author: McClendon, o. j.

text:
    JOHNSON et al. v. FERGUSON et al.
    No. 7918.
    Court of Civil Appeals of Texas. Austin.
    Dec. 6, 1932.
    Rehearing Denied Dec. 10, 1932.

      James Y. Allred, Atty. Gen., and Neal Powers and R. G. Waters, Asst. Attys. Gen., for appellants.
    James E. Ferguson and Judge Ocie Speer, both of Austin, for appellees.
   McClendon, o. j.

Appeal from an interlocutory order granting, without notice (ex parte), a temporary injunction, in a suit brought by taxpayers against the members and chief engineer of the state highway commission (called herein the commission), seeking to enjoin the making of further contracts for constructing state highways; such contracts (so it is alleged) being beyond the power of the commission to make and therefore illegal, because there existed no legislative appropriation available for that purpose. The comptroller was also made a party defendant and sought to be enjoined from issuing warrants in payment of contract obligations so created.

The relief sought is predicated upon two counts to the effect:

1. That chapter 13, General Laws Third .Called Session 42d Leg. (H. B. No. 2, p. 15 [Vernon’s Ann. Civ. St. art. 6674q — 1 et seq.]), repealed that portion of chapter 286, Gen. Laws Reg. Sess. 42d Leg. (1631), making appropriation for such construction.

2. That such appropriation, if not repealed, had already been exhausted.

The first count of appellees’ petition, which urges that chapter 13, above, repeals the above-stated appropriation, is predicated upon sections 4 and 5 of the chapter (Vernon’s Ann. Civ. St. arts. 6674q — 4, 6674q — 5), more particularly upon the wording of the latter. These sections read:

“Sec. 4. All further improvement of said State Highway System shall be made under the exclusive and direct control of the State Highway Department and with appropriations made • by the Legislature out of the State Highway Fund. Surveys, plans and specifications and estimates for all further construction and improvement of said System shall be made, prepared and paid for by the State Highway Department. No further improvement of said System shall be made with the aid of or with any moneys furnished by the counties except' the acquisition of rights of way which may be furnished by the counties, their subdivisions or defined road districts. But this shall in no wise affect the carrying out of any binding contracts now existing between the State Highway Department and the Commissioners Court of any county, for such county, or for any defined road district. In the development of the System of State Highways and the maintenance thereof, the State Highway Commission shall, from funds available to the State Highway Department, provide:
“(a) For the efficient maintenance of all highways comprising the State System.
“(b) For the construction, in cooperation with the Federal Government to the extent of Federal Aid to the State, of highways of durable type of the greatest public necessity.
“(c) For the construction of highways, perfecting and extending a correlated system of State Highways, independently from State Funds.
“Sec. 5. All moneys now or hereafter deposited in the State Treasury to the credit of the ‘State Highway Fund,’ including all Federal Aid money deposited to the credit of said Fund under the terms of the Federal Aid Highway Act, shall be subject to appropriation by the Legislature for the specific purpose of t'he improvement of said System of State Highways by the State Highway Department.”

A brief résumé of the events leading up to the enactment of chapter 13 and of its general purposes and provisions will suffice to a clear understanding' of the issue thus presented.

The commission was created by the act of 1917 (chapter 190, p. 416 et seq., General Laws 35th Leg.), establishing the state highway department. This act was amended from time to time, and its provisions carried forward into the 1925 codification of the Revised Civil Statutes under title 116, chapters 1 to 3, inclusive. The act provides for the establishment of a general system of state highways and for the designation of such highways by the commission. Certain rights and duties of supervision of the construction of state highways were originally vested in the commission; and provision was made whereby state and federal aid to such construction was extended to counties and road districts. Later the construction, improvement, and maintenance of state highways was vested- exclusively in the commission. The revenues for such purpose, constituting the state highway fund, were derived in part from aid furnished by counties and road districts. Sections 3, 6, and 7, chap. 186, Gen. Laws 39th Leg., 1925 (R. S. arts. 6674c, 6674f, 6674g). Other sources of revenue included three-fourths of the state gasoline tax, and designated portions of motor vehicular license taxes (R. S. art. 6675 and amendments thereto [see Vernon’s Ann. Civ. St. art. 6675a — 1 et seq.]) and ■federal aid.

For a number of years past there had been an increasingly growing demand that counties and road districts be relieved of ail expense in connection witli state highways, and that some equitable reimbursement be made for what they had already expended in that regard. The need for such relief and reimbursement was regarded by the Govern- or as sufficiently acute to require that the Legislature be called in Special Session on August 30, 1932, to enact legislation to that end. The call recited that "it was highly important that: “To the limits of the constitutional power of the Legislature, the taxpayers of Texas shall be relieved, at the earliest possible moment, of the onerous and unfair burden of taxation now resting upon them by which their homes and farms and ranches and other properties are taxed to support road bond issues, heretofore voted by counties and road districts for the purpose of aiding in constructing roads that are now state highways, which burdens ought to be assumed and paid by those using the highways, out of the State Highway fund.”

And the purpose of the call in this regard was stated to be: “To pass legislation providing that outstanding issues, of road bonds, heretofore issued by counties and road districts, for the purpose of aiding in constructing roads which are now state highways shall be assumed by the State; and that all taxes required to be levied upon property within such counties or road districts to support such bonds, shall not be collected by such counties or road districts from the taxpayers therein for this year, 1932, or succeeding years, but that the principal and interest on siaid bonds, as the same may accrue, shall be paid out of the State Highway fund.”

It was under this call that chapter 13 was enacted.

The first section of the act (Vernon’s Ann. Civ. St. art. 6674q — 1) sets forth its general purposes. In substance, it recognizes that the contributions of counties and road districts to the construction of state highways were in the interest of the “general welfare, settlement and development of the .entire State,” that such counties and road districts had thereby “performed functions resting upon the State,” and that “both a legal and moi-al obligation rest upon the State to compensate and reimburse” them.

By section 3 of the act (Vernon’s Ann. Civ. St. art. 6674q- — 3) sections 3, 6, and 7 of chapter 186,' Gen. Laws 39th Leg. (R. S. arts. 6674c, 6674f, 6674g), above alluded to, providing for county and road district aid, were expressly repealed.-

Sections 4 and 5 of the act are quoted in full above.

Sections 6 to 9 of-the act, inclusive (Vernon’s Ann. Civ. St.'arts. 6674q — 6 to 6674q- — ' 9), provide for the reimbursement; allocate for that purpose, as a “County.and.District Highway Eund,” one-fourth of the proceeds of the gasoline tax; set up the machinery to effectuate the reimbursement through a. “Board of County and Road District Indebtedness,” which the act creates; and make two specific appropriations from the “County and District Highway Fund,” to be applied by the board for the benefit of county and road districts equitably entitled thereto, one appropriation covering the balance of the present fiscal year ending August 31, 1933, and the other covering the remaining four months of 1933.

Section 11 of the act (Vernon’s Ann. Civ. St. art. 6674q — 11), repeals “all laws and parts of laws in conflict herewith”; and the emergency clause reads: “The fact that counties and defined road districts of this State should be immediately given the compensation and reimbursement provided for in this Act and that such relief and reimbursement cannot be given them without the passage of this Act creates an emergency and an imperative public necessity that the Constitutional Rule requiring bills to be read on three several days in both Houses be suspended, and such Rule is hereby suspended, and this Act shall take effect and be in force from and after its passage, and it is so enacted.”

There is no express repeal of the appropriation, but it is contended by appellees that the provision of section 5 to the. effect that the state highway fund shall be subject to future appropriation is inconsistent with an already existing appropriation. The inherent- right of the Legislature to make a future appropriation of the fund already appropriated is urged as rendering section 5 supererogatory if the prior appropriation were not intended to be repealed; and under the rule that words and provisions embodied in a statute are presumed to effectuate some purpose, they must therefore be given effect other than that which would result from their entire omission. Though couched in our own language, we believe this is a fair and accurate statement of appellees’ contention on this point. With this contention we are unable to agree.

Statutes are often -but declaratory of the ■law as it exists at the time of their enactment. In fact, the earlier Codes were largely, and some of them probably entirely, but declaratory of customs which constituted the law of the land. Our -own statutes are replete with literal enactments of constitutional provisions and declarations of the common law. Of these it might as justly be said that the Legislature was engaged in doing a useless thing — in performing a supererogatory act.

Section 5 of chapter 186, Gen. Laws Reg. Sess. 39th Leg. (Vernon’s Ann. Civ. St. art. 6674e), reads: “All moneys now or hereafter deposited in the State Treasury to credit of the ‘State Highway Fund,’ including all Federal aid moneys deposited to the credit of said fund under the terms of the Federal Highway Act and all county aid moneys deposited to the credit of saig fund, under the terms of this Act shall be subject to appropriation for the specific' purpose of the improvement of said system of State Highways by the State Highway Department.”

It will be observed that section 5 of ■ chapter 13 (Vernon’s Ann. Civ. St. art. 6674q —5) is a literal copy of art. 6674e, Vernon’s Ann. Civ. St. with the portion we have italicized omitted. If it did no more than to subject the stated fund to future appropriation, it was equally as useless and unnecessary-as section 5, chapter 13. It is not contended that this article repealed any existing appropriation, or did more than to allocate all moneys present and future deposited to the “State Highway Fund” to the “improvement” of the “System of State Highways by the State Highway Department.” As such allocation we think it had the manifest purpose of removing such fund, beyond all doubt or peradventure, from the general revenue fund of the state and of devoting it, but not appropriating it, to the stated purpose. It served the double -purpose of a declaration of policy and a direction to the state treasurer that the fund was not to be invaded for purposes other than those named in the article.

The clear purpose of section 5 of chapter 13 was to repeal the omitted portions of article 6674e. It but continued in effect the previous allocation, omitting therefrom the previously included county-aid fund. It may be urged that this was unnecessary since articles 6674c, 6674f and 6674g, which provided for such aid, were'expressly repealed in sec-3 of chapter 13. Rut even so, a re-enactment of article 6674e, so as to conform, through the omitted -portions, to the other provisions of chapter 13, cannot justly be classed as an altogether purposeless and useless act.

Even from a strictly grammatical viewpoint the future tense in the phrase “shall be subject to appropriation” does not necessarily apply to “appropriation.” It could as correctly be applied to the word “subject” The phrase is clearly susceptible of this interpolation, “shall at all times hereafter be subject to ap-priation made and to he made’’ To give it the interpretation contended for by appel-lees it should be interpolated to read, “shall be subject only to appropriation hereafter made.” Viewed in the light of all the surrounding circumstances, we are clear in the view that the former and not the latter interpolation expresses the legislative intent.

In speaking upon the subject of repeal by implication where the later enactment contained the general provision repealing all laws and parts of laws in conflict therewith, Chief Justice Gaines, writing for the Supreme Court, said: “It is clear that there is no express repeal; that is, the provision in question is not directly pointed out as expressly repealed. But since the effect of a general provision repealing conflicting; laws evinces that the Legislature had in mind that something was to be repealed, the ‘courts will be less inclined against recognizing repugnancy in applying such statutes, while, in dealing with those of the other class, they will, as principle and authority requires, be astute to find some reasonable mode of reconciling them with prior statutes so as to avoid a repeal by implication.’ Sutherland Stat. Const, p. 199a. But even with such a provision repealing all conflicting laws, the courts must find a repugnancy between the old provision and the new before they can find that the latter repeals the former.” Gaddes v. Terrell, 101 Tex. 574,110 S. W. 429.

We find no repugnancy between the twoi acts.

But there are other and cogent reasons for rejecting the repeal construction.

Canons for the construction of statutes have but a single objective — the discovery of the true legislative intent. One of these canons, which holds a position of prominence and is employed with great frequency, is to the effect that the object sought to be accomplished by the enactment is a consideration of prime importance.

The purpose of chapter 13, as clearly set forth in the above quotations from the Governor’s proclamation and in section 1 and the emergency clause of the chapter, is the relief of the taxpayers from burdens imposed by obligations incurred in the construction of state highways. Otherwise there is not the slightest intimation in the chapter or elsewhere of any purpose or design to affect in any degree the orderly operations of the highway department under existing law, practices, and policies, or to impede the improvement of the st’ate highway system by inhibiting all construction not theretofore -contracted. We say “otherwise,” because the chapter does expressly withdraw from the state highway fund one-fourth- of -the gasoline tax and allocates it to the -purposes of the chapter. To this extent the amount of the original appropriation is reduced, and as regards this withdrawal the appropriation may be said to be repealed by necessary implication.

Although not urged by appellees, the repeal for which they contend would also apply to all maintenance not already contracted. Additionally a very serious question would be presented whether all other items appropriated for the department, including all salaries of employees, would be embraced within the repeal. Appropriations for the - department are made in the same act which makes the appropriation for further construction, and it expressly provides that they all “shall be paid out of the State Highway Fund.” If by making all moneys then or thereafter deposited to the credit of that fund subject to future appropriation, section 5 of chapter 13 repealed one appropriation from the fund (future construction), then it would seem inexorably to follow that all appropriations from the fund, for which the state was not already obligated by contract, would in like manner be repealed. Such construction of section 5 would, as appellants contend, create a virtual condition of chaos in the department; a purpose to bring about which result can by' no fair process of reasoning be deduced from the wording of the act or the legislative intent. “The reaction of an impartial mind is little short of instinctive that the deduction is unreasonable and cannot have been intended by the framers of the statute.” Woolford Realty Co. v. Rose, 286 U. S. 319, 52 S. Ct. 568, 571, 76 L. Ed. 1128.

Appellants urge the three following propositions in support of their contention that the second count of appellees’ petition is insufficient to sustain the sought relief:

“1. Since appellees did not allege facts constituting an arbitrary or fraudulent abuse of the discretionary power vested by law in the Highway Commission to determine the probable revenues available during the fiscal year ending August 31, 1933, for the construction of highway projects, the Court erred in granting the temporary injunction appealed from in this cause.”
“2. Since the petition of appellees, upon •which the temporary injunction involved herein was granted, fails to show such an abuse of discretion by the Highway Commission as to render any contemplated contract illegal, appellees do not have a sufficient interest in the subject matter involved to maintain the instant suit, and the Court erred in granting the temporary injunction.”
“3. Since the material facts, both as to the outstanding and contemplated contracts of the Highway Department and the probable revenues accruing to the Highway Fund for the fiscal year ending August 31, 1933, are based upon estimates of the appellees, which estimates, in turn, are based upon information and belief, the conditional verification, upon information and belief, of such petition is insufficient, and the trial court erred in granting the temporary injunction based thereon without notice or hearing.”

These propositions are so interrelated that we will consider them together. As preliminary to such consideration the following should be observed:

(1) Appellees do not contend, nor do we think it could reasonably be contended, that the appropriation in question was not a valid, effectual appropriation of all moneys that should be deposited to the credit of the state highway fund during the fiscal year ending August 31, 1933.

(2) In determining the amount for which-the commission could contract beyond such items as were definitely fixed by the Legislature, it is manifest that the total available revenues to be derived from the various appointed sources would have to be estimated. The amount of these revenues was from their very nature uncertain and incapable of precise estimate in advance. They must, however, of necessity be contracted against in advance. No standard or criterion for estimating them is prescribed by law; nor is there any express designation of the official, board, or agency to make such estimate. It therefore follows necessarily that the highway commission is vested with such authority in the general discharge of its important duties ; and that in the exercise of such authority it is vested with the discretion of adopting such reasonable' methods, standards, and criteria as in its judgment are sound and appropriate. See, in this regard, Billeter & Wiley v. State Highway Commission, 203 Ky. 15, 261 S. W. 855; State Highway Commission v. Coleman, 236 Ky. 444, 33 S.W.(2d) 318, 319.

(3) Appellants do not contend that appel-lees’ interest in the state highway fund as taxpaying contributors thereto is not such as would entitle them to maintain an action to enjoin the state officials charged with the duty of its disbursement from performing any act which would be tantamount to an illegal diversion or misappropriation of the fund. See Terrell v. Middleton (Tex. Civ. App.) 187 S. W. 367 (error refused); Sherman v. Cage (Tex. Civ. App.) 279 S. W. 508; Hathaway v. Munroe, 97 Fla. 28, 119 So. 149. Their contention in this regard is that to constitute such illegality the acts complained of must amount to such a palpable abuse of the discretion vested in the commission as to render them arbitrary or fraudulent. This test is the same as that which appellants contend in their first proposition above is the only proper basis for the right to the relief sought. It will be seen, therefore, that the asserted proper bases for litigable interest in the subject-matter and for a maintainable cause of action are the same.

(4) Appellees expressly disclaim, in both their petition and brief, any attempt to invade the discretionary powers of the commission; “on the contrary,” the brief reads, “the threatened contracts are sought to be reprobated because they are illegal — made or threatened to be made without authority of law, and therefore not a place for the exercise of any sort of discretion.”

The main controversy, therefore, as regards the second count of the petition revolves around the question whether it unequivocally alleges facts which, if true, constitute an illegal abuse of power by the commission.

The specific allegations of the petition supporting its general allegations to the effect that the appropriation for the department had already been exhausted, read:

“12. For the purpose of being as specific as is possible, this plaintiff would show that the funds available to the Commission for all purposes under the law, for the fiscal year, ending August 31,1933, are approximately as follows:
“Estimated receipts from all state sources upon the basis of actual receipts for previous years to August 31, 1933, $21,126,000.00.
“Federal Aid Available, $1,300,000.00.
“Amount cash in State Treasury, $8,123,-432.35.
“Total Available Funds for fiscal year, ending August 31, 1933, $30,549,432.35.
“The foregoing estimate of availaljle funds is predicated upon the comparative value of previous receipts as a basis for estimate and the same is believed and alleged to he a just, fair and reasonable statement of the available funds in controversy.
“As against said above estimated total of available contract funds for the fiscal year, ending August 31, 1933, plaintiff would show that there should be charged and held against the same, the following items and amounts which plaintiff alleges upon information derived from authentic sources, which he believes to be true and so alleges to be accurate and true, the following:
“Highway Construction contracts outstanding, unpaid, $17,173,748.23.
“Estimated one-fourth Occupation Tax on sales of gasoline to the County & Road District Highway Fund, $S,200,000.00.
“Estimated cost of Highway Maintenance to end of fiscal year, $8,700,000.00.
“Equipment to end of fiscal year, $533,334.-00.
“For general administration, parole, etc., $487,391.70.
“Motor patrol and miscellaneous to end of fiscal year, $350,000.00.
“State Highway Building contract, $250,-000.00.
“Total estimated charges and liabilities for fiscal year, ending August 31, 1933, $35,694,-473.93.
“Difference between estimated assets and liabilities, deficit, $5,145,041.58.”

The affidavit to the petition reads:

“I, James E. Ferguson, one óf the plaintiffs named in the foregoing petition, whose name is subscribed to the foregoing petition, upon my oath do say that I have read over the foregoing petition and that the allegations of fact therein are true and correct and that where facts or matters are alleged upon information and belief or upon estimate, that I verily believe the same to be true.'”

As respects at least two of the items in the tabulated estimates, no arbitrary abuse, if any abuse at all, of discretion is shown. The estimated receipts from all state sources is based “upon actual receipts for previous years to August 31, 1933.” The statutes do. not prescribe the basis for such estimates, and there is no rule of law which would require the commission to limit their estimates to the amount of receipts for previous years. It is not alleged that the commission adopted this basis, nor is it alleged that the commission’s estimate on this item was. Before the action of the commission could be classed as illegal, it would have to be shown by specific fact allegation that the basis it employed in this matter was so unreasonable as to amount to an arbitrary abuse of its delegated discretion.

The other item is “Estimated cost of Highway Maintenance to the end of the fiscal year.” It is not alleged whether this item had already been contracted either in whole or in part, nor is it alleged whether this estimate was that of the commission itself. The amount of future maintenance, other than that already contracted, was clearly a discretionary matter with the commission.

The amounts of all of the disbursement items are alleged “upon information derived from authentic sources which he (af-fiant) believes to be true.” What such sources are is not alleged, and the allegations afford no means for their ascertainment. “Authentic” in some of its uses has a technical meaning, but when applied to sources of information in the instant connection, neither the law nor the lexicographers give it a meaning which would require its acceptance here as conclusive. In a matter of this gravity we are not at liberty to resort to surmise to ascertain the meaning of the pleader. The allegation, and the supporting affidavit to the petition, amount to no more than the ordinary verification upon information and belief, which by an unbroken line of authority in this state is held to be insufficient compliance with R. S. art. 4647 to support a writ of injunction. Graham v. McCarty, 69 Tex. 324, 7 S. W. 342; Spinks v. Mathews, 80 Tex. 373, 15 S. W. 1101; Clarey v. Hurst (Tex. Civ. App.) 136 S. W. 840; Kopplin v. Ludwig (Tex. Civ. App.) 170 S. W. 105; Ginther v. De Zabalgoitio (Tex. Civ. App.) 170 S. W. 793; White v. Ferris (Tex. Civ. App.) 186 S. W. 367; Butler v. Remington (Tex. Civ. App.) 230 S. W. 224; West Texas Abstract & Guaranty Co. v. Stolte (Tex. Civ. App.) 256 S. W. 632; City of Arlington v. Dallas-Fort Worth Safety Coach Co. (Tex. Civ. App.) 270 S. W. 1094; State Banking Board v. Smyth (Tex. Civ. App.) 2 S.W. (2d) 536.

It may not be amiss at this point to advert to the fact that in support of the sufficiency of the second count of the petition, ap-pellees invoke the rule that as against a general demurrer every reasonable intendment is indulged in favor of the sufficiency of the pleading. This is the general rule, but it does not apply to applications for injunction. There, the rule is that “the averments of material and essential elements must be sufficiently certain to negative every, inference of the existence of facts under which petitioner would not be entitled to relief.” Gillis v. Rosenheimer, 64 Tex. 246; Birchfield v. Bourland (Tex. Civ. App.) 187 S. W. 422; Grayson County v. Harrell (Tex. Civ. App.) 202 S. W. 160; Miller v. Ballinger (Tex. Civ. App.) 204 S. W. 1173; Emde v. Johnson (Tex. Civ. App.) 214 S. W. 575, 578 (error refused); Wilkening v. Wolff (Tex. Civ. App.) 220 S. W. 598.

Manifestly this rule should apply where the sole basis of the trial court’s order is the allegations of the petition, which in such event perform the functions of both pleading ■and evidence. This is the underlying and manifestly sound basis for the construction of R. S. art. 4647, which requires that “the verification must be direct and in such positive terms as would sustain a charge of perjury or false swearing, if the verification should prove to be false.” City of Arlington v. Dallas-Port Worth Safety Coach Co. (Tex. Civ. App.) 270 S. W. 1094, 1095, and authorities therein cited.

The highway department is one of the most important departments in the state .government. Especially is this true as regards the volume of state revenue it disburses and the vast interests that are vitally concerned in its proper functioning. It would probably be difficult to find a citizen of the state who has not a direct concern in the affairs it administers, and this is certainly true as re'gards taxpaying citizens. To the members of the commission and in large measure to its chief engineer are intrusted responsibilities of outstanding importance. To meet these responsibilities they are invested with a wide discretion. This is of necessity so from the very nature of their duties. To properly discharge such duties they would perforce be required to make careful investigation from all competent and reasonably available sources in determining the bases for their action and for estimates from which to ascertain the bounds of their authority. As public officials they are presumed to exercise their authority and perform their duties honestly, conscientiously, and efficiently. The commission is required to keep records of all its doings (R: S. arts. 6665 and 6666); to maintain an office “at Austin where all its records shall be kept” (R. S. art. 6663); to submit biennial reports to the Governor and Legislature (R. S. art. 6665); “these records shall be open to public inspection” (R. S. art. 6665). Much, if not all, of the data embraced in the items listed in the petition should properly be shown by these records which are readily accessible to any one seriously interested in their contents. In matters of judgment touching the commissioners’ functions, theirs, and not that of. another, is supreme. Certainly their acts other than those of a purely ministerial nature should not be stayed at the hands of the-courts, and the important functions of the department thereby impeded or impaired, except upon verified allegations of fact showing unequivocally that they are exceeding the bounds of their legal authority; and as certainly: Their acts “in the exercise of an honest discretion, must Be respected when untainted by fraud and unassailed on account of accident or mistake occurring in their performance, or such abuse of discretion as under the authorities would avoid the same. Heathman v. Singletary (Tex. Com. App.) 12 S.W.(2d) 150; Porter v. Johnson (Tex. Civ. App.) 140 S. W. 469; Smith v. Ernest, 46 Tex. Civ. App. 247, 102 S. W. 129.” Nairn v. Bean (Tex. Com. App.) 48 S.W.(2d) 584, 586.

Upon these considerations we sustain appellants’ three propositions above quoted.

The order appealed from is set aside, and the temporary injunction is dissolved.

Order set aside; injunction dissolved.


source: Caselaw Access Project

author: 'CONNER, C. J.

license: Public Domain

text:
    CORNUTT v. STATE ex rel. ALEXANDER et al.
    No. 12813.
    Court of Civil Appeals of Texas. Fort Worth.
    Oct. 8, 1932.
    Rehearing Denied Nov. 7, 1932.

      Taylor, Muse & Taylor, of Wichita Falls, for plaintiff in error.
    Earl P. Hall, of Henrietta, and W. E. Fitzgerald, of Wichita Falls, for defendants in error.
   'CONNER, C. J.

This appeal is from a verdict and judgment ousting plaintiff in error from the office of county commissioner. The action is founded upon article 5973 of the Revised Statutes, which reads: “By ‘official misconduct,’ as used herein with reference to county officers, is meant any unlawful behavior in relation to the duties of his office, wilful in its character, of any officer intrusted in any manner with the administration of justice, or th'e execution of the laws; and includes any wilful or corrupt failure, refusal or neglect of an officer to perform any duty enjoined on him by law.”

Plaintiff in error was the duly elected and acting county commissioner of precinct No. 2, Olay county, and it is alleged by the state: “That as said county.-commissioner of said precinct No. 2, and being .responsible as aforesaid and under the law for the proper expenditure and proper certification and representation as to persons entitled to receive public money upon his order in said Precinct No. 2, he has been guilty of gross carelessness, bad faith and of official misconduct in the discharge of his duties, and has wilfully and corruptly neglected to faithfully perform the duties required of him. as said county commissioner, in this, towit, that sometime during the month of May, or June, 1931, the exact time being unknown to plaintiff and re-lators, he, the said W. E. Cornutt, wrongfully issued certain instruments called time checks for the payment of money — or for the procurement of a county warrant for money to be paid on said warrant, out of the road and bridge funds of Clay County, Texas, which said time checks were directed to the Commissioner’s Court of Clay County, Texas, certifying under the hand of the said defendant, W. E. Cornutt, that certain work had been performed on the roads and bridges in said Commissioner’s Precinct No. 2, which said time checks were given to one Ulys Tripp or to the Continental State Bank of Petrolia, Texas, each being in the sum of $25.-00 each, and bearing date of June 30th, July 80th, August 30th, September 30th and October 30, 1931, respectively; that the said defendant W. E. Cornutt, on said time checks certified that the statement of work done as set out in each of said time checks was correct and that the work was satisfactorily done; when, as a matter of fact, and plaintiff charges the facts to be, that said time cheeks were not given for. labor or work performed by the said Ulys Tripp, who was then an employee of the said county under the supervision of said defendant and working by the month at a monthly salary during said named months of June, July, August, September and October, 1931, as aforesaid, and that no work was ever performed for which said time checks were given, and that the said Ulys Tripp was the beneficiary by reason of said cheeks which certified that he, Ulys Tripp had performed the labor and was entitled to the money stated therein.”

So far as necessary to state,- all jurisdictional facts were admitted to exist. It was also admitted that the plaintiff in error, W. E. Cornutt, was the duly elected qualified and acting county commissioner of precinct No. 2 of Clay county, Tex., for the term of two years from and after the 1st of January, 1931, and as such took over and exercised control of all public road workmen, machinery, tools, etc., in said precinct with the general powers and duties of the commissioners as provided by statute. It was shown by the testimony of the county auditor, George Alexander, that the day laborers were compensated for their labor by what is termed “time checks” issued by the commissioners charged with the duty of supervising the workmen and determining the amount of labor done. These time checks or certificates were handed to the men in payment of the time put in on the roads. The men were required to bring them in person to the auditor for approval. If approved, they were then presented to the commissioners’ court, and if approved by that court a warrant was issued payable by the county treasurer for the amount specified. The evidence shows that one Ulys Tripp, who had worked under plaintiff in error on the public roads in precinct No. 2, applied in Juno or July, 1931, to the president and cashier of the Continental State Bank of Petrolia for a loan of $100. The bank refused to grant the application for the loan unless the plaintiff in error, Oor-nutt, would also sign the note as surety. While the note in terms did not so provide, it was agreed that Tripp was to pay it in installments of $25 a month, and the time checks in question were thereupon written and signed by the plaintiff in error and delivered to the cashier of the bank, who attached them to the note.

In answer to questions as to what was said at this time, the president of the bank testified:

“Yes, I told him (Cornutt) that if he would give me some checks that it was an evidence that he was to pay this at $25.00 a month I would attach them to the note. At the same time he asked me if I would hold them and permit him to come back and pay them off without sending them in to the county and I told them I would do that. * * *
“Q. Now that being true, did Mr. Cornutt at that time have anything to say, Mr. Perkins, with reference to the cashability or the giving of these time checks as being an obligation against Clay County? Tell the jury what was it he asked you to do, if anything? A. I just inferred from what was said and asked that they were not so regarded at that time because the work had not been performed; I agreed to hold these checks and this $25.00 was payable monthly. * * *
“Q. Did you have any purpose or intention «£ sending these time checks in on the day that they were given there as evidence of work or labor performed? A. No, I didn’t, because I didn’t do it; I held them and gave them every chance in the world to be paid. * ⅜ *
“Q. Did you ask for these (the time checks in question)? A. Yes.
‘“Q. Why did you ask them if their note was good? A. Just as evidence it would be paid like that.
“Q. Couldn’t you have said on the note that it would be paid $25.00 a month? A. Could have, yes.
“Q. Did you know at that time that these things were dated ahead? A. Yes. * * *
“Yes, I asked about his working; I didn’t ask about his dying. Yes, I said to him, I said, ‘Now, you are sure you are going to keep this fellow on?’ and he said, ‘Yes, he is on regular.’ ”

Plaintiff in error testified, among other things, that he applied to Mr. Perkins, president of the bank, in behalf of Tripp, and further that Mr. Perkins said:

“I will let him have the money if you will sign the note with him. He is working for you and going to continue to work for you and if you will sign the note with him and put, up some time checks to just assure me that his payments will be paid on his note in this way, to show that he is to pay $25,00 a month, I will let you have it.
“Q. Did you go back and report that to Tripp? A. I did that night when he came in and he agreed to pay it at $25.00 a month.
“Q. Now in that same conversation, I want to get what was said about the giving of those time checks. A. Here is what Perkins said: T would let you have the money with your signature — I will let you have the money with your signature on the note — ’ I had borrowed from him before — -‘but as the boy is working for you,’ he says, ‘would you mind making time checks for $25.00 a month just to show how it is to be paid monthly here on his note?’ And I said, ‘well, here is the thing about it: I wouldn’t mind doing that but under this consideration that these checks are never to go to the Commissioners’ Court for collection and I would not consider them as collateral; if you consider them as collateral I would not put them up. The boy is to pay his note $25.00 each month.’
“Q. What did he say in regard to that? A. Mr. Perkins?
“Q. Yes. A. He said he would make the loan under those considerations. * * *
“A. The way I understood Mr. Perkins he merely wanted those time checks there to show the time of each month and they wasn’t to be kept as security on his note or wasn’t going to the commissioner’s court; that’s the way I understood it.”

It further appears without dispute that the workman Ulys Tripp worked for the county under the direction of appellant at a monthly salary of $100 a month; that after having paid the first installment of $25, he defaulted in the four succeeding payments, and that Mr. Perkins, the president of the bank, without the knowledge or direction of appellant, proceeded to deliver the time checks to the auditor for his examination, approval, and submission to the commissioners’ court, according to the usual course. When appellant was informed of this, he, with Tripp’s consent, secured from the commissioners’ court a warrant for $100 due Tripp in payment for his monthly salary and with it went to the auditor and deposited it with him and took up the several time checks that had been given to the president of the bank. There is no evidence that even tends to show that the time checks at any of the proceedings became a legal liability of Olay county or that they were ever used or disposed of in any way other than as herein related. Appellant was explicit In his testimony that he did not have the purpose at any time that the time checks should, be perfected or used in any way other than to show the method or manner of Tripp’s payment of the bank’s note against him.

In addition to the terms. “incompetency” and “gross carelessness,” the court defined the terms “official misconduct” and “willful” as follows:

“By the term ‘official misconduct’ as used herein is meant any unlawful behavior in relation to the duties of his office, willful in its character, of any officer intrusted with the execution of the duties of his office; and includes any willful or corrupt failure, refusal or neglect of an officer to perform any duty enjoined on him by law.

'“By the term ‘willful,’ as used herein, is meant a conscious and intentional failure or refusal to perform the duties of his office or the conscious and intentional doing of acts in violation of his duty as an officer.”

Pretermitting a discussion of questions which relate to several grounds for removal upon which the action was based as immaterial by reason of the fact that the findings of the jury thereon were in plaintiff in error’s favor, plaintiff in error in various forms, as by exception to the petition, to the court’s charge, to the refusal of special instructions, and otherwise, complains of the judgment below more particularly upon error in the court’s definition of “willful” and insufficiency of the evidence to sustain the judgment. We think these objections must be sustained. The charge and the penalty assessed is highly punitive in character, amounting, as it does, to a forfeiture of an office of honor and emolument and the imposition of a stigma upon the good name of the commissioner. This being true, as we think it is, we think the court’s definition of the term “willful” was too general in character. It was apparently dictated by what was said in the opinion of Judge Will-son, of the Court of Criminal Appeals, in the ease of Brackenridge v. State, 27 Tex. App. 513, 11 S. W. 630, 631, 4 L. R. A. 360, or in the opinion of Judge Levy, of the Texarkana Court of Civil Appeals, in Beeves v. State, 258 S. W. 577. We think the following definitions are more properly applicable to actions of the present character:

“It is not every intentional act that is a willful or wanton act. When used in a penal statute, the word ‘willful’ means more than it does in common parlance. It means with evil intent, or legal malice, or without reasonable ground for believing the act to be lawful. In common parlance it is used in the sense of intention, as distinguished from accidental or involuntary. To make the killing of the sheep, therefore, a willful act, it must have been committed with an evil intent, with legal malice, and without legal justification. In a trial for malicious mischief in shooting a dog, evidence that the presence of dogs among defendant’s sheep at the time of the killing would have frightened the sheep, and caused the ewes, which were heavy with lambs, to lose them, was admissible to rebut the charge of malice and wantonness in shooting the dog. Caldwell v. State, 115 S. W. 597, 55 Tex. Cr. R. 164, 131 Am. St. Bep. 809 (quoting and adopting Thomas v. State, 14 Tex. App. 200).” 4 Words and Phrases, Second Series, 1295.

And again from the same volume, page 1294:

“ ‘A “willful” act is an obstinate, stubborn, perverse, act; and an act done willfully is one done stubbornly, by design, with set purpose.’ Claus v. Chicago Great Western By. Co., 111 N. W. 15, 17, 136 Iowa, 7 (quoting and adopting definition in Stewart v. Burlington & M. R. Co., 32 Iowa, 561). * * *
“ ‘Doing o remitting to do a thing knowingly and “willfully,” ’ said the Supreme Court, in Felton v. United States, 96 U. S. 702, 24 L. Ed. 875, ‘implies not only a knowledge of the thing, but a determination with a bad intent to do it or to omit doing it. “The word ‘willfully,’ ” says Chief Justice Shaw, “in the ordinary sense in which it is used in statutes, means, not merely voluntarily, but with a bad purpose.” Commonwealth v. Kneeland, 20 Pick. (Mass.) 220. “It is frequently understood,” says Bishop, “as signifying an evil intent without justifiable excuse.” 1 Crim. Law, § 428.’ See, also, Potter v. United States, 155 U. S. 446, 15 S. Ct. 144, 39 L. Ed. 214. Beferring to the word ‘willful,’ as employed in a penal statute, Judge Pardee, speaking for the Circuit Court of Appeals, in Roberts v. United States, 126 P. 904, 61 C. C. A. 427, quoted with approval the following ■language used by the Court of Appeals of Texas in Thomas v. State, 14 Tex. App. 204: ‘In a penal statute the word “willful” means more than it does in common parlance. It means with evil intent, or legal malice, 'or without reasonable ground for believing the act to be lawful. State v. Preston, 34 Wis. 675; State v. Clark, 29 N. J. Law, 96; Savage v. Tullar, Brayton (Vt.) 223; United States v. Three Railroad Cars, 1 Abb. U. S. 196, 28 Fed. Cas. 144 [No. 16,513].' In common parlance it is used in the sense of intentional, as distinguished from accidental or involuntary.’ ‘To the same purport,’ said Judge Pardee, ‘see Sam Lane v. State, 16 Tex. App. 172; Wood v. State, 16 Tex. App. 574; Shubert v. State, 16 Tex. App. 645. See, also, Owens v. State, 19 Tex. App. 249, where the court approved “by willfully, as used in this charge, is meant that the act was done without reasonable ground to believe the act of taking was lawful.” ’ It was said by Mr. Chief Justice Stayton, speaking for the Supreme Court of this state, in State v. Alcorn, 14 S. W. 664, 78 Tex. 393: ‘It is universally held that the word “willful,” when used in a penal statute, means with evil intent or Without reasonable ground to believe the act lawful.’ United States v. Praeger [D. C.] 149 P. 474, 478.”

See, also, Reeves v. State (Tex. Civ. App.) 258 S. W. 577; Thomas v. State, 14 Tex. App. 200.

We conclude that the court committed error in his definition of the term “willful,” and that the evidence is wholly insufficient to enable us to say that under the proper definition the jury’s finding would have been adverse to appellant. It is accordingly ordered that the judgment below should be reversed, and the cause remanded for such proceedings, if any, as the facts and law will warrant. All costs of appeal are to be taxed against the relators, M. M. Alexander, W. W. Barger, Orus O. Ross, Jr., J. T. Petro, J. A. Whitmore, and George S. Myers.

On Motion for Rehearing.

Appellee presented a forceful motion for a rehearing-in this case based on the contention that appellant on the trial did not object to the court’s definition of the terms “official conduct” and “willful,” and on appeal has not presented any assignment of error complaining of such definitions, and hence under well-settled rules that need not be here repeated we were without jurisdiction to reverse the judgment on the ground we did.

It is true that neither on the trial nor here did appellant in direct form or manner complain of the court’s definitions, but on original consultation it seemed plain that the judgment would have to be reversed on the grounds, if for no other, to wit, that the court refused to correct his charge to the jury in that it failed to require a finding that appellant had acted in bad faith and corruptly as charged. Appellant excepted to the charge on this ground, and we think the exception well, taken. The court also refused to give appellant’s special requested charge directing to find in appellant’s favor in event they found his issuance of the time checks, etc., was, as he explained, in good faith and without corrupt motives as his evidence tended to show. This also constituted error.

This being the condition, the writer was of the opinion that the faulty definitions were at the seat of the trouble; that, if corrected, the errors just above noted would surely be corrected on another trial, but that if no notice of the definitions was made the errors of definitions might again appear, there having been no objection thereto. The writer therefore went by indirection to the heart of the subject as set forth in our original opinion. The fact is, as the writer thinks, the court’s definitions constitute fundamental error and hence reviewable regardless of the want of exception and assignment of error. It is the statutory duty of the court in jury trials to deliver a written charge “on the law of the case.” The burden is on the plaintiff to establish the material allegations of his petition by a preponderance of the evidence. The plaintiff in this case expressly alleged that the acts complained of were done willfully and corruptly. The allegations were material without doubt if the authorities cited in our original opinion declare the law of the case. The charge was a general one, and it nowhere required a finding that appellant’s acts were done in bad faith and corruptly. Nor does the verdict of the jury or the judgment of the court contain such findings. Such condition of the record, in the opinion of the writer, constitutes fundamental error. See Tex. Jurisprudence, vol. 3, § 574; Speer’s Law on Special Issues, § 532.

However, the majority think it unnecessary to determine whether the error in the court’s definition is fundamental and hence express no opinion on that subject for the reason, in which the writer concurs, that the record shows that appellant in due time and form excepted to the court’s charge on the ground, among other things, that it “does not take into contemplation or does not in any wise take into consideration the defense pleaded by the defendant in that said purported time checks were only given as evidence' of the method and manner of the payment” (of the Tripp note), etc. We think this criticism of the charge well taken and that the court erred in failing to make the correction indicated.

The court also refused to give defendant’s special charge which in terms and effect submitted the defense that the time checks “were given only for the purpose of evidencing the time and amounts of the payments to be made by Ulys Tripp,” etc. We think it evidence that the court erred in refusing this charge.

It follows, all concurring, that the motion for rehearing should be overruled, and it is so ordered.


author: LESLIE, J.

text:
    STAR et ux. v. EVERETT.
    No. 1154.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 2, 1932.

      Frank Sparks, of Eastland, and L. H. Fle-wellen, of Ranger, for appellants.
    M. E. Lawrence, of Eastland, for appel-lee.
   LESLIE, J.

Upon the ex parte application of H. E. Everett, landlord, a receiver was appointed to take charge of the mercantile establishment owned and operated by M. F. Star and wife and known as the Star Drygoods Comr pany in Ranger, Eastland County, Tex. The Stars were tenants of Everett and .were alleged to be in arrears for rents payable from month to month on a store building. Hence this appeal is from an interlocutory order of the district judge appointing the receiver.

The main suit purports to be for about twenty months’ past-due rents at the rate of $82.50 per month, with a credit of ,$954.28 on the total rent. The allegations are general, not specifying the particular months for which the defendants are in default. Following this statement of the cause.of action, the plaintiff sought the appointment of the receivership in aid of the collection of the debt, alleging the grounds therefor in this language: “Plaintiff would further represent and show to the court that, while the defendant is insolvent he has assets with reasonable cash value of approximately the amount due as rent; that said assets consist of merchandise which is subject to being sold and the proceeds of said sale placed beyond the reach of this plaintiff and this court; that said stock can easily be moved beyond the reach of this plaintiff and this court; that this plaintiff has been informed that, since the defendants do not have funds with which to pay rents due under said lease, that they intend to move said goods, wares and merchandise; that same is in great danger of being, lost, removed and materially injured and wholly dissipated to the great loss of this plaintiff unless this Honorable Court appoints a receiver to take over and administer the assets of said defendants. That the defendants are unable to pay at this time and will be more so later unless a receiver of said property is appointed with ample powers to protect, operate and save the same.”

In response to the above pleadings, the receivership was granted on an ex parte hearing and without any notice whatever to the appellants. The receiver was appointed with sweeping authority to immediately take charge of the furnishings, fixtures, goods, and merchandise of the defendants to be found in said building; to obtain a purchaser for said property, report same to the court, etc. The appellants challenge the authority of the trial court to appoint the receiver under the circumstances alleged.

The authorities forbid the appointment of a receiver without notice unless facts are alleged showing that there is such pressing necessity for haste that the applicant will likely suffer irreparable loss if the appointment is delayed until notice is given to the defendant and a hearing had. The rule in such cases is well stated in Tardy’s Smith on Receivers (2d Ed.) § 731, as follows: “A receiver may be appointed without notice where the defendant is beyond the jurisdiction of the court or cannot be found, or where some emergency is shown rendering the appointment before the giving of notice necessary to prevent imminent and irreparable injury, waste, destruction, or loss, or when notice itself will jeopardize the delivery of the property over which the receivership is to be extended. The situation must be such as to be of such imperious necessity that it requires immediate action and of a character that no other protection can be accorded to the plaintiff. * * * The power to make such appointments should not be exercised in doubtful cases, or where sufficient protection could be afforded in some other way, such as, for instance, by means of an injunctional order until notice can be given and the application for a receiver heard and determined.”

Tested by the foregoing rule, the court below was not warranted in appointing the receiver in this case upon the ex parte hearing without notice to the defendants. The pleadings allege no facts setting forth such emergency or necessity for haste as would preclude notice to the defendants and a hearing upon the application. Such was the holding of this court in the recent case of Sanger Oil & Rfg. Co. v. Crisman, 53 S.W.(2d) 490, where numerous authorities are cited, and to •which we add San Antonio, etc., Co. v. Bexar-Medina-Atascosa, etc., Co. (Tex. Civ. App.) 49 S.W.(2d) 511.

While the proposition based upon the absence of notice under the circumstances is controlling in the disposition of this appeal, nevertheless it is the opinion of this court that the allegations of the petition by which the receivership is sought are in themselves fundamentally insufficient to warrant the granting of the relief prayed for, as may be seen from the authorities cited

For the reasons assigned, the judgment is reversed, and judgment here rendered that the receivership be vacated and set aside at the cost of the appellee;


author: BAROUS, J. ■

text:
    HUNT v. ROBINSON.
    No. 1270.
    Court of Civil Appeals of Texas. Waco.
    Nov. 10, 1932.
    Rehearing Denied Dec. 15, 1932.
    L. W. & B. D. Shepperd, of Groesbeck, for appellant.
    Reed & Cannon, of Groesbeck, and W. M. White, of Mexia, for appellee.
   BAROUS, J. ■

Appellant instituted this suit against ap-pellee to recover damages which be claims to have suffered in a fall from a scaffold while working as a carpenter. The record shows that appellee as a contractor had taken a contract to build a house and had employed three carpenters to work with him on the job. He did not take out any workman’s compensation insurance. At the time of the injury appellee was working in the garage on the premises making window frames. He instructed appellant to do some work on the outside of the building. In order to do the work appellant built a scaffold about five feet high across the west side of the house. While standing on the scaffold doing the work, the scaffold fell and resulted in appellant being injured. Appellee had nothing to do with building the scaffold; did not see it after it was built by appellant prior to the happening of the injury and made no inspection thereof. Appellant was an experienced carpenter and he built the scaffold.

In answer to special issues tbe jury found that appellant was injured while working on the scaffold by reason of it having given way; that the scaffold was unsafe and insecure and was insufficiently nailed. It found that appellee did not examine the scaffold prior to the time appellant was injured and did not see that it was insecure or insufficiently nailed. It further found that ap-pellee was not negligent in failing to examine the scaffold or in failing to see that it was sufficiently nailed prior to the injury and that appellee’s failure to make said examination was not a proximate cause of the injury. Based on said findings, judgment was entered by the trial court denying appellant, any recovery.

By his first assignment of error appellant contends that the answers of the jury to the two special issues submitted as to whether appellee was guilty of negligence in failing to inspect or discover tbe unsafe condition of tbe scaffold, are not supported by tbe evidence. By bis second assignment, appellant contends that the trial court should have instructed the jury that appellant was entitled to recover, as a matter of law, damages which would reasonably compensate him for the injuries which he received. By his third assignment, appellant contends that the court should have instructed the jury that, since appellee did not carry workman’s compensation insurance, any negligence on the part of plaintiff (appellant) short of an intentional injury to himself is not a defense available to the defendant (appellee). Appellant’s general contention under these assignments is that appellee owed appellant the duty of inspecting and supervising the work appellant was doing when he was injured and the failure to do so, as shown by the undisputed evidence, was negligence on the part of appellee. We overrule this contention. The law seems to be well settled that before an employee can recover damages against his employer he must affirmatively show that the injury was caused by some act of negligence on the part of his employer or the agent of said employer. West Lumber Co. v. Smith (Tex. Com. App.) 292 S. W. 1103, and authorities there cited. The facts in this ease show that appellant was an experienced carpenter; that he constructed the scaffold from which he fell; that he alone built it and was using and occupying it at the time same did fall; that appellee was not consulted about the method, manner, or way the scaffold should be built, knew nothing about it, and had nothing to do therewith, and there is no contention that any other agent or employee of appellee had any connection with the building of said scaffold or did any act which in any way caused same to fall. Ap-pellee under no phase of the testimony was responsible for the scaffold falling or for its defective construction.

Appellant’s remaining assignment complains of certain argument made by counsel for appellee to the jury. ' Appellee’s counsel stated, in substance, to the jury that before plaintiff could recover the jury must find that the defendant was guilty of negligence and that the defendant therefore wanted the jury to answer issues 5 and 9 in the negative, said two issues being the only ones which inquired as to whether appellee was guilty of negligence. Under the record in this case we think said remarks do not authorize a reversal of the judgment. The issues as submitted were few and simple. If the jury were of average intelligence, they knew that before appellant could recover any damages they must find that appellee was guilty of one or both of the acts of negligence submitted to them. Even if said argument was erroneous in letting the jury know what the result of their answers would be, we are of the opinion it is harmless in this case since, under the undisputed facts, the trial court would have been justified in giving a peremptory instruction to the jury to return a verdict for appellee.

We have examined all of appellant’s assignments of error and same are overruled. The judgment of the trial court is affirmed.


author: SMITH, J.

text:
    MUELLER et al. v. THOMAS.
    No. 8925.
    Court of Civil Appeals of Texas. San Antonio.
    Nov. 30, 1932.
    Jesse C. Poster, of Raymondville, for appellants.
   SMITH, J.

Appellants purchased a tract of land from appellee, for a consideration based upon certain admittedly false and material representations as to the location, value, and title of the land. The trial court directed a verdict in favor of appellants for a specific amount, much less than the sum claimed by appellants. Appellee has filed no brief, and has not in any way contested the -appeal.

Appellants allege in their petition that ap-pellee represented to them that he had just paid $50 an acre for the land, which was in fact worth $150 an acre, but which he was able to get at the reduced price through the intercession of a Mexican go-between, whom he paid $200 commission therefor; that all taxes had been paid on the land; that he had full clear title-to the land. The facts were, however, that appellee had but recently purchased the land at $18.50 an acre (instead of $50), its actual market being only $15 (instead of $150); that a substantial amount of delinquent taxes were due on the land (instead of being fully paid); that the title (instead of being clear in appellee) was claimed by another who had a suit pending therefor at the time, with lis pendens notice on record. Other material representations made at tlie time by appellee to appellants were shown to have been quite as false as those recited. The price paid for the land by appellants included $200 appellee claimed he had paid the Mexican as commission.

The trial court directed the jury to return a verdict of $525 in favor of appellants; this amount apparently representing the amount appellants had paid appellee to reimburse him for the alleged $200 commission, and back taxes appellants have paid on the land.

Appellants contend, and it seems properly, that they were entitled to recover the difference between the market value of the land at the time they purchased it and the price they paid for it on account of the admitted deceit of appellee. The court should have submitted to the jury the controverted issues of fraud, and such other issues as were necessary to develop the proper measure of damages under the case made by the pleadings and evidence.

To that end the judgment is reversed, and the cause remanded.


author: PER CURIAM.

text:
    BROWNING-FERRIS MACHINERY CO. v. THOMSON et al.
    No. 1370.
    Court of Civil Appeals of Texas. Waco.
    Nov. 25, 1932.
    Rehearing Denied Dec. 22, 1932.
    Leachman & Gardere, of Dallas, for relator.
    Kerr & Gayer, of San Angelo, for respondents.
   PER CURIAM.

This proceeding was instituted by relator, Browning-Ferris Machinery Company, a corporation, against respondents, W. S. Thomson and H. E. Fitzgerald, their attorneys, Eloyd Kerr and Douis D. Gayer, and die Honorable O. L. Parish, judge of the district court in and for the one hundred nineteenth judicial district of the state of Texas, to prohibit and restrain respondents, and each of them, from assailing the validity or interfering with the enforcement of a certain judgment recovered by relator against respondents Thomson and Fitzgerald in the district court of Dallas county which judgment on appeal to this court, was duly affirmed. Respondents H. E. Fitzgerald and W. S. Thomson, on March 14,19-29, by written contract purchased from relator certain machinery, and agreed to pay therefor the sum of $4,170, to secure which a lien was acknowledged in said contract. Relator, alleging that default in payment had been made, on the 21st of October, 1929, instituted suit against said -respondents in the district court of Dallas county to recover the remainder of the purchase price then unpaid and to foreclose said lien. They appeared and answered in said cause, and interposed certain specific defenses to any recovery by relator therein. Relator, on the 22d day of June, 1931, recovered a judgment against them for the sum of $3,216.62, with interest and costs of suit and for foreclosure of lien. They prosecuted an appeal from said judgment to this court. Said judgment was by this court affirmed on March 31, 1932, and on May 5, 1932, rehearing was denied. Application for writ of error was dismissed by the Supreme Court on July 19, 1932. The opinion of this court is published in Fitzgerald v. Browning-Ferris Mach. Co., 49 S.W. (2d) 489, et seq., to which reference is here made for the recital of material facts.

Respondent W. S. Thomson, at some time during the pendency of said appeal or prior thereto, filed a suit against relator in the district court of Runnels county in cause No. 3760 on the docket of said court, in which he sought to recover damages for an -alleged breach of warranty by relator of the machinery so purchased. The -original petition therein is not presented in these proceedings. Said Thomson, on or about the 27th day of August, 1932, filed in said cause his second amended original petition. He appeared as sole plaintiff, and relator was made sole defendant therein. He alleged therein that all the machinery so purchased was defective, inefficient, and wholly worthless for the purposes for which it was purchased. He also alleged that relator agreed to deliver said machinery promptly, and expressly warranted that the same was suitable for the purposes for which it was purchased, and would operate efficiently, and that said agreement and warranty were relied upon in entering into the contract for the purchase thereof. He further alleged a breach of both said agreement and said warranty. . He claimed damages for delay in delivery in the sum of $20,-000, and further items of damage arising out of said breach of warranty in the aggregate amount of approximately $120,000. He further alleged that said Fitzgerald and those interested with him in the purchase and attempt to operate said machinery had transferred, assigned, and conveyed to him, the said Thomson, ail the causes of action which they or either of them had against relator arising out of the purchase of said machinery and the attempt to operate the same. Said Thomson further alleged that relator had sued out an order of sale and execution on the judgment recovered by it against him and said Fitzgerald in the district court of Dallas county, as aforesaid, and had placed the same in the hands of an officer for service. He further alleged that, as a necessary incident to the establishment and collection of the several claims so sued for by him therein, he was entitled to an ancillary writ of injunction to stay the enforcement of the judgment so recovered against him and said Fitzgerald by the relator as aforesaid during the pendency of said suit, and to offset said judgment as -a credit on said claims. As special ground for such equitable relief, he alleged that relator did not have property in this state sufficient, over and above its liabilities and exemptions,'to satisfy on execution sale the claims so asserted by him. He further alleged that the contract upon which said judgment was recovered had been, by agreement between relator and Fitzgerald, varied and changed without his knowledge or consent; that such change had been fraudulently concealed from him; that said judgment had therefore been recovered by concealment, trickery, and fraud, and that relator should not be permitted to enjoy the fruits of such fraud, and said judgment should therefore be stayed until the rights of the parties incident to the entire transaction should be fully determined. He further alleged, in substance, that he was a contractor; that he was engaged in the execution of a large contract; that, though thoroughly insolvent (solvent), he was in financial straits, and the present enforcement of said judgment would prevent him from executing such contract, subject him to the payment of large Sums- as liquidated damages, and result in irreparable injury. The allegations of fact relied upon as ground for equitable relief were verified.

Said petition was presented to the judge of said court, and, upon the allegations therein contained, a temporary injunction as prayed for was granted.

Opinion.

The Constitution of this state provides, in substance, that the several Courts of Civil Appeals shall have appellate jurisdiction coextensive with the limits of their respective districts, which shall extend to all civil cases of which the district courts or county courts have original or appellate jurisdiction, and shall have such other jurisdiction, original and appellate, as may be prescribed by law. Constitution, art. 5, § 6. The Legislature, in pursuance of the authority conferred by said provision, has by statute authorized the several Courts of Civil Appeals to issue writs of mandamus and all -other writs necessary to enforce their jurisdiction. R. S. art. 1823. The power to issue writs of prohibition and injunction for the protection of such jurisdiction is conferred by said article. Hovey v. Shepherd, 105 Tes. 237, 242 et seq., 147 S. W. 224; City of Houston v. City of Palestine, 114 Tex. 306, 267 S. W. 663, 664, par. 1; Long v. Martin, 116 Tex. 135, 287 S. W. 404, 495, par. 1; Cattlemens Trust Co. v. Willis (Tex. Civ. App.) 170 S. W. 1115, 1117, par. 1; Reed v. Bryant (Tex. Civ. App.) 291 S. W. 605, 607, par. 1. The judgment of a trial court when duly affirmed on appeal becomes in legal effect the judgment of the appellate court so affirming the same. Halbrook v. Quinn (Tex. Civ. App.) 286 S. W. 954, par. 1; Reed v. Bryant, supra; Cattlemens Trust Co. v. Willis, supra. An application to a Court of Oivil Appeals for such a writ after affirmance by it of the judgment of the trial court and the issuance of mandate thereto invokes the original jurisdiction of such Court of Civil Appeals, and it may, by such procedure as it deems proper, ascertain the facts and determine therefrom the merits of any defenses urged against the issuance of the writ or writs sought in such application. R. S. article 1822; Long v. Martin, 115 Tex. 519, 285 S. W. 1075, 1077, par. 1; City of Houston v. City of Palestine, supra, 114 Tex. 306, 267 S. W. page 664, pars. 2 and 3; Quinn v. Halbrook, 115 Tex. 513, 285 S. W. 1079; Id. (Tex. Civ. App.) 286 S. W. 954, 955, par. 6. A Court of Oivil Appeals has authority, by issuance of such writ, to prohibit an attack by a court of inferior jurisdiction on the validity of its judgment or interference thereby with the due and lawful enforcement of the same. Hovey v. Shepherd, supra; Conley v. Anderson (Tex. Sup.) 164 S. W. 985, 986; Milam County Oil Mill Co. v. Bass, 106 Tex. 260, 163 S. W. 577; Rosenfield v. Campbell (Tex. Civ. App.) 276 S. W. 728, 729, 730, par. 1; City of Palestine v. City of Houston (Tex. Civ. App.) 262 S. W. 215, 219 et seq.

Relator’s judgment, .the enforcement of which has been enjoined, was based on a specific promise to pay a certain, sum of money contained in the contract between it and respondents Fitzgerald and Thomson for the purchase of said machinery. The same was a liquidated demand. Both said respondents were duly cited and appeared and answered in said cause. The demands sued oil by respondent Thomson in said cause No. 3760 pending in the district court of Runnels county are unliquidated, and are based on an allegation that the machinery so purchased was worthless and wholly without value, and on a further allegation that relator warranted the fitness and efficient operation thereof, and a breach of such warranty. Said defenses were available to respondents in relator’s suit by a plea of failure of consideration and an action in reconvention for damages. While they were not required to present the same in such suit, they were permitted to do so to prevent duplication. They elected not to avail themselves of such privilege. They, however, while reserving such defensés, contested a recovery by relator in such suit on various other grounds, and pursued such contest until motion for rehearing of application for writ of error was overruled by the Supreme Court. Approximately two years and six months were consumed in reaching the conclusion of that litigation. They now ask that the enforcement of said judgment be indefinitely stayed to await the adjudication of said claims in order that they may attempt to extinguish the same by their recovery, if any, thereon. Having failed to avail themselves of the statutory privilege accorded them of pleading failure of consideration and presenting a plea in recon-vention for damages alleged to have been sustained by such breach of warranty, they should be held to have waived any equitable right to stay the enforcement of said judgment merely to afford them an opportunity to litigate such demands. Reed v. Bryant (Tex. Civ. App.) 291 S. W. 605, 611, par. 8, and authorities there cited.

Respondents’ allegations which apparently were intended to charge as a ground for equitable relief the insolvency of relator, as hereinbefore recited, were wholly insufficient to do so. They do not conform to any accepted definition of insolvency. L. & H. Blum v. Welborne, 58 Tex. 157, 161, 162; Smith & Co. v. Ojerholm, 93 Tex. 35, 36, 53 S. W. 341; 32 C. J., p. 805, § 1; Id. p. 808, § 2; 17 C. J. p. 1377, §§ 4 and 5. The claims asserted by respondent Thomson were, as here-inbefore stated, wholly unliquidated, and therefore the true amount thereof incapable of verification. There was no attempt to verify the same. Such allegations were insufficient to justify interference with the enforce-ment of relator’s judgment.

Respondents have herein expressly disclaimed any attempt to diminish, challenge, or destroy relator’s judgment. On the contrary, they have expressly recognized the same as valid and final. They are therefore precluded from contending that the contract on which said judgment was rendered was so changed without the consent of respondent Thomson as to discharge him from liability thereon, or that such judgment was obtained by fraudulent concealment of such alleged change. While respondents’ allegations are insufficient in themselves to establish such change, they do show that, if any change was made, it was at the instance and request of respondent Fitzgerald, and therefore fully known to him before and at the time of the trial which resulted in said judgment. Respondents Fitzgerald and Thomson made a joint defense at said trial, and, if there was any concealment of the asserted change, it was on the part of Fitzgerald, because relator was under no obligation to disclose the same. Respondent Thomson in said cause No. 3760 in Runnels county as aforesaid claimed to be the assignee of all causes of action and damages sustained by said Fitzgerald arising out of said contract, and sought recovery thereon. Ee stands in part at least in the place occupied by Fitzgerald, and is in no position to complain. See, in this connection, Long v. Martin, 116 Tex. 135, 287 S. W. 494, 495, par. 2; Reed v. Bryant (Tex. Civ. App.) 291 S. W. 605, 610, par. 6.

Respondent Thomson’s allegation that he was at the time in financial straits of course constitutes no ground for staying the enforcement of relator’s judgment.

The relief prayed for in relator’s petition is therefore granted, and the clerk of this court is directed to issue a writ of prohibition, directed to the Honorable O. L. Parish, judge of the one hundred nineteenth judicial district of this state, directing him and his successors in office to vacate the writ of injunction heretofore issued in said cause No. 3760 on the docket of the district court of Runnels county, Tex., and entitled W. S. Thomson v. Browning-Perils Machinery Company, and restraining him and his successors in office from entering any other or further order in said cause or otherwise which would interfere with the proper execution of the judgment of the district court of Dallas county in the cause of Browning-Eerris Machinery Company v. H. E. Fitzgerald and W. S. Thomson, which judgment on appeal to this court was duly affirmed. Said clerk will also issue writs of injunction directed to and to be served upon the other respondents herein, restraining them and each of them, their agents, attorneys, and employees, and all persons claiming through or under them, or either of them, from instituting any other or further injunc-tive proceeding challenging the binding force of the judgment of this court in said cause, or the right of relator to proper judicial process to enforce the same. The costs-of this proceeding are adjudged against all the respondents herein other than the Honorable O. L. Parish, judge as aforesaid. Since he acted in a judicial capacity in' the premises, no costs are adjudged against him.


author: HICKMAN, C. J.

text:
    PLEASANT v. MIMS et al.
    No. 1022.
    Court of Civil Appeals of Texas. Eastland.
    Dec. 2, 1932.
    W. H. Graham, of Houston, for appellant.
    Thomas & McDonald, of Big Spring, for ap-pellees.
   HICKMAN, C. J.

Appellant instituted this suit against the children of S. Mims and wife, Mattie Mims, both deceased, on two paving certificates issued by the city of Big Spring to his assignor, Carl Pleasant. He did not pray for personal judgment against any of the defendants, but for judgment establishing the amount chargeable to each defendant as his interest might appear in the property involved, including interest and attorney’s fees, and for a foreclosure of his assessment lien upon the property involved in the suit against the respective interests of the defendants. At the conclusion of the testimony the court peremptorily instructed the jury to find for the defendants, and judgment was entered upon the verdict returned in obedience to such instruction. We cannot be certain from the record upon .what theory the peremptory instruction was given, but from the contentions of appellees as disclosed in the statement of facts and briefs, it would appear that the theory was either that no valid assessment had been made or that the property was the homestead of the defendants, and for that reason no lien was fixed upon their property. Briefly stated, the material facts established upon the trial were as follows: All the property was formerly the homestead of S. Mims and wife, Mattie Mims. The latter died in 1920 and the former in 1924. There were nine children born to them, all of whom are still living. After the death of Mrs. Mims in 1920, the father and some of the children continued to live upon the property. Three of these children were minors at the time of the death of their father, and two of them are still minors. After the death of S. Mims, the father, in 1924, the grandmother of the children, who had theretofore kept house for the father, continued to reside upon the property with said minor children and keep house for them. The grandmother died before the case was tried below, but the proceedings for the fixing of the lien were had between the date of the death of the father and that of the grandmother, at a time when the premises were occupied by the grandmother and some of the children, including the minors. In all the proceedings for the fixing of the lien, including the notice, ordinance, and certificate, the owner of the property was given as “S. Mims estate.” In support of the judgment below, appellees contend here, as they did upon the trial, that “S. Mims estate” is not a legal entity and the assessment was void because not made against, or notices-issued to any definite or ascertainable person or persons as owners^

We cannot sustain this contention. The requisites of the notice in such cases are set forth in section 9 of chapter 106, Acts of the First Called Session, Fortieth Legislature, 1927, brought forward in Vernon’s Annotated Texas Civil Statutes as article 1105b. It is not one of the requisites of a notice as there prescribed that the owner or owners of the property be named therein, and in section 6 of the same act it is provided that assessments against abutting property shall be a first and prior lien thereon and shall be a personal liability and charge against the true owners “whether named or not.” Since it was not necessary to the validity of the notice that the owner or owners be named therein, it follows that the designation of the owner as “S. Mims estate” was sufficient. This exact question was decided in Johnson v. Lindsay (Tex. Civ. App.) 30 S.W.(2d) 655. See, also, Elmendorf v. City of San Antonio (Tex. Civ. App.) 223 S. W. 631, reversed on other grounds in (Com. App.) 242 S. W. 185; Griffin v. City of Waxahachie (Tex. Com. App.) 276 S. W. 201.

Appellee relies upon the case of El Paso Bitulithic Co. v. Neill (Tex. Civ. App.) 266 S. W. 593. In that case there was a city ordinance providing that, in levying assessments, the city council shall “name the owner or owners at the time of such assessment, if known, or if not known, shall designate as unknown.” The notice failed to comply with the terms of the ordinance. The statutes (article 1094, R. S. 1925, and article 1105b, § 12, Vernon’s Ann. Civ. St.) expressly confer upon the governing body of a city the power to adopt rules and regulations governing the giving of notices of a proposed assessment. When such rules are adopted by a city, a compliance therewith is essential to the validity of a lien attempted to be fixed thereunder. In the instant case there is no showing of any resolution or ordinance by the governing body of the city of Big Spring providing for any character of notice further than that prescribed by statute.

In the trial court appellant saw fit not to seek a personal judgment against any of the owners of this property, but sought only to establish the amount of his claim and have same declared a lien on the respective interests of the owners, with an order of foreclosure as to each. Appellees insist that, by appellant’s failure to assert a personal indebtedness against them, he thereby forfeited his right to claim a lien against their property, for the reason that a lien cannot exist in the absence of an indebtedness. This exact question was decided by this court in Realty Trust Co. v. First Baptist Church of Haskell, 46 S. W.(2d) 1009, contrary to appellees’ contention. In that case we held that the owner of the certificate for street improvement assessment could not recover a personal judgment against the First Baptist Church of Haskell, because it was an unincorporated association and not a legal entity, but that the court could render judgment establishing the debt and foreclosing the lien against the property subject thereto, ■ notwithstanding its lack of power to render a personal judgment against the church as such. In Griffin v. City of Waxahachie, supra, the lien was established and foreclosed, although a personal judgment was denied. See, also, Elmendorf v. City of San Antonio, supra; Dewey v. City of Des Moines, 173 U. S. 193, 19 S. Ct. 379, 43 L. Ed. 665.

The defense of homestead will be considered, first, with reference to the adult children, and, second, with reference to the minors. Under the Constitution, art. 16, § 52, upon the death of the parents, their homestead descended to their surviving children without being subject to partition, so long as the guardian of the minor children might be permitted, under the order of the court, to use and occupy the same. The interests of the surviving adult children were not their homesteads. They did not reside on the property or use same as a homestead. These interests were not subject to the claims of general creditors of their father and mother, hut could be sold under execution to satisfy a judgment against such heirs. Bell v. Read, 23 Tex. Civ. App. 95, 56 S. W. 584; Gregg v. First National Bank (Tex. Com. App.) 26 S. W.(2d) 179; Caples v. Ward, 107 Tex. 341, 179 S. W. 856.

It was held in Harris v. Seinsheimer, 67 Tex. 356, 3 S. W. 307, that a judgment lien attached to the interest of an adult heir inherited in the homestead property of his father. That is determinative of the question here under review.

With reference to the rights of the minors, Mr. Nunn, in his recent text on “Texas Homestead and Other Exemptions,” well states the rule, as follows: “While the title to homestead property, when there are surviving minor children, passes to the heirs or devi-sees, free from all debts of the deceased, except such as constituted a valid lien thereon, as against the deceased; yet in the absence of an order of the proper court, placing the property in the possession of the guardian as homestead for the minors, the property is not exempted from the payment of the debts of the minors, properly contracted for them, should they own the property, or an interest therein, as heirs or devisees of the deceased parent.” Nunn on Exemptions, chap. 8, § 10, pp. 249, 250. This statement from the text is well supported by the decision of the Supreme Court in an opinion by the Commission in Ridling v. Murphy, 228 S. W. 165. In that case, as in the instant case, no order of the probate court had been made authorizing the guardian to occupy the homestead for the use of the minor children, but an order was entered authorizing the sale thereof for the benefit of the children. The question presented for decision was whether the proceeds of the sale of the property were exempt from the childrens’ creditors for the six months’ period following the sale. Clearly, if the property was homestead of the children, the proceeds were exempt by statute (article 3834) for a period of six months. The question was therefore sharply presented whether the property constituted the homestead of the minors in the absence of an order of the probate court permitting the guardian to occupy same for their use, and it was held that the proceeds of the sale were not exempt from the claims of the creditors of the minors, because the property was not their home- • stead. That decision is sound in principle; The statutes of descent and distribution make no distinction between adult and minor, heirs other than as to the possessory right of the surviving parent or guardian of the latter in the homestead. In case of the death of both parents, this possessory right through a guardian is not absolute, for, by the Constitution, it is dependent upon the judgment of the proper court as to whether it should be exercised. Ashe v. Yungst, 65 Tex. 631.

In the foregoing discussion of the homestead question we have assumed that the issue was raised by the pleadings. The briefs of the parties so assumed, and we have expressed our views thereon in view of the fact that the case must be retried. An inspection of the transcript discloses that the appellees filed only a general demurrer and general denial. There is in the transcript an answer filed by Clyde E. Thomas, as attorney ad litem for the unknown heirs of S. Mims, deceased, in which answer it was pleaded that a portion of this property was the homestead of the defendants. We are not advised by the record why this answer was filed. The unknown heirs of S. Mims were not parties to the suit, and there is no order in the record appointing a guardian ad litem for them and no occasion for such an order.

We cannot properly render judgment in this case. The record fails to show that the minors were before the trial court or that they are properly before this court for the purpose of having a judgment rendered against them. There is no order appointing a guardian ad litem for them, and they do not answer by guardian ad litem. No citation is in the transcript. They answer as adults the same as the other defendants. By article 2159, R. S. 1925, it was the duty of the trial court to appoint a guardian ad litem for them, and a judgment against them by this court without a guardian ad litem having been appointed by the lower court would be erroneous. Wallis v. Stuart, 92 Tex. 568, 50 S. W. 567; Butner v. Norwood, (Tex. Civ. App.) 81 S. W. 78; Grogan v. Spaulding (Tex. Civ. App.) 155 S. W. 1014; Kelly v. Kelly (Tex. Civ. App.) 178 S. W. 686.

The judgment of the trial court will be reversed, and the cause remanded.