author: ■LEDDY, J. OURETON, O. J.

text:
    CITY OF FORT WORTH v. GULF REFINING CO. et al.
    No. 1383—5981.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.
    R. E. Rouer, J. M. Floyd, and R. R. Young, Jr., all of Fort Worth, for plaintiff in error.
    John E. Green, Jr., and David Proctor, both ■of Houston, and P. O. Settle, David W. Stephens, S. F. Houtchens, and Houtchens & Houtchens, all of Fort Worth, for defendants in error.
   ■LEDDY, J.

Defendants in error, the owners and operators of a large number of drive-in gasoline filling stations in the city of Fort Worth, filed this suit in the district court to enjoin the plaintiff in error, the city of Forth Worth, from enforcing the provisions of an ordinance •which attempted to levy an annual license charge of $24 against each operator of such gasoline stations.

A trial before the court without a jury resulted in a judgment denying defendants in error the relief prayed for. Upon appeal,, the Court of Civil Appeals reversed the judgment of the trial court and rendered judgment in favor of defendants in error. 36 S. W.(2d) 285, 286.

The portions of the ordinance pertinent to-this controversy are sections 2, 3, and 5. They read as follows:

“Section 2. Be it further ordained: That, an annual charge of Twenty-four ($24.00) Dollars is here made against each and every gasoline station installed and making use of any street or sidewalk, or any portion thereof within the City of Fort Worth from and after the passage and publication of this ordi-' nance.
“Section 3. It shall be the duty of all persons, firms or corporations desiring a permit to establish and use a gasoline station on any street or sidewalk, or any part thereof or where any part of any sidewalk is used for the purpose of ingress or egress in connection with Such gasoline station within the City of' Fort Worth, to apply bo the Tax Collector of' the City of Forth Worth therefor, and to pay the annual charge provided for herein to said. Tax Collector, and upon said application being made, and the payment of the charge provided for herein, it shall be the duty of the-City Tax Collector to issue said permit.”
“Section 5. Any and all persons making use-of any of the streets and sidewalks-,' or any portion thereof, within the corporate limits-of the City of Fort Worth as a gasoline station, as provided for herein, from and after the passage of this ordinance without first paying the charges provided for herein, and having same inspected and approved by the City Fire Marshal, shall be deemed guilty-of obstructing said street or sidewalk, and upon conviction" thereof shall be fined in any sum not exceeding Fifty Dollars ($50.00), and. each day of such obstruction shall constitute a separate offense.”

The contentions made by defendants in error, which were sustained by the Court of' Civil Appeals, are these:

First, that the ordinance in question was-designed to apply only to gasoline filling sta-tioñs where a part of the street or sidewalk was used for the installation of a portion of the equipment of the station.

Second, that, if the ordinance he so construed as to apply to a gasoline station not using the streets or sidewalks for the installation of its equipment, it is unconstitutional and void, in that the Legislature is without power to authorize a municipality to levy a tax against a property owner for the exercise of his right of egress and ingress to' his property.

Third, that the ordinance in question in effect levies an occupation tax against defendants in error for the operation of gasoline filling stations, and is therefore void because the city is not authorized to levy such a tax, "in the absence of any levy of one by the state.

In construing the ordinance not to apply "to the type of filling stations operated by defendants in error, the Court of Civil Appeals .in its opinion says: “From a careful reading of the ordinance in question it seems to apply only to gasoline filling stations that ■are constructed where a portion of the sidewalk or street is used in installing same. ■* * ⅜ import of said ordinance, as a whole, indicates that appellee was attempting to pass an ordinance whereby it would charge private individuals for conducting gasoline filling stations where a portion of the street or sidewalk was used for its installation.”

We think the provisions of the ordinance disclose that it was designed to apply to both curb and drive-in gasoline filling stations. If the ordinance limited the requirement for the payment of the license fee to ■those “persons, firms, or corporations desiring a permit to establish and use a gasoline ■station on any street or sidewalk or part thereof,” as is provided in the first part of ■Section 3, then the construction given by the Court of Civil Appeals would no doubt be a correct one, as such language seems appropriate to describe only what is commonly ■called a curb gasoline station. But the ordinance does not so limit the license fee exact•ed. After. describing a curb station, it requires the payment of a license fee for another and different type of station not eov-■ered by the above description. It is: “Where .any part of any sidewalk is used for the purpose of ingress and egress in connection with such gasoline station within the City of Fort Worth.” This language was manifestly designed to and does cover a drive-in gasoline station, where no part of the street or sidewalk is used for the purpose of installing ■equipment. In other words, there were two ■types of gasoline filling stations operated in the city of Fort Worth, and the ordinance was so drawn as to cover both types of stations. The provisions of section 2 indicate a purpose to levy the license fee against operators of all gasoline stations using any street •or sidewalk and the character of use contem-plated is specially defined in section 3 as being the use of the sidewalk for drive-in purposes.

The construction adopted by the Court of Civil Appeals renders meaningless the latter part of section 3. The first part quoted was clearly sufficient to describe curb stations, and, if they were the only type of stations intended to be affected by the act, it would have been wholly unnecessary to have added the latter provision of section 3.

Nor are we able to concur in the holding 'of the Court of Civil Appeals that, if the ordinance should be held to levy a license fee against operators of drive-in stations, the same is unconstitutional and void because it is in effect an attempt to levy a tax against a property owner for the exercise of an inherent right of ingress' and egress to his property.

If there can be found no stronger foundation upon which to predicate the authority to enact the ordinance in question than the power of the city to tax a property owner for his right of ingress and egress to his property, of course, the ordinance cannot be sustained. However, it is our view that the city of Fort Worth was expressly empowered by the provisions of its charter, as well as the authorization contained in article 1175, R. S. 1925, applicable to cities adopting charters under the home rule amendment (Const, art. 11, § 5) to enact an ordinance of this character.

Section 17, chapter 8, of the charter of the city of Fort Worth, in effect at the time of the passage of the ordinance, reads as follows: “Provided further, that nothing herein shall be so construed to prevent the City in the use of its police power from prescribing license fees or police tax necessary and proper to enable the City to exercise proper police surveillance over all persons, firms or corporations or callings subject to same.”

Among the powers possessed by the city of Fort Worth under article 1175 are the following:

“(16) To have exclusive dominion, control, and jurisdiction in, over and under the public streets, avenues, alleys, highways and boulevards, and public grounds of such city. * *
“(23) To license any lawful business, occupation or calling that is susceptible to the control of the police power. * * *
“(34) To enforce all ordinances necessary to protect life, health and property.”

It is quite true that the operation of a gasoline filling station is a necessary and lawful business. The nature of the business and the method of its operation is such, however, as to bring it clearly within the general police power of a city to regulate. In the first place, these stations store and distribute highly explosive and inflammable products in such proximity to the streets and sidewalks and adjacent property as to constitute a danger and menace to life and property in the immediate vicinity. Again, the operation of gasoline filling stations reduces parking space upon the streets and otherwise tends to cause traffic congestion. Of necessity the city must by proper regulation keep open traffic lanes in order that drive-in stations may operate. The existence of these conditions furnishes a substantial basis for the exercise of the city’s general police power. Standard Oil Co. v. City of Marysville, 279 U. S. 582, 49 S. Ct. 430, 73 L. Ed. 856; Pierce Oil Corporation v. Hope, 248 U. S. 498, 39 S. Ct. 172, 63 L. Ed. 381; Powell v. Pennsylvania, 127 U. S. 678, 8 S. Ct. 992, 1257, 32 L. Ed. 253; McKelley v. City of Murfreesboro, 162 Tenn. 304, 36 S.W.(2d) 99; Cayce v. City of Hopkinsville, 217 Ky. 135, 289 S. W. 223.

While the direct question involved has never been before our Supreme Court, it has been presented to several Courts of Civil Appeals. It has been rightly decided by such courts that the operation of a gasoline filling station is a business of such a nature as to ¡render it subject to reasonable regulation under the general police power accorded to cities of this state. City of San Antonio v. Robert Thompson & Co., Inc. (Tex. Civ. App.) 23 S.W.(2d) 796; City of San Antonio et al. v. Humble Oil & Refining Co. (Tex. Civ. App.) 27 S.W.(2d) 868; Scott et al. v. Champion Bldg. Co. et al. (Tex. Civ. App.) 28 S.W.(2d) 178; McEachern v. Town of Highland Park et al. (Tex. Civ. App.) 34 S.W.(2d) 676. Tlhe San Antonio ordinance was also upheld by the Circuit Court of Appeals in the case of City of San Antonio v. Ruibin, 42 E.(2d) 107.

.The ordinance under consideration is wholly dissimilar to the one declared void by the Supreme Court of Oklahoma in the case of City of Shawnee v. Robbins Brothers Tire Co., 134 Okl. 142, 272 P. 457, 66 A. L. R. 1047. The'ordinance there involved was not directed against filling stations alone, but provided that every person using any portion of a sidewalk for a drive-in space should pay $1 per foot for the amount of space so used. It was sought to apply this ordinance against a person engaged in the sale of automobile tires. Inasmuch as the ordinance was applied to an ordinary commercial business not subject to' the police power, it was properly denounced as a mere tax upon the right of ingress and egress to property. The ordinance in the case before us is one regulating solely the operation of a gasoline filling station, a business within the police power of a city to regulate. It cannot therefore be said to be in any sense an attempt to levy a tax upon the right of ingress and egress to property. The provision with reference to the use of sidewalks for purposes of ingress and egress is merely descriptive of one type of gasoline filling station which it is sought to subject-to the license provision of the ordinance.

The Court of Civil Appeals seems to lay some stress upon the fact that each of the defendants in error, at the time of the construction of his underground storage tanks, paid a fee of $5 required under the city building code. The provision of the Code under which this payment was made reads as follows: “No storage plant intended for storing gasoline or other volatile or inflammable liquid, or liquids, shall be installed except in compliance with this ordinance and under permit issued by the Building Commissioner, and upon payment of an inspection fee of five dollars ($5.00).”

It will be noted that the above provision of the building code has no reference to the operation of a filling station. Nor is it even limited to persons constructing plants for the storage of gasoline. It applies to any person constructing a storage plant for any volatile or inflammable liquid. It does not in any way conflict with the ordinance which requires a license to operate a filling station. The two ordinances cover entirely different subject-matters.

Finally, it is insisted that the annual charge imposed by this ordinance is in effect an occupation tax. We are unable to say that the amount imposed as a license fee is beyond that which the city council in the exercise of a fair discretion might consider necessary to enforce properly such regulation and inspection of filling stations as it deemed essential to safeguard life and property within the limits of the city.

We recommend that the judgment of the Court of Civil Appeals be reversed and that of the trial court affirmed.

OURETON, O. J.

Judgment of the Court of Civil Appeals is reversed, and that of the district court affirmed.


source: Caselaw Access Project

author: SHARE, J. CURETON, C. J.

license: Public Domain

text:
    FIDELITY UNION CASUALTY CO. v. CAREY et al.
    No. 1613—6020.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.
    Collins & Houston, of Dallas, and Lewis M. Seay, of G-roesbeck, for plaintiff in error.
    Mr. and Mrs. C. S. Bradley and J. E. Bradley, all of Groesbeck, and C. H. Machen, of Dallas, for defendants in error.
   SHARE, J.

This is the second appeal of this cause-to the Supreme Court. 25 S.W.(2d) 302. The Fidelity Union Casualty Company instituted ■this suit in the district court of Limestone county to set aside an award of the Industrial Accident Board in favor of Mose Carey, directing the Fidelity Union' Casualty Company to pay him compensation at the weekly rate of $10.38 during the continuance of total incapacity, unless subsequently modified or terminated by agreement of the parties or further order of the Industrial Accident Board, not to exceed 400 weeks from the date of his injury. In his answer, Carey set up a cross-action alleging that his injury had permanently and totally incapacitated him for work, and praying for 400 installments of compensation at the weekly rate of 60 per cent, of his average weekly wages. He alleged that he was performing a service in the course of his employment in a line of business subject to the Workmen’s Compensation Act, title 130, art. 8306 et seq., Revised Civil Statutes, as amended; that he worked in such employment and capacity for six days each week at a wage of $18 per week; that his average annual weekly wage, as defined in the act, was $18; and that his average annual wage was $936. The case was submitted to a jury on special issues, and the court, on answers of the jury, entered judgment for the defendants. The Court of Civil Appeals at Waco affirmed the judgment. 38 S.W. (2d) 169, 171.

We refer to the opinion of the Court of Civil Appeals for a more detailed statement of the nature and result of this case.

Plaintiff in error contends that in an action for compensation predicated upon average weekly wages and average annual wages, as defined in the Workmen’s Compensation Act, the employee has the burden to prove his average weekly wage received in the particular employment in which he sustained -the injury, and where the undisputed evidence shows that the employee received his injury while engaged in the work of a stable man or corral boss, such being a regular and necessary part of the master’s business as a road contractor and hauling contractor, and within the scope of the act, but that he also worked for the same master at farm labor, an employment expressly excluded by the terms of the act and not covered by the policy, and that the wages received by the employee were paid indiscriminately for all services rendered, and it is not shown what part of the wages was paid for the work that he did in the master’s business in connection with which he sustained his injury as distinguished from the work done in the hog raising business, there was no issue for the jury, and a verdict should have been instructed in favor of the insurer.

At the conclusion of the testimony, plaintiff in error requested the trial court to peremptorily instruct the jury to return a verdict for it. This request was denied.

The testimony shows that Mose Carey, a colored man, was an employee of Ered Hall, who was a teaming contractor, hauling for the public, and- in connection therewith had a contract to haul swill from the city of Mexia. Hall had 10 or 12 men employed in his service, and his work was classed as an industrial vocation under the terms of the Workmen’s Compensation Act. Hall carried compensation insurance with plaintiff in error. Carey was stable man or general corral boss, in fact a general handy man, and it was his duty to drive up the mules or horses in the morning, feed and harness the teams, repair harness, etc. All of the work stock was kept in a pasture of about 123 acres. Hall was also engaged in the business of raising, feeding, and shipping hogs. Carey, in connection with his other duties, hauled the swill from the city of Mexia and fed it to the hogs, and sometimes fed grain to the hogs. At the time Carey was injured he had gone to the pasture for the purpose of corralling the work stock, or some of them. He was riding one of the horses used for hauling swill, and, while attempting to drive one Sr more of the horses to the barn,. he was thrown, and as a result thereof was totally and permanently injured.

The jury, in response to the special issues submitted, found:

(1) That Carey suffered and sustained an accidental injury while in the due course of his employment on March 23, 1927.

(2) That Carey suffered total incapacity for work as a result of the accident.

(3) That Carey suffered permanent incapacity for work as a result of the accident.

(4) That the average daily wage earned by Carey working substantially the whole of the immediately preceding year .was $3.

(5) That the average weekly wage earned, by Carey working substantially the whole of the preceding year was $18 a week. ■

(6) That manifest hardship and injustice would result if Carey was not permitted to recover in a lump sum of single compensation the amount he was entitled to.

The courts of this state have given the compensation statutes a liberal construction for the purpose of carrying out the objects for which they were enacted. Lumberman’s Reciprocal Ass’n v. Behnken, 112 Tex. 103, 246 S. W. 72, 73, 28 A. L. R. 1402; Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084; Federal Surety Co. v. Ragle (Tex. Com. App.) 40 S.W.(2d) 63.

An employee hired as corral boss , by a teaming contractor and injured in handling or corralling the teams is not precluded from recovering compensation by reason of the fact that some of the teams were to be used by the employee for hauling swill in connection with his employer’s hog-raising enterprise, which was only an incident to his main employment, which was an insurable occupation. We find nothing in the Workmen’s Compensation Act and the decisions construing that act that prohibits this construction.

The jury found, in answer to a special-issue submitted, that Carey was injured while in the due course of his employment, which under the law was an insurable occupation. The Court of Civil Appeals sustained this finding, and held that it was-supported by sufficient testimony.

The evidence shows that Carey had worked' for Hall for approximately four years in practically the same employment. He sometimes drew $15 per week, and sometimes $20 per week. At the time of the injury he was working six days per week, and was drawing $18 per week. He usually drew $3 per day,, and worked six or seven days per week.

We quote from the opinion of the Court of Civil Appeals as follows: “The evidence-shows that Carey worked from six to seven days per week. 1-Ie worked regularly and. generally received $3 per day, sometimes more. He sometimes worked overtime and was paid extra. There is no evidence that he lost any time. If his actual earnings for the jmar had been divided by fifty-two, his weekly wage would doubtless have been more-than that allowed by the court. The jury found his average daily wage was $3 per day and his average weekly wage was $1S-per week, and the evidence supports the verdict.”'

The insurance company suing to set aside the compensation award could not complain that compensation was computed upon average daily wage, where consideration of total yearly earnings would have resulted in. an increased weekly wages. Hartford Accident & Indemnity Co. v. Durham (Tex. Civ. App.) 222 S. W. 275; Lumbermen’s Reciprocal Ass’n v. Warner (Tex. Com. App.) 245 S. W. 664; Fidelity Union Casualty Co. v. Cary (Tex. Civ. App.) 13 S.W.(2d) 993; Casualty Reciprocal Ins. Co. v. Stephens (Tex. Civ. App.) 25 S.W.(2d) 180. See also Texas Em ployers’ Ins. Ass’n v. Storey (Tex. Com. App.) 17 S.W.(2d) 458; Petroleum Casualty Co. v. Williams (Tex. Com. App.) 15 S.W.(2d) 553.

Carey, having been employed generally as corral boss for a teaming contractor who rendered incidental services in feeding hogs for the same employer, could recover compensation on basis of his average annual wages received in all similar work done by him. Article 8309," section 1, subsection 1.See, also, Juan’s Case, 125 Me. 361, 134 A. 161; Anderson v. Roberts-Karp Hotel Co., 171 Minn. 402, 214 N. W. 265; Clark v. Forest Lumber Co., 9 La. App. 639, 120 So. 88; Western Metal Supply Co. v. Pillsbury, 172 Cal. 407, 156 P. 491, Ann. Cas. 1917E, 390.

In a certain line of cases the courts hold that the compensation should be based on the wages paid by the industry in which the injured employee was working at the time of the injury, and not the actual earnings of. the employee in all similar work done by him. In some of the states the rule is controlled by statute. Quebec’s Case, 247 Mass. 80, 141 N. E. 582, 30 A. L. R. 996; King’s Case, 234 Mass. 137, 125 N. E. 153; Skouitchi v. Chic Cloak & Suit Co., 230 N. Y. 296, 130 N. E. 299, 15 A. L. R. 1285; Rice’s Case, 229 Mass. 325, 118 N. E. 674, Ann. Chs. 1918E, 1052; Marvin's Case, 234 Mass. 145, 125 N. E. 154; Hight v. York Mfg. Co., 116 Me. 81, 100 A. 9, L. R. A. 1917E, 277; Snow’s Case, 252 Mass. 426, 147 N. E. 877; Kapler v. Camp Taghconic, 215 App. Div. 51, 213 N. Y. S. 160; Walton v. Electric Service Co., 121 Kan. 480, 247 P. 846.

The pleadings and proof raised, the issues submitted to the jury; and their findings thereto justified the rendition of the judgment by the trial court and fulfilled the burden placed upon Carey in order to entitle him to a recovery. If the plaintiff in error felt that the evidence raised some defensive theory that would change or defeat the claim of Carey, it had the right, if properly presented, to have the defensive issues submitted to the jury. This was not done. No such issues were submitted by the court, and none were requested. The trial court having rendered judgment for Carey and others, it will be presumed that the court found that Cayey was injured while engaged in an industrial occupation, for which the insurance was carried, and that his wages were sufficient' to support the judgment. Embrey v. W. L. Ligon & Co., 118 Tex. 124, 12 S.W.(2d) 106; Fidelity & Deposit Co. v. Kelsay Lumber Co. (Tex. Com. App.) 29 S.W.(2d) 1052; Texas Employers’ Ins. Ass’n v. Russell (Tex. Civ. App.) 16 S.W.(2d) 321.

Because Carey as an incident to his main job as corral boss fed the swill to the hogs, which is held to .be a farming industry and noninsurable (article 8306, § 2; Gordon v. Buster, 113 Tex. 382, 257 S. W. 220; Hill v. Casualty Co. (Tex. Com. App.) 45 S.W.(2d) 566), does not defeat his right to claim compensation for injuries received while engaged in an insurable occupation. To hold otherwise would be to defeat the letter and spirit of the Workmen’s Compensation Act, and thwart the proper purposes for which this law was enacted.

We have carefully examined this record in the light of the able opinion rendered by Associate Justice Alexander for the Court of Civil Appeals, and we find no reversible error.

We recommend that the judgment of the Court of Civil Appeals be in all respects affirmed.

CURETON, C. J.

Judgments of the district court and Court of Civil Appeals are both affirmed, as recommended by the Commission of Appeals.


author: SHORT, J. CURETON, C. J.

text:
    WILBARGER COUNTY et al. v. HALL.
    No. 1362—5934.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.

      Luther Hoffman, of Wichita Falls, and Berry, Wárlick & Gossett, of Vernon (for Highway Commission), for plaintiffs in error.
    Storey, Leak & Storey and J. S. Cook, all of Vernon, for defendant in error.
    James V. Allred, Atty. Gen., and T. S. Christopher, Asst. Atty. Gen., amici curias.
   SHORT, J.

This proceeding originated in the commissioners’ court of Wilbarger county, and its apparent purpose was to take, for public use, 3.21 acres of land belonging to the defendant in error and to apply this land, so taken, to the use of the state highway commission as State Highway No. 28, commonly called Lee Highway, running from a point on the Red river in the northern part of the state west-wardly to the New Mexico line, without having secured the consent of the defendant in error. The opinion of the Court of Civil Appeals, which contains a very full statement of the facts, including the pleadings of the parties, as well as a full discussion of the law of the case, is reported in 37 S.W.(2d) 1041, 1043, and we refer to that opinion for the statement of the case. Among other things, the Court of Civil Appeals finds that “the state highway commission is not a party to this suit, and it does not appear that such commission participated in the condemnation proceedings in any manner.” The Court of Civil Appeals reversed the judgment of the county court and dismissed the condemnation proceedings, holding, in effect, that the condemnation proceedings were void for the reason that the manner in which the proceedings were commenced and conducted was not authorized by the lawi

Of course, section 17 of the Bill of Rights authorizes the taking of a person’s property and applying it for public use, provided adequate compensation has been made, or provided the person whose property is taken consents thereto; but in the absence of such consent the manner of taking a person’s property and applying 'it to public use is prescribed by law, and this manner must be' strictly followed. There were no pleadings in the record until after the proceedings had been filed in the county court of Wilbarger county. Whatever proceedings were had in the commissioners’ court are left to conjecture, but it does appear that the county judge and the commissioners of Wilbarger county were the affirmative actors and that these officials had the land belonging to the defendant in error viewed and valued. It also appears that the defendant in error appeared before this jury of view and presented an itemized statement of his claim for damages, aggregating in the neighborhood of $5.000'. The jury did not allow this claim in its entirety and the record does not disclose how-much- it did allow. When their report was made to the commissioners’ court, the defendant in error appealed to the county court of Wilbarger county, and, among other things, entered into a written agreement as follows: “It is agreed that all matters in controversy are eliminated and waived, except the value of the land actually taken for the road, the damages, if any, to the land not taken, and the benefits, if any, to the land not taken.” This agreement seems to have been made when the case came on for trial in the county court of Wilbarger county. Notwithstanding this agreement, the defendant in error interposed in his answer, afterwards filed many special objections to the procedure had in the case, but in view of the agreement we do not think any of the objections to the procedure were tenable, which the defendant in error had the power to waive. Of course, he could not waive any matter that went to the jurisdiction of the court over the subject-matter. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084, 1085; Perkins v. U. S. Fid. & G. Co. (Tex. Com. App.) 299 S. W. 213; 15 C. J. p. 802, par. 101; p. 844, par. 164; 7 R. C. L. p. 1039, par. 70; USCA, title 23, Highways, chap. 1, § 13.

If the commissioners’ court of Wilbarger county either had no jurisdiction of the subject-matter, or if its manner of exercising jurisdiction of the subject-matter was not strictly followed, according to the law covering such matters, then the waiver would not apply. This was a deferalized project, and was strictly a state highway location, though the state highway does not appear in the proceedings, beyond the fact that the land taken was used for state highway purposes exclusively. There is some suggestion in the record that the land was sought to be taken under article 6705 of the Revised Statutes of 1925, but it affirmatively appears that the petition was not signed by eight freeholders, and that the twenty days’ notice was not given as required by the provisions of that article. This situation was discussed by Judge Phillips in the case of Haverbekken v. Hale, County Judge, 109 Tex. 106, 204 S. W. 1162, and was also discussed by the writer in the case of Robison v. Whaley Farm Corporation, 120 Tex. 633, 40 S.W.(2d) 52, wherein it was concluded that where it appeared that the provisions of this article were not complied with, the land sought to be taken thereby was illegally taken, and the whole proceedings were void. In the case of Robison v. Whaley Farm Corporation, supra, we expressly held that the commissioners’ court had authority of its own motion to condemn private property for road purposes for the public, though the facts, in that case, are altogether different from the facts in this case, in that the land sought to be taken was for county road purposes, and not for state highway purposes.

The 35th Legislature '(Acts 1917, c. 190).at-tempted to set up a complete system of state highways, and article 6673 of the Revised Statutes of 1925, together with the amendments hereinafter mentioned, authorized the state highway commission to take over state highways. Article 6674b provides that: “All highways in this State included in the plan providing a system of State Highways as prepared by the State Highway Engineer in accordance with Section 11, of Chapter 190 of the General Laws of the Regular Session of the Thirty-fifth Legislature are hereby designated as the ‘State Highway System.’ ” Article 6674d, among other things, gives exclusive control to the state highway commission of state highways where these highways. are constructed in part by the use of federal funds, as this seems to have been.

In Robbins v. Limestone County, 114 Tex. 345, 268 S. W. 915, the Supreme Court, speaking through Judge Pierson, in effect held, among other things, that the act of the state in placing public roads within a county and road district, under control and management of the state highway department, though roads were constructed by funds raised by local taxation and by issuance of bonds, which were still outstanding, was not a taking of county or road district property without just compensation or without due process of law, and the same case held that the Acts of the 3Sth Legislature (Acts 1923, c. 75) authorized the state highway commission to take over the various highways and that this act was not violative of article 5, § 18, of the Constitution, delegating to county commissioners’ courts jurisdiction over all “county business,” as conferred by the Constitution and law. In other words, the Supreme Court has held that the state highway system, generally speaking, as a system, is in all respects in accordance with the provisions of the Constitution, and the state highway system, as designated in title 116, chap. 1, R. S. 1925 (article 6663 et seq.), and the amendments thereto, hereinafter mentioned, notwithstanding article 5, § 18, of the Constitution, delegates to county commissioners’ courts jurisdiction over all “county business,” in effect holding that the supervision of the highways was not included within the phrase “county business.”

We gather from the statement of facts that the defendant in error’s land was sought to be taken in the spring of 1928, though the proceedings were filed in the county court on the 27th day of February, 1930. This fact becomes material by reason of what we shall say with reference to article 6674n, as enacted by the 39th Legislature in 1925. This particular article, in effect, gave to the highway commission the right to condemn private property for road purposes, and sets up the machinery of the commissioners’ court as its agent to be used in condemnation proceedings. Up to that time it appears that the system of state highways set up by the 35th Legislature, and afterwards by the 38th Legislature, did not specifically provide any method by which the state highway commission could condemn private property for the use of state highways. So the 39th Legislature (1925) enacted article 6674n, which is called section 14 in the act (chapter 186). This article refers to articles 6894 and 6895 of the Revised Statute of 1911, and provides, among other things, that the procedure provided by these articles shall be followed in condemning private property for public use as a state highway.

The Act of the 39th Legislature (Acts 1925,' c. 186), in its caption, provides that it was an act, among other things, “authorizing the condemnation of materials to be used in the improvement of a State Highway and of land for rights-of-way.” It will thus be seen that this act had direct reference to the conditions presented by the facts of this case. Still, when we refer to articles 6894 and 6895, title 119, R. S. 1911, we are confronted with the fact that these articles have no reference to condemnation proceedings, and a further examination discloses that the Legislature intended to refer to articles 6984 and 6985, title 119, R. S. 1911, which do refer to condemnation proceedings, and which gave to the commissioners’ court the authority to condemn private property for use of public roads. The same Legislature, that is, the 39th Legislature, on page 300, passed an act (Acts 1925, e. 116 [Rev. St. 1925, art. 3264a]), the purpose of which was to confer upon counties the right of eminent domain where land, right of ways, or easements were necessary to be secured for the construction of jails, courthouses, hospitals, delinquent and dependent .schools, poorhouses and libraries, or for other public purposes, and provided for the institution of such proceedings in the name of the county. In this act the Legislature declared that counties, except for road purposes, did not have the right of eminent domain, and that it was necessary that the act he passed.

In Robbins v. Limestone County, supra, the Supreme Court gave a similar construction to the statutes on this subject. The 41st Legislature, by an act (Acts 1929 [3d Called Sess.] c. 10, § 1), the purpose of which was to correct the error referring to articles 6894 and 6895, in section 14, c. 186, Acts of the 39th Legislature (1925), in making the same, refers to articles 6984 and 6985, as well as conferring authority on the commissioners’ court to acquire a new or wider right of way or land for material or borrow pits, and which prescribed regulations with reference thereto, among other things, declared: That the subject of this act was to correct an error in the act of the 39th Legislature and to confer needed authority on the commissioners’ court, giving the same construction as we have given to the error made in reference to the articles of the statutes of 1911, and also giving the same construction as was given in Robbins v. Limestone County, supra, and in Heathman v. Singletary (Tex. Com. App.) 12 S.W.(2d) 150, to the effect that the policy of the state was to create the public highway system, and that it had the effect to take away from the commissioners’ courts the power of eminent domain, except as the agent of the highway commission to condemn lands for state highway purposes.

The judgment rendered by the county court,' among other things, declares the following: “It is therefore, ordered, adjudged and decreed by the court that the following described land and premises belonging to the said R. W. Hall, be and the same is liereby condemned, and that the said Wilbarger county, a municipal corporation, the petitioner herein, have and recover of and from R. W. Hall, the defendant herein, a right of way for the establishment, location, construction, operation and maintenance of a first-class highway, in and upon the said land of the defendant, described and designated as follows: * * * It ⅛ further ordered and decreed that said right of way hereinbefore described be and the same is hereby vested in said Wil-barger county and it is further ordered and adjudged that the defendant, R. W. Hall, have and recover of and from Wilbarger county, petitioner, as damages for such right of way the sum of Six Hundred Forty-two ($642.00) Dollars, with interest thereon from May 1, 1928, until paid at 6⅞ per annum, together with costs of these proceedings and of this court for which damages and costs let execution issue, and for which right of way let writ of possession issue.” We have set out so much of the judgment entered merely for the purpose of showing that the title to this land was vested in Wilbarger county; whereas, in proper condemnation proceedings by the state highway commission, the title would be vested in the state. Furthermore, it is provided that Wilbarger county pay the damages and execution is ordered issued; whereas, not Wilbarger county, but the state highway commission, is liable for the damages for private lands taken for state highway purposes. Moreover, it is provided by the Constitution that no public funds shall be used for private purposes except as expressly provided by law, and a part of this judgment violates this part of the Constitution.

We are of the opinion that the county court of Wilbarger county, did not acquire any jurisdiction of the subject-matter, and was without authority' to condemn the land belonging to the defendant in error, in the manner in which.it sought to do, and that the judgment in favor of the defendant in error, against Wilbarger county, is a nullity and the taking of defendant in’ error’s land, in the manner in which it was taken, is violative of the Bill of Rights, § .17. We are further of the opinion that the agreement made by the defendant in error leaves unnecessary a discussion of the many alleged errors committed by the trial court, for the reason that whatever errors the court committed were waived by virtue of this agreement. Watt v. Studer et al. (Tex. Civ. App.) 22 S.W.(2d) 709; O’Keefe v. Hudspeth County et al. (Tex. Civ. App.) 25 S.W.(2d) 625; Central Power & Light Co. v. Willacy County (Tex. Civ. App.) 33 S. W.(2d) 476. It is true none of the cases last cited eyer reached the Supreme Court, but we think they are sound on the point we have been discussing, and therefore approve them. There is some suggestion that article 6674n, R. S., 1925, as amended by the 3d Called Session of the 41st Legislature, supra, is viola-tive of article 3, § 36, of the Constitution, and also that it is ineffective by reason of the fact that the articles to which the act of the 41st Legislature refers, and in effect adopts, were not carried forward in the revision of 1925, and of course these articles are repealed by an expressed provision of the act of 1925. We do not pass on this proposition for the reason that there is enough left of the act of the 39th Legislature, as amended by the act of the 41st Legislature (see Vernon’s Ann. Civ. St. art. 6674n), to indicate that the highway commission has the right of eminent domain under article 3264, R. S. 1925, which provides the procedure to be followed in exercising this right of eminent domain. We do not think that article 3264a, which gives the right of eminent domain to counties, has any reference to the subject matter of this suit. However, we do think article 3265, as well as other articles of title 52 (article 3264 et seq.), are applicable and furnish a specific procedure in determining the rule of damage and the adjudication of costs. We are further of the opinion that chapter 1, title 116, in connection with title 52, and the amendments thereto, are sufficiently specific to enable tbe state highway commission to legally take the land belonging to the defendant in error, which is necessary to be used in the construction of State Highway No. 28, by paying him, out of funds belonging to the state highway, proper compensation, to be ascertained by the rules we have mentioned.

The Court of Civil Appeals reversed the judgment of the county court and dismissed the case, because the county court did not have any jurisdiction, among other things, and in so far as the opinion of the Court of Civil Appeals held the county court did not have any jurisdiction, we think the opinion is correct, and we recommend that it be affirmed.

CURETON, C. J.

The judgment of the Court of Civil Appeals Is affirmed, as recommended by the Commission of Appeals.


author: LEDDY, J. OURETON, C. J.

text:
    BEAL v. TEXAS INDEMNITY INS. CO.
    No. 1367—5948.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.
    Ferrell & Yates, of Roby, and Thomas & Shapard, of. Anson, for plaintiff in error.
    Don Emery and T. L. Dyer, both of Amarillo, and Walter L. Bames, of Des Moines, Iowa, for defendant in error.
   LEDDY, J.

This case arises under the Workmen’s Compensation Law (Vernon’s Ann. Civ. St. art. 8306 et seq.). -It was tried in the district court upon an appeal by plaintiffs in error from an award of the Industrial Accident Board.

It was submitted to a jury upon special issues. These issues were answered favorably to plaintiff in error, and judgment was thereupon rendered awarding him a lump sum recovery.

Upon appeal the Court of Civil Appeals reversed the judgment and remanded the cause for another trial upon the ground that the trial court erred in refusing to sustain the general demurrer urged to plaintiff in error’s petition, 35 S.W.(2d) 1054.

The basis for the holding by the Court of Civil Appeals that plaintiff in error’s petition was subject to a general demurrer is that it failed to' show the necessary jurisdictional fact that the amount involved in plaintiff in error’s claim before the Industrial Accident Board was a sum'within the jurisdiction of the district court.

Plaintiff in error alleged that in the course of his employment he received an injury totally and permanently incapacitating him from pursuing any gainful occupation. The petition then alleged:

“That in accordance with the terms and provisions of the said Texas Workmen’s Compensation Act, as amended, that plaintiff gave due notice to both the Industrial Accident Board and to. the said Texas Indemnity Insurance Company, and to said Phillips Petroleum Company, of said injury, and that said Phillips' Petroleum Company, and said defendant,'Texas Indemnity Insurance Company, had actual notice of said injury within thirty days from the ■ date thereof, and ' that within ' six months thereof- the plain-' tiff herein made due claim before the Industrial Accident Board of the State of Texas, and to the said defendant, for compensation under the terms of .said Workmen’s Compensation Act, as amended, and the said defendant has heretofore acknowledged liability by paying this plaintiff several sums appropriating, sixty per cent of his average weekly wage for a period of several weeks.
“That heretofore, to-wit, on or about August 30th, 1920, the Industrial Accident Board made its final ruling and decision in said cause, a copy of which said ruling and award is filed with the papers of this cause for jurisdictional purposes, and-which said ruling and award reads substantially as follows, to-wit:”

The award referred to does not show the amount claimed by plaintiff in error before the Industrial Accident Board, nor the character of injury for which compensation was there claimed. It shows merely that the board considered plaintiff in error’s claim for compensation,. and awarded him a recovery for total incapacity for a period of 26 weeks, adjudging that he -was entitled to recover from defendant in error compensation at the rate of $14.37 per week for said period, amounting to a total of $373.62.-

. The allowance under the terms of the Compensation Eaw for the character of injury alleged, based upon plaintiff in error’s average weekly wage, was a sum within the jurisdiction of the district court.

It is our conclusion that the Court of Civil Appeals was in error in holding that plaintiff in error’s petition was subject to a general demurrer.

When a party is dissatisfied with an award of the Industrial Accident Board, he may, by compliance with the terms of the Workmen’s Compensation Act, bring a suit to set aside the award. Such suit must be brought in a court of competent jurisdiction, The amount claimed before the Industrial Accident Board, and not the amount awarded, is determinative of the proper court in which the suit must be brought.

The burden rests upon the party bringing such suit to show that the court in which the suit- is filed has jurisdiction of the action. Mingus v. Wadley, 115 Tex. 551, 285 S. W. 1084. He may do this by attaching to and making a part of his petition a certified copy of the award of the Industrial Accident Board, provided such award discloses the amount involved in the claim made before the board. Or he may set forth by direct allegations in his petition that the amount claimed by him before the board was a sum within the jurisdiction of the court in which the suit is brought.. But it is not absolutely essential, in order to show jurisdiction, that the amount of the claim before the board be alleged in actual dollars and cents. It is sufficient if it be shown that the claim for compensation before the board was for an injury for which the Compensation Law fixes a period of compensation which, when multiplied by the average weekly wage of the claimant, would result in a sum within the jurisdiction of the court in which the suit is brought. Travelers’ Ins. Co. v. Peters (Tex. Com. App.) 17 S.W.(2d) 457.

The allegations in plaintiff in error’s petition when given every reasonable intendment, as must be the case when their sufficiency to state a cause of action is tested by general demurrer, are sufficient to show that plaintiff in error' claimed compensation before the Industrial Accident Board for an injury resulting in total permanent incapacity.

He alleged that he received a certain injury while in the course of his employment which totally and permanently incapacitated him, so that he was incapable of pursuing any gainful occupation. It is then averred that he gave notice to the Industrial Accident Board, his employer, and the insurance carrier “of said injury,” and that within six months he made “due claim” before the Industrial • Accident Board for compensation “under the terms of the compensation act.” The allegation that he made due claim before the board can only reasonably be interpreted to mean that he made proper claim for the character of injury which he alleges he had received. Proper claim for his injury could not fairly be referable to some other or different injury than that which he alleges he received while in the discharge of his duties to his employer. It is not alleged that he re-' ceived an injury which at first appeared to be temporary in nature and subsequently became permanent. From his averments it can reasonably be inferred that the injury received totally and permanently incapacitated him from the time it was inflicted; hence, if a proper claim was made for such an injury, it was necessarily one for total and permanent incapacity. If his claim before the board was in fact for such an injury, then the average weekly wage alleged was such a sum that, when multiplied by the period of compensation fixed by the Compensation Law, it' resulted in an amount which brought his claim within the jurisdiction of the district court.

While the decidedly better practice in cases brought to set aside an award of the Industrial Accident Board is to allege distinctly the amount involved in the claim made before said board, yet, as against a general demurrer, a petition must be held sufficient if the jurisdictional fact is made to appear from allegations which reasonably and fairly show the nature of the claim before the board to be such as necessarily involves an amount within the jurisdiction of the court to which the appeal is prosecuted.

We have carefully considered the other grounds urged by defendant in error for a reversal of this case. We think the-Court of Civil Appeals properly held that none of such grounds presented reversible error.

We therefore recommend that the judgment of the Court of Civil Appeals be reversed and the judgment of the trial comt affirmed.

OURETON, C. J.

The judgment of the Court of Civil Appeals is reversed, and that of the district court affirmed, as recommended by the Commission of Appeals.


author: RYAN, J. CURETON, O. J.

text:
    LLOYDS OF TEXAS et al. v. BOBBITT, Attorney General, et al.
    No. 1573—6069.
    Commission of Appeals of Texas, Section B.
    Dec. 22, 1932.
    Critz & Woodward, of Coleman, Phillips, Trammell, Chizum, Price & Estes and Clayton L. Orn, all of Fort Worth, J. D. Barker, of Cisco, Alvin C. Owsley, of Denton, Gog-gans & Allison, of Dallas, Wagstaff, Harwell, Wagstaff & Douthit and York & Camp, all of Abilene, John B. Daniel, of Temple,'and Ren-fro, Ledbetter' & McCombs, of Dallas, for plaintiffs in error.
    James V. Allred, A tty. Gen., Everett L. Looney, Asst. Atty. Gen., and McBride, O’Donnell & Hamilton, of Dallas, for defendants in error.
   RYAN, J.

Lloyds of Texas was a Lloyds insurance organization created under the provisions of chapter 19, title 78, Rev. Civ. Stat.; the exchange was located in the city of Dallas.

After an examination of its affairs on March 29, 1930, the department of insurance concluded that the reserves of the organization, required by statute to be maintained, had been exhausted and that it, measured by statutory tests of solvency in relation thereto, was insolvent. A meeting of all the subscribers (underwriters) and the statutory attorney in fact was thereupon called by the chairman of the board of insurance commis-isioners, which was held in Dallas on April 14, 1930. Approximately 70 per cent, of the underwfiters, as well as the attorney in fact, were present. The financial condition of the organization was gone over at that meeting, with the result that the underwriters present unanimously voted to place the affairs of the concern in the hands of the insurance department. The resolution as adopted was that the insurance commissioner take over the exchange and appoint an agent to take charge of its affairs and reinsure such policies as could be reinsured; he was directed to cancel all undesirable policies and otherwise liquidate the affairs as in the commissioner’s judgment would be to the best interests of the underwriters. All powers of attorney held by the attorney in fact were canceled, the attorney in fact resigned, all books and records of the. concern were turned over to the insurance department, and a vote of thanks extended to the department for the manner in which the investigation had. been handled and for bringing the matter to the attention of the underwriters.

The insurance department took over the affairs of the concern and attempted to effect reinsurance of all the insurance on its books, but without success, and after efforts to liquidate it had failed, this proceeding was brought by the Attorney General at the request of the board of insurance commissioners as provided by Acts 1929, 41st Leg., 1st Galled Sess., p. 32, v. 11, § 1 (see Vernon’s Ann. Civ. iSt. art. 5022). The underwriters, the attorney in fact, and the concern itself, were named as defendants, its insolvency was alleged, the proceedings of the meeting of the interested parties were set forth, the failure to effect a reinsurance was averred, and a receivership was prayed for to wind up the concern.

The specific prayer was as follows: “Wherefore premises considered, petitioner prays that a receiver be appointed to wind up the affairs of such above named underwriters as Lloyds of Texas, as provided by Article 5022, Revised Civil Statutes of 1925, as amended by Acts of 1929, 41st Legislature, First Called Session, page 32, Chapter 11, Section 1, and for such other relief, as may appear proper to the court under the premises.”

Said petition was filed on May 16, 1930, when on an ex parte hearing, without notice to the defendants, the district court, after finding “from the petition and from evidence adduced before him in connection therewith” that said Lloyds of Texas is insolvent, that the board of insurance commissioners have taken over its affairs, and that a necessity exists for the appointment of a receiver to wind up its affairs, “ordered, adjudged and decreed that W. D. Prince, be and he is hereby appointed by the court, Receiver to take charge of all the assets of said Lloyds of Texas, to collect all past due accounts owing to said Lloyds of Texas, and to do and perform under the orders of this court such other and further acts as to such receiver from' time to time may appear to be necessary and proper.”

It was further ordered “that citation issue herein as provided by law citing the defendants to appear at the next term of this court to show cause why this receivership should not be continued in force.” The receiver’s bond fixed at the sum of $5,000, given by him, was approved by the court, and he entered upon the discharge of his duties.

No appeal was prosecuted from the above order, and the defendants, though cited to appear at the next regular (June) term of court, made no appearance thereat.

At the following term of court, which convened on the first Monday in October (article 199, Rev. St. 1925 (as amended by Acts 1930, 5th Called Sess., e. 71 [Vernon’s Ann. Civ. St. art. 199]), the defendants, on December 9, 1930, filed motion to vacate the receivership and remove the receiver. This motion was amended on December 23, 1930, and defendants “specially appearing herein for the purpose of showing cause why the receivership should not be continued in force as ordered by this Honorable Court on May 16,1930, and for the purpose of moving to vacate the order heretofore entered on May 16, 1930, appointing a receiver,” pleaded general and special exceptions, general denial, and certain special defenses not necessary to here enumerate.

The prayer was: “Wherefore, having fully answered these defendants pray that said order of May 16, 1930, and all subsequent orders be vacated and set aside and that this suit be dismissed, and specially do these defendants pray for the discharge of the defendant W. D. Prince as receiver, and for such other and further relief as they may show themselves entitled in law and in equity.”

On December 23, 1930, a hearing of the motion to vacate the receivership and to dismiss the suit was had, when the court heard evidence and entered the following order:

“The court is of the opinion that the named defendants have failed to show cause why the receivership should not be continued in force and that the motion filed by said defendants to vacate and set aside the order appointing the Receiver and to dismiss the suit is without merit, and that it should be overruled, and the Court is also of the opinion that the motion to discharge and remove the Receiver, W. D. Prince, should be in all things overruled.
“It is, therefore, accordingly ordered, adjudged and decreed by the Court that said motion to vacate the order appointing the Receiver and to dismiss the suit is in all things overruled. It is further ordered, adjudged and decreed by the Court that the motion to discharge and remove the Receiver, W. D. Prince, be, and the same is, in all things by the Court overruled.
“To which action, ruling and judgment of the Court the above named defendants then and therg in open court duly excepted and gave notice of appeal to the Court of Civil Appeals for the Fifth Supreme Judicial District of Texas.”

Such appeal was perfected by the filing and approval of defendants’ appeal cost bond, on January 9, 1931.

The Court of Civil Appeals affirmed the judgment below [40 S.W.(2d) 897], and the case is before us on application for writ of error.

This is an appeal from an interlocutory order of the district court refusing to vacate a receivership and remove the receiver theretofore appointed, authorized under article 2250, Rev. St. 1925, in which class of cases the judgment of the Court of Civil Appeals is final. Article 1821, suM. 6, Rev. Civ. Stat. 1925, as amended 'by Acts 1929, c. 33, § 1 (Vernon’s Ann. Civ. St. art. 1821, subd. 6).

A “receiver” is a person appointed by the court to preserve property in question pen-dente lite. Myers v. Occidental Oil Corporation (D. C.) 288 F. 997.

The jurisdiction of the Supreme Court extends only to questions of law arising in certain classes of cases brought to the Courts of Civil Appeals from final judgments of trial courts (article 1728, Rev. Civ. Stat. 1925), and to cases involving the granting or refusal of temporary injunction and motions to dissolve same, but the latter is only because of the special provisions of article 4662, Rev. Civ. Stat. 1925. Houston Oil Co. v. Village Mills Co., 109 Tex. 169, 202 S. W. 725, 226 S. W. 1075; Spence v. Fenchler, 107 Tex. 443, 180 S. W. 597; McFarland v. Hammond, 106 Tex. 679, 173 S. W. 645; Cole v. State of Texas, 106 Tex. 472, 170 S. W. 1036.

In the instant case no final judgment was rendered in the trial court and no question of injunction is involved.

The purpose of this suit is to wind up the Lloyds of Texas, sell its property, and pay off its indebtedness. The receivership is only ancillary to that end. Alto Cotton Oil Co. v. Berryman (Tex. Civ. App.) 218 S. W. 513.

That an order appointing a receiver Ts not a .final judgment is well settled. 53 C. J. p. 21; 23 R. C. L. p. 45. A receiver is simply an agency of the court appointing him to perform certain duties subject to the court’s further orders. Turner v. Cross, 83 Tex. 218, 18 S. W. 578, 15 L. R. A. 262; Brown v. Warner, 78 Tex. 543, 14 S. W. 1032, 11 L. R. A. 394, 22 Am. St. Rep. 67; Houston, E. & W. T. Railway Co. v. Campbell, 91 Tex. 551, 45 S. W. 2, 43 L. R. A. 225; Texas & P. Railway Co. v. Gay, 86 Tex. 571, 26 S. W. 599, 25 L. R. A. 52.

Our statute (article 2250, Rev. Civ. Stat. 1925) recognizes as an interlocutory order, only, the appointment of a receiver and the overruling of a motion to vacate such order.

As said by Judge Hamilton of this section of the Commission of Appeals, in Leyhe v. McNamara, 243 S. W. 1074, further action of the court is necessary to give completely the relief contemplated by the court; the appointment of a receiver is part of the final judgment which has not yet been completed and cannot be completed until an accounting is had, the report of the receiver is made, debts paid, the effects of the concern, if any, divided and apportioned, and an appeal in that ease was held to be merely from an interlocutory order appointing a receiver, in which the judgment of the Court of Civil Appeals is final.

So here, the order refusing to vacate the receivership and dismiss the suit simply continues the receivership subject to the further orders of the court, and is not a final judgment from which an appeal lies to the Supreme Court. Smith v. Laman (Tex. Civ. App.) 143 S. W. 304; Cotton v. Rand (Tex. Civ. App.) 92 S. W. 266; Southwell v. Church, 51 Tex. Civ. App. 547, 111 S. W. 969; 53 C. J. p. 80.

We recommend that the writ of error be dismissed for want of jurisdiction to hear the case.

CURETON, O. J.

The writ of error heretofore granted is dismissed, as recommended by the Commission of Appeals.


author: SHARP, J. OURETON, C. J.

text:
    FOLEY v. BENEDICT et al.
    No. 1624—6330.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.

      J. D. Barker, of Cisco, for relator.
    James V. Allred, Atty. Gen., Bruce W. Bryant, Asst. Atty. Gen., and Gaynor Kendall, of Austin, for respondents.
    Ira P. Hildebrand, of Austin, amicus curisa.
   SHARP, J.

This is an original proceeding filed by relator, Thomas H. Foley, against H. Y. Benedict, president of the University 'of Texas, R. L. Batts, Edward Crane, Robert L. Holliday, John I. Frances, Edward Randall, Beauford Jester, Lester Waggener, John T. Scott, and M. F. Yount, regents of the University of Texas, and George E. Bethel, dean of the School of Medicine of the University of Texas, respondents, asking that a writ of mandamus be awarded compelling the respondents to reinstate him as a student in the School of Medicine of the University of Texas, at Galveston.

The cause is here on an agreed statement of facts. The controlling facts are as follows:

The School of Medicine at Galveston is a school in and is a part of the University of Texas and is under the control and management of the board of regents of the University of Texas. Under its statutory power to make and enact all such by-laws, rules, and regulations necessary for the successful management of the University, the board of regents has adopted the following rules, inter alia, applicable to the School of Medicine:

“In the interest of efficiency, it has been decided to limit the freshman class to 100, no students except bona fide Texans being accepted.” (University of Texas Bulletin No. 3205, Part IX, Medical Branch Catalogue Number, 1932-1933, p. 21.)
“The session is divided into two semesters of fifteen teaching weeks each. Examinations áre held at the end of the first semester during the last week of January, and at the end of the session during the last two weeks of May. The examinations at the end of a semester are final for the work of that semester. A grade of 70 per cent or more is required to secure credit in any subject.
“Students who fail to make satisfactory grades in three major subjects or their equivalent, or in two major subjects where the general average is less than 70, shall be automatically dropped from the roll and shall not be readmitted.
“A student whose grades are unsatisfactory may be conditioned in less than three major subjects. Examinations for the removal of conditions will be held during the last week of September, preceding the next session, and a grade of 75 per cent or more is required in such examination.
“Examinations for the .removal of conditions in the work of the first semester may be taken at the time of the final examinations at the end of the session provided the student obtains special permission of the faculty within the first three weeks of the second semester.” Ibid., pp. 28, 29.

The board of regents has adopted courses of study to be pursued by students in the School of Medicine, and has divided the .courses adopted into four years work. Most of the courses of study adopted to be instructed in the School of Medicine are courses involving a great deal of laboratory work, and this method of instruction, that is, to a great extent through laboratory experiment, is the only practical method of teaching the courses adopted.

The laboratory and clinical and hospital facilities possessed by the School of Medicine of the University of Texas are of such capacity that, in the judgment of the -board of regents and the faculty of the School of Medicine, said equipment and facilities are available to and can be used by but 10⅛ first-year students, and by the students promoted from that class and the resulting classes. Only 100 students are admitted to the School of Medicine as first-year students, by reason of the limited facilities for the instruction of the courses adopted to be taught in the school.

Approximately 300 students, who have complied with the entrance requirements pertaining to educational preparation, make application yearly for entrance into the School of Medicine as first-year students. Only 100 of these are selected. Selection of those admitted is made on a basis of scholarship, by the committee of admission; the selection being based primarily upon the record of scholarship made by the applicants in the courses required to have been successfully completed as a prerequisite to entrance into the School of Medicine.

Respondents, in the exercise of their duties, have adopted courses of studies for the School of Medicine, and have divided the courses adopted according to their importance, and according to the time required in their instruction, into “major” and “minor” courses, and have rated the “minor” courses according to their fractional value, considering a “major” course as a whole. The value of the minor courses are indicated, upon reference thereto herein.

Relator took the premedieal course requisite to entrance into the School of Medicine, made application to the medical school, and was admitted as a student therein for the school year 19-30-31, and continued as a student until the close of the 19-31-32 term.

During his first year in the School of Medicine, relator took the following courses and made the following grades therein:

Major Subjects First Second Average Term Term Grade
Anatomy 71 70 70.5
Bacteriology 76 76.
Biological Chemistry 66 66.
Histology 70 70.
Physiology ■71 71.
Embryology Minor Subjects 71 71.
Medical Zoology (⅜) 74 74
Personal Hygiene (⅛) 74 74

Relator failed to do satisfactory work in but one major subject, to wit, biological chemistry, during his first year’s work. He was permitted to take a conditional examination therein at the end of the first year, and made a grade of 59 on -said conditional examination, and therefore failed to remove the conditional failure entered against him.

During the school year 1931-32 relator again was permitted to register as a student in the School of Medicine, and under the rules regulating the course of instruction was compelled to repeat and retake the course in biological chemistry. Relator was not able to take certain of the courses planned for instruction during the second year, because of his being required to repeat the course in biological chemistry. He was able to take, and did take, in connection with biological chemistry, the following courses during his second year in the School of Medicine, and made the following grades therein:

Major Subjects First Term SecondAverage Term Grade
Anatomy 76 68 72
Physiology 71 71
Biological Chemistry (Repeat, 1931-32) Major Subjects 64 64
Applied Anatomy (⅛) 67 67
Minor Surgery (½) 70 70

Relator, at the end of the second year, was permitted to take a conditional examination in biological chemistry and made a grade of 54 thereon, and therefore failed to remove the conditional failure entered against him by reason of his having failed to make a grade of 70 or more on the examination given at the end of the first semester in that course.

It is further agreed that the board of regents has adopted for the government of the School of Medicine of the University, the rules and regulations with reference to class standing and proficiency in work required that are above set out herein, and that said board of regents has delegated to the faculty of the School of Medicine the duty of enforcing same.

Under the rule above quoted, to wit, that if a student fail to do satisfactory work in two major subjects, with a general average of less than 70 per cent., he shall be automatically dropped from the rolls of the School of Medicine, as that rule is construed by the faculty of the School of Medicine, the relator was dropped from the rolls of the school at the end of the school year for 1931-32.

At the close of the 1931-32 term, relator was dismissed, and since that time he has applied to the board -of regents, to the president of the University of Texas, and to the dean of the School of Medicine for permission to reenter the School of Medicine as a student, and that he be permitted to- continue his studies as such student. The respondents have refused to readmit him, under the rule above set out herein.

The faculty of the School of Medicine, since the adoption of the rule that if a student fail in two major courses with a general average of less than 70- per cent, he shall be dropped from the rolls of the Sehoo-1, has construed that rule to mean that if a student fail in two major courses with a general average of less than 70 per cent, in all courses for the year, such student should be dropped from the rolls of the institution. The 'faculty of that school, since the adoption of this rule, has also regarded each term of the anatomy courses taught each year as a major course. (Italics ours.)

The rule and the interpretation of the same has been in effect since 1919-20 and the same is clearly explained to each freshman class entering the school, at a convocation of that class on the day following the day of registration of first-year students. This rule and the interpretation thereof by the faculty was explained to the freshman class of 1930-31, at a convocation of that class on the day following the day of their registration.

The School of Medicine at Galveston is a class A school of medicine, and all such schools in the United States have a rule that a student dismissed, for any reason, from a class A medical college will not be admitted as a student until he is reinstated.

As shown by the pleadings and by the agreed statement of facts, the relator, having complied with the educational prerequisites to entrance into the school, was admitted as a student for the session of 1930-31. Relator continued his studies in the school until the close of the 1931-32 session, when he was dropped from the rolls of the institution because of his failure to do satisfactory wort in the courses of study prescribed.

Relator contends (1) that he did not fall within the rule regarding dismissal from the institution because of unsatisfactory work; and (2) that if he did, the rule as applied to relator is unreasonable and arbitrary. The rule referred to by relator as being unreasonable and arbitrary is found at page 28 of the University of Texas Bulletin No. 3205, Part IX, Medical Branch Catalogue Number, 1931-1932, and reads as follows: “Students who fail to make satisfactory grades in three major subjects or their equivalent, or in two major subjects where the general average is less than 70, shall be automatically dropped from the roll and shall not be readmitted.”

, Article 2584, R. S. 1925, provides that the government of the University of Texas shall be vested in a board of regents, composed of nine persons. Article 2585, R. S. 1925, prescribes the powers of the board of regents in the following language: “They shall establish the departments of a first-class university, determine the offices and professorships, appoints a president, who shall, if they think it advisable, also discharge the duties of a professor, apxjoint the professors and other officers, fix their respective salaries; and they shall enact such by-laws, rules and regulations as may be necessary for the successful management and government of the University; they shall have power to regulate the course of instruction and prescribe, by and with the advice of the professors, the books and authorities used in the several departments, and to confer such degrees and to grant such diplomas as are usually conferred, and granted by ■universities.”

Under the foregoing article, the board of regents is directed to adopt courses of study, with the consent of the faculty, to be taught in. the University of Texas. By the same statute, the board is also authorized to enact all such by-laws, rules, and regulations as may be necessary to the government of the Uni-. versity. By and with the consent of the faculty the board of regents has enacted the rule above quoted; and, further carrying out the mandate of the state, they have adopted courses of study to be pursued in the School of Medicine. Since the board of regents exercises delegated powers, its rules áre of the same force as would be a like enactment of the Legislature, and its official interpretation placed upon the rule so enacted becomes a part of the rule. West Texas Compress & Warehouse Co. v. R. Co. (Tex. Com. App.) 15 S.W.(2d) 558, 560.

Article 7, § 10, of the Constitution of Texas, provides that the Legislature shall establish, organize, and provide for the maintenance, support, and direction of the University of the first class for the promotion of literature and the arts and sciences. Where the Legislature, acting under a constitutional mandate, establishes a university, the Legislature may provide certain rules and regulations concerning the admission and exclusion of certain classes entitled to be admitted to all the privileges of a state university, and instruction therein. The Legislature of this state not having provided who shall be admitted to the University, and having delegated the power to make rules and regulations necessary to the government of the University, to the board of regents, they are invested with the power of determining what classes of persons shall be admitted to the University, provided that the rules and regulations in that regard must be reasonable and not arbitrary. The authorities sustain certain general rules with regard to the government of institutions supported and maintained by the state. In 24 R. O. L. pp. 575-576, § 24, the rule is announced as fol/lows:_ “The courts will not interfere with the exercise of discretion by school, directors in matters confided by law to their judgment, unless there. is a clear abuse of the discre-ti°n> 01 a violation of law. So the courts are usually disinclined to interfere with regulations adopted by school boards, and they will not consider whether the regulations are wise or expedient, but merely whether they are a reasonable exercise of the power and discretion of the board. Acting reasonably within the powers conferred, it is the province of the board of education to determine what things are detrimental to the successful management, good order, and discipline of the schools and the rules required to produce these conditions. The presumption is always- in favor of the reasonableness and propriety of a rule or regulation duly made. The reasonableness of regulations is a question of law for the courts.”

In 24 R. O. L. pp. 646, 647, § 105, the following rule is announced: “The enjoyment of the right of attending the public schools is necessarily conditioned on compliance by pupils with the reasonable rules, regulations, and requirements of the school authorities, breaches of which may be -punished by suspension or expulsion. Ordinarily the school authorities have the right to define the offenses for which the punishment of exclusion from school may be imposed, and to determine whether the offense has been committed, the limitation on this authority being that it must in both respects be reasonably exercised. The power of expulsion given to the directors is not limited to cases of infraction of such rules as they may have theretofore adopted, but extends to cases where they may have become satisfied that the interests of the school require the expulsion of a pupil on account of his gross misbehavior, and the discretion vested in school anthorities in this respect is very-broad, but they -will not be permitted to be arbitrary.”

The case of State v. White, 82 Ind. 278, 42 Am. Rep. 496, involved the powers of the trustees and faculty to refuse admission or exclusion of students, and in the course of the opinion it was held that the right of admission may not be enforced when there is-not sufficient room in the University, and the court said:

“The admission of students in a public educational institution is one thing, and the government and control of students after they are admitted, and have become subject to the jurisdiction of the institution, is quite another thing.
“The first rests upon well established rules, either prescribed by law or sanctioned by usage, from which the right to admission is to be determined. The latter rests largely in the discretion of the officers in charge, the regulations prescribed for that purpose being subject to modification or change from time to time as supposed emergencies may arise.”

In the case of Wilson v. Board of Education, 232 Ill. 464, 84 N. E. 697, 698, 15 L. R. A. (N. S.) 1136, 13 Ann. Cas. 330, it was said: “The power of the board of education to control and manage the schools and to adopt rules and regulations necessary for that purpose is ample and full. The rules and by-laws necessary to a proper conduct and management of the schools are, and must necessarily be, left to the discretion of the board, and its acts will not be interfered with nor set aside by the courts, unless there is a clear abuse of the power and discretion conferred. Acting reasonably within the powers conferred, it is the province of the board of education-to determine what things are detrimental • to the successful management, good order, and discipline of the schools and the rules required to produce these conditions.”

The case of University of Mississippi v. Waugh, 105 Miss. 623, 62 So. 827, 830, L. R. A. 1915D, 588, Ann. Gas. 1916E, 522, involved the powers of the board of trustees of that University to exclude certain students from that institution. In the course of the opinion, the Supreme Court of Mississippi held: “⅜ * * The fourteenth amendment to the Constitution of the United States whs never intended to act as an accomplice to any young man who wanted to take advantage of the gratuitous advantages offered the youths to obtain an education, and yet refuse to obey and submit to the disciplinary regulations enacted by the Legislature for the welfare of the institutions of learning. The right to attend the educational institutions of the state is not a natural right. It is a gift of civilization, a benefaction of the law. If a person seeks to become a beneficiary of this gift, he must submit to such conditions as the law imposes as a condition- precedent to this right. The act in question is not class legislation. It is quite the reverse, and seeks to destroy the possibility of the existence of any class at the educational institutions^ No state or federal Constitution is violated by this act in any way. Complainant is not deprived of any constitutional right, unless complainant can be said to have a constitutional right to breach the discipline of the school and set at naught the laws of the state.” The above case was appealed to the Supreme Court of the United States, and the opinion of the Supreme Court of Mississippi was sustained. 237 U. S. 595, 35 S. Ct. 720, 59 L. Ed. 1131.

For a general discussion of this subject in addition to the authorities above cited, we refer to the following authorities: Splawn v. Woodard (Tex. Civ. App.) 287 S. W. 677; Zucht v. San Antonio School Board (Tex. Civ. App.) 170 S. W. 840; Anthony v. Syracuse University, 224 App. Div. 487, 231 N. Y. S. 435, 439; Id., 130 Misc. 249, 223 N. Y. S. 796; Pugsley v. Sellmeyer, 158 Ark. 247, 250 S. W. 538, 30 A. L. R. 1212; West v. Board of Trustees of Miami University, 41 Ohio App. 367, 181 N. E. 144 (1931); Baltimore University v. Colton, 98 Md. 623, 57 A. 14, 64 L. R. A. 108; Cooley, Constitutional Bimitations (8th Ed.) 345, 355; Corpus Juris, Volume 56, p. 807; Corpus Juris, Volume 11, p. 997, § 31; Tanton v. McKenney, 226 Mich. 245, 197 N. W. 510, 33 A. L. R. 1175 (1924); 27 R. C. L. p. 140; 27 R. C. L. p. 144.

Relator complains that the rule is unreasonable and that he is barred from readmission into the School of Medicine. The facts show that the facilities of the school can accommodate but 100 first-year students, and that the facilities are adequate for the accommodations of only those persons who .are promoted from that class to advancement into the other classes. The facilities are not adequate for all who, -having taken the required premedical course, wish to become students, as shown by the fact that approximately 300 students make application for admission to the School of Medicine as first-year students annually. The selection of the 100 students admitted annually to the school is made primarily on the record of scholarship made in the courses taken as premedical work.

A student who is admitted to the University receives the privilege of attending that institution subject to the reasonable rules and regulations promulgated by the 'board of regents and existing at the time of his entrance into the school. The educational facilities of state-supported institutions of higher learning are at the disposal of the average student engaged in a particular field of study, and a standard of excellence which the average student in a particular field of study is able to satisfy is not an unreasonable regulation. It follows that a student who is unable to maintain and meet the standard of proficiency required is not entitled to continue to attend a state-supported institution, provided the standard required. is not unreasonable and arbitrary. A rule which refuses readmission to a student who has failed to meet a standard of proficiency which the average student in the particular field of study is able to satisfy, is not unreasonable, where the facilities of the school are inadequate to accommodate all who are eligible to apply therefor.

It is undisputed that no complaint was made as to the conduct of relator while a student; that there was no ill feeling on the part of the board of regents and the faculty of the University towards relator; and that the only reason for his dismissal as such student was on the grounds herein stated. This record affirmatively establishes that the relator was selected from the 300 applicants for entrance into the school and was admitted as a student for the year 1930<-31. It is undisputed that he failed to do satisfactory work in one major subject during his first year’s work; that he was permitted to take a conditional examination therein at the end of the first year and made a grade of 59 on the conditional examination, and therefore failed to remove the conditional failure entered against him. Furthermore, during the school year 1931-32 relator was again permitted to register as a student, and under the rules was compelled to repeat and retake the course in biological chemistry. By reason of his previous failure he was not able to take certain of the courses planned for instruction during the second year. At the end of the second year relator was permitted to take a conditional examination in biological chemistry, and made a grade of 54 thereon, and therefore failed to remove the conditional failure entered against him by reason of his having failed to make a grade of 70 or more in the examination given at the end of the first semester in that course. Therefore, under the rule, the relator was dropped from the rolls of the school at the end of the school year 1931-32. ■ He does not deny that he was aware of the interpretation of the rule herein described.

The Legislature of this state having lodged tho power with the board of regents to enact rules and regulations as may be necessary for the successful management and government of the University, they shall have power to adopt such rules and to regulate the course of instruction, and prescribe, by and with the advice of the faculty, the books and authorities used in the several departments. That authority rests with the board of regents and the faculty as provided for by statute; and, if a change or modification is desired in the rules and regulations, it is a matter for the consideration of the "Legislature. The courts will not interfere ^therewith in the absence of a clear showing 'that they have acted arbitrarily or have ‘abused the authority vested in them. The great weight of authority sustain this doctrine. State ex rel. Ingersoll v. Clapp et al., 81 Mont. 200, 263 P. 433; John B. Stetson University v. Hunt, 88 Fla. 510, 102 So. 637; Woods v. Simpson, 146 Md. 547, 126 A. 882, 39 A. L. R. 1016; Kentucky Military Institute v. Bramblet, 158 Ky. 205, 164 S. W. 808; 11 C. J. p. 997, § 31; 24 R. C. L. p. 575, § 24.

We therefore recommend that relator’s application for mandamus be refused.

OURETON, C. J.

The opinion of the Commission of Appeals is adopted, and the mandamus refused.


author:
CRITZ, J.
      CURETON, O. J.

text:
    CAMPSEY v. BRUMLEY.
    No. 1609—6012.
    Commission of Appeals of Texas, Section A.
    Dec. 22, 1932.

      John A. Coffee, of Hereford, for plaintiff in error.
    Dameron & Dameron, of Hereford, for defendant in error.
   CRITZ, J.

This suit was originally filed in the county court of Deaf Smith county, Tex., by G. W. Brumley against J. C. Campsey. Judgment was rendered in the county court for Brumley and against Campsey for $159.13 with foreclosure of a chattel mortgage on one Chevrolet truck and body. Campsey prosecuted writ of error to the Court of Civil Appeals at Amarillo, which court originally reversed the judgment of the trial court and dismissed the appeal, but on rehearing withdrew its original ruling and affirmed the judgment of the county court. Campsey brings error.

We shall hereafter refer to the parties in the order in which they appeared in the county court, to Brumley as plaintiff and to Camp-sey as defendant.

The record in this case shows that on February 2, 1930, plaintiff filed his original petition in the county court of Deaf Smith county, Tex., wherein he alleged that on May 31, T928, defendant executed and delivered to him his promissory note in the sum of $310.70, due August 1,1928, bearing interest from date at 10 per cent., and providing for 10 per cent, attorney’s fees. A credit of date December 19, 1928, of $200 is also alleged.

The petition then alleges that at the same time the note was executed, and for the purpose of securing the same, defendant executed and delivered to plaintiff a chattel mortgage on one Chevrolet truck and body, six cows, and eight mules.

The prayer prays judgment for the amount of the debt, and for foreclosure of the chattel mortgage on the property above described.

The petition nowhere alleges the value of the -mortgaged property on which foreclosure is sought:.

The judgment, in substance, recites that the cause came on to be heard on the 2Gth day of August, 1930; that such date was the day the parties had agreed on for the case to be tried; that then came the plaintiff by his attorneys and announced ready for trial; and that the defendant did not appear, but wholly made default in accordance with a previous agreement that such failure to appear should allow the case to go by default. The judgment proceeds to find that plaintiff’s cause of action is liquidated and proved by an instrument in writing; that the court is of the opinion and finds that the defendant is indebted to the plaintiff in the aggregate sum of $157.91; and that the indebtedness is secured by a chattel mortgage on one Chevrolet truck and, body of the value of $125. The judgment then proceeds to award recovery for the plaintiff in the sum of $157.91, with foreclosure o-f the chattel mortgage on the truck and -body. The judgment contains other recitals not necessary to mention here. The judgment does not mention the other property on which the foreclosure was sought by the petition.

By proper assignment the defendant contended in the Court of Civil Appeals, and here contends, that the above judgment should.be reversed and set aside because the petition fails to allege sufficient facts to show jurisdiction of the subject-matter of the suit in the county court of Deaf Smith county, Tex. We sustain this assignment.

Article 1970 — 209, R. C. S. 1925, provides: “That the county court of Deaf-Smith, -Par-mer, Randall, Castro, and Lubbock counties and the unorganized counties of Bailey and •Lamb shall have and exercise original 'concurrent jurisdiction with the justices courts in all civil matters which by the general laws of this state is conferred upon justices courts.”

We construe this statute to have effect to confer on the county courts of the counties named original concurrent jurisdiction with the justice courts in- all civil cases. Under the general law justice courts have exclusive original jurisdiction of all civil cases “where the amount in controversy is two hundred dollars or less, exclusive of interest.” Section 19, art. 5, Texas Constitution; article 2385, R. O. S. 1925. The effect of article 1970— 209, supra, is to confer on the county court of Deaf Smith county original jurisdiction in civil cases where the amount in controversy is $200 or less. The last-mentioned article is valid and constitutional. Section 22, art. 5, Texas Constitution.

It is the settled law of this state that in a case where the amount of recovery ’sought is within the jurisdiction of the county court, but the property sought to be foreclosed on under a contract lien is of a value within the exclusive jurisdiction of the district court, the district court, and not the-county court, has exclusive original.jurisdiction. In other words, in such instances,.the jurisdiction is determined by the value of the mortgaged property sought to be foreclosed on, and not the money recovery sought. Jenkins v. Parks (Tex. Com. App.) 49 S.W.(2d) 714. In the case at bar the money recovery sought is within the jurisdiction of the county court of Deaf Smith county. Also the value of the truck and body actually foreclosed on is within the jurisdiction of such court .as found by the judgment. In spite of this we think the petition of the plaintiff is insufficient to confer jurisdiction on such county court as will later appear.

The jurisdiction of a court is determined, not by the judgment rendered, but by the petition. City of Fort Worth v. Zane-Cetti (Tex. Com. App.) 29 S.W.(2d) 958. It is settled that the petition must affirmatively show jurisdiction, and a judgment rendered by a county court on a petition which fails to affirmatively plead facts bringing the case within its jurisdiction presents fundamental and reversible error. De Witt County v. Wischkemper, 95 Tex. 435, 67 S. W. 882; Williams v. Givins (Tex. Civ. App.) 11 S.W.(2d) 224; Lunsford v. Pearce (Tex. Civ. App.) 19 S.W.(2d) 71; Jaco v. W. A. Nash Co. (Tex. Civ. App.) 269 S. W. 1089; McMillan v. First National Bank (Tex. Civ. App.) 269 S. W. 112; Butts v. Hudgins (Tex. Civ. App.) 255 S. W. 762; Davis v. First Nat. Bank (Tex. Civ. App.) 248 S. W. 119; People’s Ice Co. v. Phariss (Tex. Civ. App.) 203 S. W. 66; Stricklin v. Arrington & Carter (Tex. Civ. App.) 141 S. W. 189; McIntyre v. Oliver Motor Co. (Tex. Civ. App.) 20 S.W.(2d) 241; Salamy v. Bruce (Tex. Civ. App.) 21 S.W.(2d) 380; Stephens v. Collins Piano Co. (Tex. Civ. App.) 28 S.W.(2d) 255; Richardson v. Renfro Hardware Co. (Tex. Civ. App.) 33 S.W.(2d) 466; Peters v. Hubb Diggs Co. (Tex. Civ. App.) 35 S.W.(2d) 449; Welder v. First State Bank (Tex. Civ. App.) 37 S.W.(2d) 848; Fuqua v. Mapes (Tex. Civ. App.) 40 S.W.(2d) 847.

Brumley moves to dismiss the writ'of error on the ground that there is no conflict between the holdings of the Court of Civil Appeals in the ease at bar, and the holdings in the cases above cited. In this connection Brumley seems to contend that there is no conflict because the cases cited involved default or contested judgments; whereas, the case at bar involves a judgment by consent. This contention is untenable. The cases cited by us sustain the rules of jurisdiction we have announced, while the effect of the opinion of the Court of Civil Appeals in the case at bar is to announce a contrary or conflicting rule. It follows that a direct conflict-within the meaning of subdivision 1 of article 1821, R. C. S. 1925, as amended by Acts 41st -Legislature, 1929, c. 33, § 1 (Vernon’s Ann. Civ. St. art. 1821, subd. 1), is presented.

Jurisdiction of a court is the power or authority by which it takes cognizance of, and decides, cases. If the court has no jurisdiction of the subject-matter of the litigation, any-judgment it may render is void.- 11 Tex. Jur. 711, § 9 et seq., and notes. Jurisdiction may be said to be of two kinds; of the subject-matter, and of the person. Consent may give jurisdiction of the person, but cannot do so as to the subject-matter. 11 Tex. Jur. p. 715, § 12, and notes. It follows that even if the instant judgment was entered by consent, it is illegal because the petition is insufficient .to confer jurisdiction of the subject-matter.

Finally we hold that a conflict within the meaning of subdivision 1 of article 1821, supra, is substantially the same as a conflict within the meaning of article 1855, R. C. S. 1925, and means; “If facts in issue, which are involved in a particular ruling in each of the two cases, are materially the same in both cases, and the decision of the court in one case, as to the legal effect of such facts, is contradictory to that of the other court in the other case, then a conflict of decision occurs,”, etc. Layton v. Hightower, 118 Tex. 166, 12 S.W.(2d) 110. The ruling regarding jurisdiction in the present case, and the rulings in the cases cited above, present such a. conflict.

We-recommend that the motion to dismiss the writ of error be overruled, and that the judgments of 'the Court of Civil Appeals and county court be both reversed, and the cause remanded to the county court for further proceedings in accordance with this opinion.

CURETON, O. J.

The judgments of the county court and Court of Ciyil Appeals are both reversed, and cause remanded, as recommended by the Commission of Appeals.

We approve the holdings of the Commission of Appeals on the questions discussed in its opinion.