authority a trial court may exercise in dividing the property of the spouses upon divorce. Questions having to do with methods of enforcing the support obligations of a parent are totally independent of and apart from questions concerning the authority of a trial court to divide the marital properties between divorcing spouses “in a manner that the court deems just and right.”

II.

The majority opinion concludes that its construction of Section 3.63 is mandated by the United States and Texas Constitutions. The argument is two-pronged. First, according to the majority, the constitutional definition of separate property is exclusive and does not permit the “creation” of separate property via the judicial act of divesting the separate property of one spouse and awarding it to the other. Secondly, the majority concludes that the taking of one spouse’s separate property and its transfer to the other would violate the due process mandate that one person’s property may not be taken for the benefit of another private person without a justifying public purpose.

The original predecessor statute to Section 3.63 was enacted in 1841 and was not materially amended until the enactment in 1969 of Section 3.63 of the Texas Family Code. The pertinent portion of Article 16, Section 15 of the Texas Constitution has had a similarly long life and has not been amended in any relevant particular. That section now provides, in pertinent part:

“Sec. 15. All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property as that held in common with her husband; . . . ” (Italics added).

The property of the husband is similarly characterized by statute. See Tex. Family Code Ann. § 5.01 (1975). The original predecessor of Article 16, Section 15 of the present Constitution was Article 7, Section 19 of the Texas Constitution of 1845. It was then provided in identical language:

“Sec. 19. All property both real and personal of the wife, owned or claimed by her before marriage, and that acquired afterwards by gift, devise, or descent, shall be her separate property; and laws shall be passed more clearly defining the rights of the wife, in relation as well to her separate property, as that held in common with her husband. . . .”

Thus, the Legislature, in passing the original statute of 1841 and in re-enacting the statute through the years, culminating in the enactment of Section 3.63 of the Family Code in 1969, has acted pursuant to the constitutional mandate to pass laws “more clearly defining the rights of the [marital partners], in relation as well to [their] separate property, as that held in common with [the other spouse].”

The authority granted a trial court by Section 3.63 does not authorize the creation of a type of separate property inconsistent with the constitutional definition of the term. See Article 16, Section 15, supra. As noted above, the majority asserts that where a trial court divests one spouse’s title to separate property and awards it to the other spouse as his or her separate property, the property cannot constitutionally become the separate property of the second spouse because it is neither “owned or claimed . before marriage” nor “acquired afterwards by gift, devise, or descent.” This argument fails for two reasons. First, the property division directed by Section 3.63 occurs after the divorce of the parties, and Article 16, Section 15, providing for the initial characterization of property, does not control this situation. Secondly, the constitutional definition of separate property is not exclusive. There are numerous recognized classifications of separate property that consist of property “not owned or claimed” before marriage or “acquired afterward by gift, devise or descent.” This is true, for example, of mutations of separate property and of post-marriage increases in the value of separately held land and personalty. See Stringfellow v. Sorrells, 82 Tex. 277, 18 S.W. 689 (1891); Love v. Robertson, 7 Tex. 6 (1851); Lessing v. Russek, 234 S.W.2d 891 (Tex.Civ.App.—Austin 1950, writ ref’d n.r.e.); Evans v. Purinton, 12 Tex.Civ.App. 158, 34 S.W. 350 (Tex.Civ.App.—1896, writ ref’d). See also McKnight, supra, at 337. Similarly, personal injury awards are the separate property of the injured spouse under the statutory mandate that a spouse’s separate property includes the “recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.” Tex. Family Code Ann. § 5.01(a) (1975).

In support of its holding that the constitutional definition of separate property was intended to be exclusive and that it may not be altered or enlarged by an act of the Legislature, the majority cites Arnold v. Leonard, 114 Tex. 535, 273 S.W. 799 (1925), and Graham v. Franco, 488 S.W.2d 390 (Tex. 1972). In Arnold this Court found to be unconstitutional a statute which provided that income from a wife’s separate property was the separate property of the wife. After a lengthy review of relevant authority, this Court concluded the statute there in question impermissibly attempted to expand the constitutional definition of the wife’s separate property, a definition the court held to be exclusive. However, this Court’s most recent consideration of the constitutional definition of separate property suggests a more flexible approach. In Graham v. Franco, supra, the Court considered the constitutionality of a statute providing that personal injury recoveries were the separate property of the injured spouse. Discussing Arnold v. Leonard, supra, this Court recognized that the rationale of Arnold was “one of implied exclusion, i.e., if property was acquired during marriage by any other means than gift, devise, or descent, it was and is necessarily community.” Graham v. Franco, supra at 392. Continuing, the Court wrote:

A much later case of this Court reverted to a test more akin to that prevailing under the Spanish and Mexican law, and several early opinions of this Court, dealing with community property. It applied an affirmative test; i.e., that property is community which is acquired by the work, efforts or labor of the spouses or their agents, as income from their property, or as a gift to the community. Such property, acquired by the joint efforts of the spouses, was regarded as acquired by “onerous title” and belonged to the community. Norris v. Vaughan, 152 Tex. 491, 260 S.W.2d 676 (1953); DeBlane v. Lynch, 23 Tex. 25 (1859); Smith v. Strahan, 16 Tex. 314 (1856); Epperson v. Jones, 65 Tex. 425 (1886); De Funiak, Principles of Community Property (1971) § 62; Moynihan, Community Property, 2 American Law of Property (1952) § 7.16. Under this reasoning, it is clear that the personal injuries to the wife are not “acquired” by the efforts of the spouses and would not belong to the community. Thus in Norris v. Vaughan, supra, Justice Smith wrote for this Court that:
“The principle which lies at the foundation of the whole system of community property is, that whatever is acquired by the joint efforts of the husband and wife, shall be their common property.”

Id. at 392-393. Thus, rather than emphasizing the exclusivity of the constitutional definition of separate property, Graham supports a more flexible interpretation of the provision, one recognizing that such flexibility is necessary in order to solve problems that occasionally arise in the application of existing principles of marital property law. See Huie, The Texas Constitutional Definition of the Wife’s Separate Property, 35 Tex.L.Rev. 1054, 1061 (1957).

The second constitutional ground upon which the majority relies is the absence of due process of law, or, as the Texas Constitution refers to it, “due course of the law of the land.” Tex.Const. art. I, § 19. The majority holds that a trial court’s divestiture of title to one spouse’s separate property and subsequent investiture of title in the other spouse would violate substantive due course, i.e., would be a taking of private property unjustified by a resultant benefit to the public welfare. The majority relies on the opinion of this Court in Marrs v. Railroad Commission, 142 Tex. 293, 177 S.W.2d 941 (1944), as supporting its holding. In Marrs it was alleged that, by virtue of an order of the Railroad Commission setting an arbitrarily low allowable in one section of an oil field, the plaintiffs’ land was being drained of oil and gas. This Court upheld the plaintiffs’ claim that the Commission’s order resulted in an unconstitutional taking of private property and the gift of it to another private person without a justifying public purpose. See Thompson v. Consolidated Gas Co., 300 U.S. 55, 57 S.Ct. 364, 81 L.Ed. 510 (1936). The only “public purpose” possibly served by the Commission’s order was the conservation of valuable natural resources, but the evidence in Marrs did not indicate the order in question was necessary to accomplish that purpose.

The case of a statutory scheme for the division of property upon divorce, a scheme which authorizes a court to award one spouse’s separate property to the other where necessary to effect a “just and right” property division, presents uniquely different questions. The special relationship between the state and the institution of marriage has often been recognized. See, e. g., Williams v. North Carolina, 317 U.S. 287, 63 S.Ct. 207, 87 L.Ed. 279 (1942). The nature and effect of this special relationship have been described as follows:

Marriage, as creating the most important relation in life, as having more to do with the morals and civilization of a people than any other institution, has always been subject to the control of the legislature. That body prescribes the age at which parties may contract to marry, the procedure or form essential to constitute marriage, the duties and obligations it creates, its effects upon the property rights of both, present and prospective, and the acts which may constitute grounds for its dissolution. [Emphasis added.]

Maynard v. Hill, 125 U.S. 190, 205, 8 S.Ct. 723, 726, 31 L.Ed. 654 (1887). See also Loving v. Virginia, 388 U.S. 1, 87 S.Ct. 1817, 18 L.Ed.2d 1010 (1966) (“a social relation subject to the State’s police power”); Haddock v. Haddock, 201 U.S. 562, 26 S.Ct. 525, 50 L.Ed. 867 (1906); Andrews v. Andrews, 188 U.S. 14, 23 S.Ct. 237, 47 L.Ed. 366 (1902); Baker’s Executors v. Kilgore, 145 U.S. 487, 12 S.Ct. 943, 36 L.Ed. 786 (1891); 1 Simpkins, Texas Family Law § 1:1 (1975); 55 C.J.S. Marriage § 2 (1948). The broad regulatory powers of the state over the institution of marriage clearly extend to the division of property upon divorce. Furthermore, it is within the power of the Legislature to provide, as it impliedly has, that upon divorce one spouse’s separate property can be awarded to the other where necessary to effect a “just and right” property division. Because of the state’s pervasive interest in and control over the marriage relation, partners entering a marriage do so subject to the present and future laws of Texas governing the relationship. Section 3.63 of the Texas Family Code is such a law, and the action of a trial court dividing the marital property, both separate and community, pursuant to the statutory mandate, would not deny either party due course of the law of the land.

There is a public purpose served by the statutory investiture of trial courts with the broad power to divide the divorcing spouses’ separate and community real and personal property as they deem “just and right.” That purpose is to insure that one spouse does not, through artful management of the marital property, accumulate a separate estate of substantial value at the expense of the separate estate of the other spouse or at the expense of the community and then, upon divorce, retain that separate estate and relegate the other spouse to his or her separate estate and to the potentially depleted community estate. By prohibiting the invasion of a spouse’s separate property where necessary to effect a just and right property division, the majority sanctions and promotes the societal disharmony resulting from inequitable property settlements upon divorce. In my view the Legislature sought to avoid this potential injustice by granting the trial court broad discretion in dividing the property of the marriage. The holding of the majority narrowly circumscribes that discretion and, in my opinion, is neither mandated by the Constitution nor comports with the statutory provisions.

As noted above, the constitutional rule relied upon by the majority mandates that one person’s property may not be taken for the benefit of another private person without a justifying public purpose, even though compensation be paid. See Marrs v. Railroad Commission, supra. If this rule applies in the instant case to prohibit the divestiture of one spouse’s title to separate property in order to equitably divide the property of the marriage, I suggest that the enforcement of a personal injury judgment is similarly prohibited. Clearly such a judgment takes one private person’s property for the benefit of another, and if there is no “justifying public purpose” in the instant case, there is none in the hypothetical personal injury case. It seems to me there is a “justifying public purpose” in both situations. In a personal injury case, the state has an interest in seeing the injured party compensated for his negligently inflicted injury. In the absence of such compensation, the injured party might be unable to recover financially or spiritually from the accident. Additionally, it is equitable to provide that the negligent party should make reparation to those injured by his negligence. In the case of property division upon divorce, the state has an interest in seeing the property of the marriage equitably divided so as to avoid the imposition of undue financial hardship upon one spouse. Equitable property divisions minimize the deleterious financial and emotional effects of divorce and, therefore, minimize interpersonal conflict. Furthermore, it is just to allow a trial court broad discretion in dividing the marital property in order that each spouse might participate, to the extent deserved, in the economic gains of the marriage.

III.

To reiterate, I would hold that Section 3.63 authorizes a trial court to divest title to one spouse’s separate real property and to award that property to the other spouse as his or her separate property. The Constitution does not prohibit such statutory authorization, and the clear language of the statute demands such an interpretation. I recognize that as a general rule separate property, whether real or personal, should be restored to its owner and the community property of the marriage divided as seems just and right. Fitts v. Fitts, 14 Tex. 443 (1855); Fuhrman v. Fuhrman, 302 S.W.2d 205 (Tex.Civ.App.—El Paso 1957, writ dism’d). As this Court wrote in McElreath v. McElreath, 162 Tex. 190, 345 S.W.2d 722 (1961), each spouse primarily “must look to the community property for her [his] share of the material gains incident to an ill-starred marriage.” Id. at 724. Furthermore, the conceptual basis of community property is the notion that spouses should share as equal partners in the benefits and burdens of the marriage. When the marriage is terminated, the primary fund to be divided is that comprised of assets acquired by the spouses as a community. The invasion of the separate property of one spouse for the benefit of the other can be justified only in exceptional circumstances. This is illustrated by the action of the Court of Civil Appeals in Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ).

I would reverse the judgment of the Court of Civil Appeals and affirm that of the trial court.

GREENHILL, C. J., and REAVLEY and YARBROUGH, JJ., join in this dissent.

      . Article 4638. [4634] [2980] [2864] Division of property. — The court pronouncing a decree of divorce shall also decree and order a division of the estate of the parties in such a way as the court shall deem just and right, having due regard to the rights of each party and their children, if any. Nothing herein shall be construed to compel either party to divest himself or herself of the title to real estate. [P.D. 3452.]

      . Section 3.63: In a decree of divorce or annulment the court shall order a division of the estate of the parties in a manner that the court deems just and right, having due regard for the rights of each party and any children of the marriage.

      . All property, both real and personal, of the wife, owned or claimed by her before marriage, and that acquired afterward by gift, devise or descent, shall be the separate property of the wife . .

      . Section 5.01. Marital Property Characterized (a) A spouse’s separate property consists of:
      (1) the property owned or claimed by the spouse before marriage;
      (2) the property acquired by the spouse during marriage by gift, devise, or descent; and
      (3)the recovery for personal injuries sustained by the spouse during marriage, except any recovery for loss of earning capacity during marriage.
      (b) Community property consists of the property, other than separate property, acquired by either spouse during marriage.

      .No citizen of this State shall be deprived of life, liberty, property, privileges or immunities, or in any manner disfranchised, except by the due course of the law of the land. Tex.Const. art. I, § 19.

      . See also Fitts v. Fitts, 14 Tex. 443 (1855); Rice v. Rice, 21 Tex. 58 (1858); Simons v. Simons, 23 Tex. 344 (1859); Cooper v. Cooper, 513 S.W.2d 229 (Tex.Civ.App.—Houston [1st Dist.] 1974, no writ); Dorfman v. Dorfman, 457 S.W.2d 417 (Tex.Civ.App.—Texarkana 1970, no writ); Keene v. Keene, 445 S.W.2d 624 (Tex.Civ.App.—Dallas 1969, writ dism’d); Roye v. Roye, 404 S.W.2d 92 (Tex.Civ.App.—Tyler 1966, no writ); Allen v. Allen, 284 S.W.2d 774 (Tex.Civ.App.—Galveston 1955, writ dism’d); Rylee v. Rylee, 244 S.W.2d 717 (Tex. Civ.App.—El Paso 1951, no writ); Donias v. Quintero, 227 S.W.2d 252 (Tex.Civ.App.—El Paso 1949, no writ); Jones v. Jones, 211 S.W.2d 269 (Tex.Civ.App.—El Paso 1944, no writ); Puckett v. Puckett, 205 S.W.2d 124 (Tex.Civ.App.—Texarkana 1947, no writ); Tims v. Tims, 201 S.W.2d 865 (Tex.Civ.App.—Amarillo 1947, writ dism’d); Smith v. Smith, 187 S.W.2d 116 (Tex.Civ.App.—Fort Worth 1945, no writ); Lewis v. Lewis, 179 S.W.2d 594 (Tex.Civ.App.—Fort Worth 1944, no writ); Hamm v. Hamm, 159 S.W.2d 183 (Tex.Civ.App.—Fort Worth 1942, no writ).

      . See 63rd Legislature, House Bill No. 102; 65th Legislature, House Bill No. 524.

      . One writer notes that marriage is a civil institution in reference to which “public interests overshadow private — one which public policy holds specially in the hands of the law for the public good, and over which the law presides in a manner not known in other departments.” 1 Bishop on Marriage, Divorce and Separation § 5 (1891).