author: O’QUINN, Justice.

text:
    FAYETTEVILLE INDEPENDENT SCHOOL DISTRICT et al., Appellants, v. J. B. CROWLEY et al., Appellees.
    No. 12306.
    Court of Civil Appeals of Texas, Austin.
    Oct. 1, 1975.
    Rehearing Denied Oct. 22, 1975.

      Robert J. Adam, Adam, Adam & Anderson, Inc., Houston, for appellants.
    Richard T. Halpain, Hart & Halpain, La Grange, for appellees.
   O’QUINN, Justice.

Appellees as landowners brought this action in September of 1974 to set aside raises in property values attempted by the board of equalization of the Fayetteville Independent School District for the year 1974 with respect to a certain class of rural property. Appellees alleged also that suit was brought as a class action in behalf of all other taxpayers similarly situated. As a basis for the suit, appellees alleged that the board of equalization raised the values of all rural property, in tracts consisting of ten acres or more, above the values rendered by the owners or assessed by the assessor, without written notice to the owners as required by statute.

At the conclusion of the evidence before a jury, the trial court granted appellees’ motion for an instructed verdict, discharged the jury, and entered judgment setting aside the action of the equalization board and enjoining the school district from collecting taxes on valuations in excess of the valuations previously rendered or assessed for 1974. The school district, its board of equalization, and the tax assessor have appealed. We will affirm the judgment of the trial court.

The trustees of the school district, in response to a request from the board of equalization for guidance on valuation of rural property, advised the board, by resolution adopted in May of 1974, that all rural tracts of land should be valued on the basis of $300 per acre for tracts of one to five acres, $150 per acre for tracts of more than five but not more than ten acres, and $100 per acre for all rural tracts in excess of ten acres. The resolution was amended later, in June of 1974, without affecting the recommended value of tracts larger than ten acres. The valuations challenged in this lawsuit involve only the rural tracts in excess of ten acres.

Prior to April 30 of 1974 the assessor received renditions from most of the taxpayers, who rendered their property at the same value placed on it for 1973. The assessor placed all unrendered property on the lists at 1973 values. Rural tracts in 1973 varied in valuation from $28 per acre to $90 per acre. The record shows that the rural tracts were owned by about 505 different taxpayers.

In the latter part of July, 1974, the board of equalization for the school district met and revalued all rural tracts in excess of ten acres at $100 per acre. This action had the effect of raising the value of all rural tracts above the values appearing on the lists or books of the tax assessor. None of the appellees appeared at the meeting of the board of equalization, and no other taxpayer appeared or was heard “regarding the value of this rural land.”

It is undisputed that although notice of the July meeting of the board of equalization was published in a newspaper and announced by radio, “no individual written notice [was] given to any of the rural owners of the land.” At the conclusion of the meeting in July, members of the board of equalization signed and delivered the tax rolls to the assessor, and the board adjourned without fixing a subsequent date for hearing property owners on the increased valuations and without directing that notices be mailed to the owners according them to opportunity to be heard.

In assessing taxes of independent school districts the assessor must perform the duties of office under the same statutes controlling the actions of assessors of taxes for general law cities and towns. Section 23.91, Texas Education Code (derived from Art. 2791, Vernon’s Anno.Civ.Sts.); Seguin Independent School District v. Blumberg, 402 S.W.2d 552, 554 (Tex.Civ.App. San Antonio 1966, writ ref. n.r.e.).

The controlling statutes, therefore, for assessing taxes in independent school districts are the articles found in Title 28, chapter 5, V.A.T.S., and, unless adopted by a school district, the statutory articles of Title 122, designed primarily to apply to taxes for state and county purposes, are not applicable. Skinner Corporation v. Calallen Independent School District, 409 S.W.2d 929, 933 (Tex.Civ.App. Corpus Christi 1966, no writ); Seguin Independent School District v. Blumberg, supra. Section 23.93(d) of the Code requires that assessments by the assessor “shall be equalized by a board of equalization appointed for that purpose by the board of trustees of the independent school district. When assessments are so equalized, the assessor-collector shall prepare the tax roll of said district.” (Emphasis supplied)

The required procedure, when values are raised by the board of equalization, is prescribed by Article 1053 of Title 28:

“In all cases where the board of equalization shall raise the value of any property appearing on the lists or books of the assessor, they shall, after having examined such lists or books and corrected all errors appearing therein, adjourn to a day not less than ten nor more than fifteen days from the date of adjournment, such day to be fixed in the order of adjournment, and shall cause the secretary of said board to give written notice to the owner of such property or to the person rendering the same of the time to which said board has adjourned, and that such owner or person rendering said property may at that time appear and show cause why the value of said property should not be raised. Such notice may be served by depositing the same, properly addressed and postage paid, in the city post office.” (Emphasis added)

Under the mandatory precept of the statute, it is clear that when the school district’s board of equalization raised the value of rural tracts above the rendered and assessed values already on the books of the assessor, the board was required to adjourn its meeting to another day, not less than ten nor more than fifteen days later, and to give written notice, which could be mailed, to all landowners affected by the raise, advising them of the subsequent day on which they might appear and be heard if they objected to the raise in values.

After raising the rural values, the board adjourned without setting a time for protests and without giving written notice to each landowner affected by the raises of a later time when objection would be heard by the board. The Supreme Court in 1954 held that: “As to those Pandowners] who were not given the required notice and did not waive it by voluntary appearance, the Board of Equalization acquired no jurisdiction to raise the values at which their property was rendered.” City of Arlington v. Cannon, 153 Tex. 566, 271 S.W.2d 414, 416 (1954). It appears from the record that not one of the individual appellees, nor any other landowner within the class of more than 500 represented, was notified in writing prior to the July meeting of the board when the raises were attempted, and none appeared. No one was given an opportunity thereafter to appear, as the board adjourned its July meeting without providing a later hearing as required by Article 1053.

Appellants contend that the doctrine of Cannon is inapplicable in this case because (1) appellees knew in advance when the board of equalization would meet in July and had the right to appear in opposition to adoption of any tax plan suggested by the board of trustees, and (2) . . by subsequent appellate court holdings, the rule as announced in City of Arlington v. Cannon has been changed and/or modified.”

Neither contention is sustainable. Appellants apparently assume, under their first contention, that if appellees knew when the board would meet and did not appear, ap-pellees waived their right, or were es-topped, to object later to the board’s action attempting to raise the value of rural tracts.

It is settled law that a board of equalization is a quasi-judicial body, charged with inspection, correction, equalization, and approval of assessments made by the assessor. Pritchard & Abbott v. McKenna, 162 Tex. 617, 350 S.W.2d 333 (1961); University of Texas, Yudof, The Property Tax in Texas, 51 Texas L.Rev. 885, 892-3 (1973); Baylor University, Tack-ett, Remedy for Unjust and Unfair ad Valo-rem Tax Assessment, 11 Baylor L.Rev. 363, 367 (1959); 54 Tex.Jur.2d, Taxation, sec. 103, p. 267 (1975 PP).

Notice required under Article 1053 is comparable to notice of a judicial proceeding. Tackett, in Baylor Law Review, supra, stated the principle in this language:

“All cases discussing the function of the Board of Equalization refer to such Board as a ‘quasi-judicial’ body. Facts of value found by the Board partake of the same characteristics as a finding of fact by a trial court. Just as notice is required in a judicial proceeding before an adjudication is binding, so it is required to be given when the Board of Equalization intends to put a greater tax burden on the property owner than that which already exists.” (11 Baylor L.Rev. 367)

The rule stated by the Supreme Court in Cannon is explicit and without qualification that as to those property owners “not given the required notice and did not waive it by voluntary appearance, the Board of Equalization acquired no jurisdiction to raise the values at which their property was rendered.” (Emphasis supplied) Without notice given in the manner required by Article 1053, the board’s attempt to raise values at which appellees rendered their property was void for want of jurisdiction. The principle stated in Cannon in 1954 was not novel, but a teaching established earlier, as indicated by the Court. City of San Antonio v. Hoefling, 90 Tex. 511, 39 S.W. 918 (1897); City of El Paso v. Howze, 248 S.W. 99 (Tex.Civ.App. El Paso 1923, writ ref.). For later application, see City of Houston v. Union City Transfer, 307 S.W.2d 645, 649 (Tex.Civ.App. Houston 1957, no writ).

Appellants’ second contention, in an effort to avoid the holding in Cannon, is that somehow the rule has been changed, or modified, by later “appellate court holdings.” Five of the six holdings relied on are by courts of civil appeals. The holding of the Supreme Court in the sixth case is that notice by publication in newspapers was insufficient to give a Houston property owner actual notice of a hearing to determine costs to be assessed for street improvements. (City of Houston v. Fore, Tex., 412 S.W.2d 35, 39). The first of the holdings by courts of civil appeals, in City of Houston v. Union City Transfer, supra, followed both Cannon and Hoefling, supra, in striking down two raises attempted by a board of equalization, when required notice was not given, and upholding only an increased assessment by the assessor in a year the property was unrendered. (307 S.W.2d 649, col. 1). We have examined the remaining holdings relied on and find that the courts of civil appeals have not in any manner sought to change or modify the holdings of the Supreme Court in Cannon or Hoeñing, or its approval of Howze. The integrity of Cannon appears unblemished.

Appellants also contend on appeal that under the principle of State v. Whittenburg, 153 Tex. 205, 265 S.W.2d 569 (1954), appellees should be required to show substantial injury if they are to obtain relief from taxes imposed on values above the values rendered. The argument is that, “It is unusual to say the taxing agency may violate the constitutional and/or statutory method in establishing values of properties and be upheld if the taxpayer cannot show he was substantially harmed, but if a procedural point was not followed in exact detail, the action will be set aside no matter if the taxpayer was harmed or benefited.”

In Whittenburg the Court held, “When the attack is made because the board followed an arbitrary plan or scheme of fixing values, the taxpayer, to prevail, must show not only that the plan was an arbitrary and illegal one but also that the use of the plan worked to his substantial injury.” (265 S.W.2d 573, col. 2). It is interesting to note that the justice who stated the rule in Whittenburg in 1954 nine months later, in 1954, also stated the rule of the Court in Cannon. The difference between the two decisions, of course, lies in the basic principle of jurisdiction, not on “a procedural point . . . not followed in exact detail.”

We are not concerned here with an attack upon the school district’s attempt to adopt a scheme or plan of taxing rural property, or that the plan resulted in inequalities of taxation among the owners of the various tracts. Appellees as plaintiffs below did not contend, and do not on appeal contend, that the values as raised were in excess of market value, or that market value was not used, or that injury resulted to them by reason of irregularities in the tax plan and levy.

The position of appellees is that the equalization board’s action, in raising values without giving the required notice and opportunity to be heard, rendered void raises the board attempted to make. Appellees say that the board of equalization did not acquire jurisdiction to raise the values above renditions and assessments shown on the assessor’s record.

Appellees were not required to show injury resulting from an action which was void for want of jurisdiction.

In considering preliminary motions early in the trial of this case, the court dismissed a voluntary group of 36 persons designated the “Property Owners Protection Association,” but declined to disallow the suit as a class action brought by appellees for themselves and in behalf of more than 500 owners of rural tracts containing more than ten acres.

Appellants bring a point of error under which they challenge the trial court’s ruling permitting the class action. The record fails to disclose that appellants complained of the court’s action in motion for new trial, as required by Rules 324 and 325, Texas Rules of Civil Procedure. The ruling of the trial court must be considered as acquiesced in by appellants and may not be attacked on appeal.

The trial court permanently enjoined the Fayetteville Independent School District from “collecting any school taxes for 1974 on rural land of more than 10 acres levied on the increase in valuation . . . that is on school taxes in excess of an amount computed by using the rendered value . or the value assessed by the Tax Assessor . . on or prior to April 30, 1974 . . . ” The court made provision in the judgment for payments under protest and for voluntary payments by taxpayers in disregard of the judgment, and prescribed procedures for payments under protest and for refunds.

We find no error in the judgment and overrule all points of error under which appellants have appealed.

The judgment of the trial court is in all things affirmed.

Affirmed.

      . Appellants who were defendants below are Fayetteville Independent School District, the Trustees of the District, the Board of Equalization of the District, and the Tax Assessor for the District; appellees are J. B. Crowley, L. H. Moore, and Roy R. Euton, individually, and in a representative capacity for and on behalf of all other persons of the same class and similarly situated. The trial court dismissed the Property Owners Protection Association as a party plaintiff below, and the Association is not an appel-lee.


source: Caselaw Access Project

author: McCLOUD, Chief Justice.

license: Public Domain

text:
    Teddy Charles HERRON, Appellant, v. CITY OF ABILENE et al., Appellees.
    No. 4797.
    Court of Civil Appeals of Texas, Eastland.
    Oct. 3, 1975.
    Rehearing Denied Oct. 24, 1975.
    W. L. Burke, Jr., Robinson, Hanna, Burke & Moore, Inc., Abilene, for appellant.
    Robert D. Cheatham, City Atty., Harvey Cargill, Jr., Asst. City Atty., Abilene, for appellees.
   McCLOUD, Chief Justice.

The Firemen’s and Policemen’s Civil Service Commission of the City of Abilene entered an order permanently dismissing Officer Teddy Charles Herron from the Abilene Police Department. Herron appealed to the district court which affirmed the order of the Civil Service Commission. Herron has appealed. We affirm.

Herron’s sole contention is the defendants, City of Abilene and the Firemen’s and Policemen’s Civil Service Commission of the City of Abilene, failed to prove in the district court the notice of suspension was filed with the Civil Service Commission within 120 hours as required by Article 1269m, Section 16, Tex.Rev.Civ.Stat.

Herron argues the defendants had the burden of proving in the district court all steps required by Article 1269m, Section 16, had been properly performed. We disagree.

There is no allegation in Herron’s pleadings defendants failed to comply with the 120 hour rule, nor is there any evidence the notice of suspension was not filed within 120 hours. The record does not disclose when the notice of suspension was filed with the Civil Service Commission.

We think the proper rule was announced in the recent case of Cusson v. Firemen’s and Policemen’s Civil Service Commission of San Antonio, 524 S.W.2d 88 (Tex.Civ.App.—San Antonio 1975, no writ), wherein the court said:

“It is also well settled that the party seeking to set aside the order of an administrative agency has the burden of proving that the order is not reasonably supported by substantial evidence. Redd v. Texas Employment Commission, 431 S.W.2d 16 (Tex.Civ.App.—Corpus Christi 1968, writ ref. n. r. e.). This conclusion is compelled by the fact that where judicial review of administrative action is governed by the substantial evidence rule, the action of the administrative body is presumed to be valid. City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966). We make this observation because the record before us reflects that the trial court was of the opinion that the burden was on the administrative agency to establish that its action was reasonably supported by substantial evidence. That is, the trial court placed on the commission the burden of establishing the validity of its action. The burden of producing evidence establishing the invalidity of the administrative action is clearly on the party challenging the action.” (Emphasis added)

In Firemen’s and Policemen’s Civil Service Commission of City of San Antonio v. Shaw, 306 S.W.2d 160 (Tex.Civ.App.—San Antonio 1957, writ ref. n. r. e.), the appellee, a policeman, contended it was the duty of appellant, Civil Service Commission, to prove up and introduce the rules and regulations of the Civil Service Board and the Police Department which appellee was charged with violating. The court said:

“Parties are bound by their pleadings, and in the light of the pleadings of appel-lee this Court will presume, in the absence of anything to the contrary, that all the proceedings were regular and proper, and that the regulations which appellee was charged with violating had been properly promulgated by the Civil Service Commission.”

See also: City of San Antonio v. Texas Water Commission, 407 S.W.2d 752 (Tex.1966); Cash v. City of Houston, 426 S.W.2d 624 (Tex.Civ.App.—Houston (14th Dist.) 1968, writ ref. n. r. e.); and Bryant v. City of San Antonio, 464 S.W.2d 888 (Tex.Civ.App.—San Antonio 1971, no writ).

The cases relied upon by Herron are distinguishable. Bichsel v. Carver, 159 Tex. 393, 321 S.W.2d 284 (1959), and Crawford v. City of Houston, 487 S.W.2d 179 (Tex.Civ.App.—Houston (14th Dist.) 1972, writ ref. n. r. e.), were mandamus suits brought by the dismissed policemen and not appeals from the order of an administrative agency. In City of San Antonio v. Poulos, 422 S.W.2d 140 (Tex.1967); Skates v. City of Paris, 363 S.W.2d 425 (Tex.1963); City of Sherman v. Arnold, 148 Tex. 516, 226 S.W.2d 620 (1950); Todd v. City of Houston, 508 S.W.2d 140 (Tex.Civ.App.—Houston (1st Dist.) 1974, writ ref. n. r. e.), and Civil Service Commission of City of Lufkin v. Crager, 384 S.W.2d 381 (Tex.Civ.App.—Beaumont 1964, writ ref. n. r. e.), there was evidence of noncompliance with Article 1269m.

The order of the administrative body is presumed to be valid. Herron, who challenged the order, had the burden of producing evidence establishing the invalidity of the order.

The judgment of the trial court is affirmed.


author: SHANNON, Justice.

text:
    G. Bradley BOURLAND, Appellant, v. The STATE of Texas, Appellee.
    No. 12303.
    Court of Civil Appeals of Texas, Austin.
    Oct. 8, 1975.
    Rehearing Denied Oct. 29, 1975.

      Mitchell, George & Belt, Arthur Mitchell and Jan Woodward Fox, Austin, for appellant.
    John L. Hill, Atty. Gen. of Tex., William 0. Goodman, Asst. Atty. Gen., Austin, for appellee.
   SHANNON, Justice.

This appeal involves Tex.Bus. & Comm. Code Ann. art. 17.41, et seq., and its predecessor, Tex.Rev.Civ.Stat.Ann. art. 5069-10.-01, et seq. Article 17.41, et seq., is commonly known as the Deceptive Trade Practices-Consumer Protection Act. Article 17.46(a) of that Act declares unlawful any false, misleading, or deceptive acts or practices in the conduct of any trade or commerce.

Appellee, the State of Texas, filed suit in the district court of Travis County against appellant, G. Bradley Bourland, individually, and as president of Kurbo, Inc., and as an officer of Hacienda de Oro Products, Inc., Falcon Advertising and Sales, Inc., and Falcon Financial Corporation, and other defendants seeking to enjoin them from committing certain alleged deceptive acts, for penalties, and for restitution of money for the benefit of certain persons who had paid money pursuant to alleged deceptive trade practices. Upon final hearing, the court entered a judgment which provided, among other things, that Taylor, Levy, and Bourland pay $50,026.40 into the registry of the court . .as restitution of monies acquired by . [those persons] . pursuant to deceptive trade practices . . . ” It is from that portion of the judgment that Bourland has taken an appeal to this Court. We will affirm the judgment.

In its petition, the State pleaded that the defendants Taylor, Levy, and Bourland were engaged in the promotion, development and construction of a purported resort and retirement community located on Lake Falcon in the state of Tamaulipas, Republic of Mexico. That development was allegedly marketed by those persons as “Lake Falcon Country Club,” “Lake Falcon Country Club Estates,” and “Club Campestre de Lago Falcon.” Appellee alleged further that those persons promoted the development through a combination of various corporate and partnership entities, some of which were: Falcon Financial Corporation, Inc., Falcon Advertising and Sales, Inc., Hacienda de Oro Products, Inc., and Kurbo, Inc., Compañía Constructora de Falcon, S. A., and Country Club Membership Sales.

The State pleaded further that the false representations and fraudulent conduct made the basis for the suit arose from a common scheme or conspiracy originally between Taylor, Levy and others. Allegedly those persons would solicit and receive large sums of cash from unsophisticated investors under the guise of developing the resort-retirement complex, but instead those sums were to be converted to their own use. The State alleged that Bourland by his conduct subsequently became an active participant in the said scheme, that he furthered its purpose and enjoyed a portion of the proceeds gathered in by the realization of the scheme, and for all purposes should be treated as a co-conspirator.

The State alleged that by August, 1972, Taylor, Levy, and Bourland began promoting and advertising the Lake Falcon project to residents of Texas and Florida. Lots and homesites were sold and memberships in the limited partnership known as “Country Club Membership Sales” were solicited from the general public. A membership could be purchased for $6,000.00 and it would entitle one to the use of a lot in the development; to two shares of stock in Compañía Constructora de Falcon, S. A.; to the use of the country club and marina currently under construction or soon to be constructed; and to employment opportunities in the planned community at the resort development. The State pleaded that in the course of promoting the development, soliciting memberships in the country club, and in selling homesites, condominiums, and townhouses, Taylor, Levy, and Bourland engaged in the following acts and made the following misrepresentations in violation of Tex.Rev.Civ.Stat.Ann. art. 5069-10.02 and Tex.Bus. & Comm.Code Ann. art. 17.46(a):

(1) Representing that Taylor had invested substantial amounts of his own capital in the project.

(2) Representing that Taylor exercised legal control over acreage located on the southern shores of Lake Falcon in northern Mexico that would be used as the site of the proposed development.

(3) Representing that the $6,000 membership investment made by the investors in the Country Club Membership Sales would be held in trust by G. Bradley Bourland, trustee.

(4) Representing that the Banco Nacional de Mexico, S. A. guaranteed the legal title in trust for investors in the limited partnership or alternatively guaranteed the usu-fruct right to these investors in the said 36,000 acres or that a portion of the said acreage was to be purchased with partnership funds.

(5) Representing that the Banco Nacional de Mexico safeguards incoming funds, payment of taxes, and essential services as further security to the limited partners and members of the development.

(6) Representing that the trust agreement with the Banco Nacional de Mexico guaranteed title or the usufruct right to the land continued in perpetuity and was freely assignable and inheritable by the heirs of the member or investors.

(7) Representing that the following facilities had been or were being constructed at the site of the Lake Falcon Country Club or Club Campestre Lago Falcon:

Country clubs, motels, condominiums, homes, shopping centers, churches, marinas, mobile home parks, Two Worlds Recreation Amusement Park, hospital, hunting preserves, cultural village, health spa, camping facilities, golf courses, townhouse apartments, supermarkets, tennis clubs, riding stables, bull ring, private airport, convention hall, Jai-Lai Fronton, fishing piers, international restaurants, theatre clubs, athletic stadium, recreational parks, international culture trade mart, service station, farmers market, and location sets for motion picture companies.

(8) Representing that a $6,000.00 membership in the limited partnership known as Country Club Membership Sales would entitle the investor to the use of a lot or a mobile home site in the development.

(9) Representing that the development was to be built on a constant level lake and that lake front lots would be made available to investors.

(10) Representing that an investor in Country Club Membership Sales would be guaranteed a job at the development at a salary of at least $20,000.00 each year.

(11) Representing that the two shares of stock in Compania Constructora de Falcon, S. A. which were transferred to each investor in the Country Club Membership Sales had a present value of $3,000.00.

(12) Representing that townhouses or condominiums would be constructed at a certain pre-development price which was $3,000.00 below the real value.

Appellant Bourland was the only defendant who filed an answer. By way of defense, appellant averred that he was an attorney and that in the autumn of 1971 Taylor employed him to draw the necessary instruments creating legal entities through which the development of the Lake Falcon project could be accomplished. Pursuant to that employment he set up Falcon Advertising and Sales, Inc., Hacienda de Oro Products, Inc., and Falcon Financial Corporation.

Bourland denied knowledge or notice of any scheme or conspiracy on the part of the other defendants to defraud anyone. He pleaded further that the other defendants had duped him and that he had lost considerable time, effort, and money in discharging his duty as an attorney. He claimed that in disbursing funds he acted as an attorney and as an employee following the directions and instructions of his clients. He denied misrepresenting or causing to be done any act to procure those funds. He denied further that he appropriated any of those funds, and he denied having “. any agreement to participate in the spoils of this scheme and gigantic fraud conceived and executed by the other defendants herein.”

Bourland answered further that, “While it is admitted that some of the acts which have been voluntarily disclosed to the Plaintiff [the State] on the part of G. Bradley Bourland appear to cast him in light as principal, his sole role here was as attorney, as employee, and as agent; he sought only to discharge his duty as a conscientious attorney and not to play a principal role in any plan, scheme, or contrivance to defraud the public.”

Upon final hearing the court entered judgment adverse to the defendants. That, judgment recited that “. . . the facts are what the Plaintiff [appellee] has alleged in its petition and that the Defendants have engaged in certain acts and practices in violation of Article 5069-10.02, V.T.C.S., The Texas Deceptive Trade Practices Act and Section 17.46 of the Texas Business & Commerce Code, the Texas Deceptive Trade Practices-Consumer Protection Act . .” As already stated, the judgment provided that Taylor, Levy, and Bourland pay into the registry of the court $50,026.40 as restitution of monies acquired by them “pursuant to deceptive trade practices.”

Appellant attacks the judgment by a number of points of error. Appellant claims by points of error three and four that the court erred in entering judgment against him since there was no evidence, or insufficient evidence, that “. . . Appellant was a [sic] active participant in a conspiracy to defraud individuals identified in Plaintiff’s Original Petition.” (Emphasis added)

Appellant’s points three and four misapprehend the case pleaded by the State and the judgment entered by the district court. The State pleaded and the effect of the judgment of the district court was that Taylor, Levy, and Bourland had entered into a conspiracy to obtain property by engaging in false, misleading, or deceptive acts and practices in violation of Art. 17.41, et seq. of the Tex.Bus. & Comm.Code. Contrary to appellant’s assertions, the State did not undertake the rather onerous burden of proving a conspiracy to commit actionable fraud.

It may be said, in general, that an actionable civil conspiracy is a combination by two or more persons to accomplish an unlawful purpose or to accomplish a lawful purpose by unlawful means. State v. Standard Oil Co., 130 Tex. 313, 107 S.W.2d 550, 559 (1937), International Bankers Life Ins. Co. v. Holloway, 368 S.W.2d 567 (Tex.1963). The agreement need not be formal, the understanding may be a tacit one, and it is not essential that each conspirator have knowledge of the details of the conspiracy. Dale v. Temple, 186 Tenn. 69, 208 S.W.2d 344 (1948), Brumley v. Chattanooga Speedway and Motordrome Co., 138 Tenn. 534, 198 S.W. 775 (1917). It is not required that each and every act of a conspirator be shown to have been in concert with the others or that it be established by direct evidence that all combined at a given time prior to each transaction. Inferences of concerted action may be drawn from joint participation in the transactions and from enjoyment of the fruits of the transactions on the part of the conspirators. International Bankers Life Ins. Co. v. Holloway, supra. Upon entering the conspiracy one becomes a party to all acts previously or subsequently done by any of the other conspirators in pursuance of the conspiracy. State v. Standard Oil Co., supra.

We have found no cases in point involving a conspiracy to engage in false, misleading, or deceptive acts. However, applying the above general rules, it would seem that to show a conspiracy to engage in false, misleading, or deceptive acts or practices in violation of Art. 17.41 of the Tex. Bus. & Comm.Code requires proof of an agreement to obtain property from others by engaging in a course of conduct which the parties know has a tendency or capacity to deceive.

With respect to the proof necessary to establish a civil conspiracy it is not necessary that the conspiracy be shown by direct evidence. International Bankers Life Ins. Co. v. Holloway, supra. The case may be established by circumstantial evidence. Schlumberger Well Surveying Corp. v. Nortex Oil & Gas Corp., 435 S.W.2d 854, 858 (Tex.1968).

We will treat points of error three and four as raising the issue of whether there was any evidence raising a fact issue as to appellant’s status as a conspirator in a conspiracy to violate Art. 17.41, et seq. of the Tex.Bus. & Comm.Code and whether the judgment of the district court, in so .holding, was contrary to the great weight and preponderance of the evidence. As phrased by the State, the question for resolution by this Court is whether the evidence supports a reasonable inference that appellant had actual knowledge that the practices of Taylor and Levy had a capacity to deceive, and that those practices were done for the purpose of acquiring property or money of others, and that appellant intended to participate therein and to share in the gains so derived.

The statement of facts consists of 1,066 pages and the parties introduced about one hundred fifty-three exhibits. The details of Taylor’s plan for development of the Lake Falcon project are unclear, and one concludes that the project was never a sufficient reality to make it necessary to consider details. The record is, however, replete with description of the transactions by which Taylor and Levy obtained the money supposedly to be used for the capitalization of the project. The following paragraphs represent our effort to summarize the transactions culminating in this suit.

Appellant Bourland testified that he had been licensed to practice law since 1950. He formerly served as Securities Commissioner of the State of Texas and as an assistant attorney general of the State of Texas. He attempted to concentrate most of his professional attention to a practice concerning securities and corporate affairs.

Bourland testified that Taylor came to him in the autumn of 1971 seeking legal assistance in connection with the proposed development on Lake Falcon. Taylor represented to Bourland that he owned, or at least had some character of possessory rights to, some 30,000 acres of land in Mexico on the south side of Lake Falcon for which he had paid about $3,000,000. Taylor told Bourland that he owned other property in Mexico and in this country and indicated to Bourland that he was a man of wealth and substance. Bourland never saw the acreage on Lake Falcon, but Taylor showed him some character of legal document written in Spanish which he said was a deed. Bourland does not read Spanish and he never had anyone translate that document for him.

After several conferences it was agreed between Taylor and Bourland that Bour-land would receive, as a fee for his legal services, a ten percent proprietary interest in all of the legal entities which he set up. He was also to be reimbursed for expenses.

Before Bourland had undertaken any legal work on the project, and as early as October 1971, Taylor, his wife, and Levy began importuning Bourland frequently for sums of money as large as $1,000.00 and as small as $100.00. Bourland testified that he advanced to them about $27,894.04 of his personal funds with the understanding that the money would be repaid by the development project or by Taylor. It was Bour-land’s impression that Taylor needed the advances to live on, and by this point in time he realized that Taylor “. . . did not have the cash to do these things with.”

By the summer of 1972, Taylor had indicated to Bourland that he needed money before he could start the development since Taylor said that he did not want to sell his assets or the land in Mexico to raise the necessary cash.

By the summer of 1972, Bourland had drafted the legal instruments necessary for the creation for Falcon Advertising and Sales, Inc., and Kurbo, Inc. Neither of the corporations were capitalized at the time of their creation, and at trial time neither had any substantial assets. Both corporations were designed as marketing vehicles for development properties. More specifically both corporations were to be general partners in limited partnerships which would handle the sales of memberships in Texas. Bourland was elected secretary of Falcon Advertising and Sales, Inc., and he was authorized to write all of the checks for the corporation and to receive the deposits from the potential investors. '

Taylor caused to be prepared a brochure extolling the advantages of the Lake Falcon Country Club Development in which brochure that development was billed as “. . .a NEW garden spot in the world . ” The “master plan” of the development, as stated by the brochure, showed a variety of improvements so ample that there seemed to be something for everyone. These improvements included motels, condominiums, homes, shopping centers, churches, marinas, mobile home parks, the “Two World” recreation amusement park, hunting preserves, a cultural village, a hospital, a health spa, golf courses, townhouse apartments, tennis clubs, riding stables, a bull ring, a private airport, a racetrack, and international restaurants. The brochure also described how persons could obtain an interest in the development.

One page in the brochure listed “Lake Falcon Country Club Attorneys and Corporation Officers. Under that heading appeared the following:

“UNITED STATES:
Bradley Bourland, Attorney at Law
1701 West Avenue — Austin, Texas
Phone: 477-6788
“Bachelor of Business Administration, 1943; Bachelor of Law, 1949, University of Texas, was President of the University of Texas Student Body. Assistant Attorney General, 1950 to 1954. Securities Commissioner 1954-1956. Vice Chairman of the National Association of Securities Administrators. President of the Austin Texas Exes Club and councilman of the University of Texas Ex-students Association for the Austin area. He is also very active in Masonic activities, Past master of University Lodge No. 1190, Past Commander of Commandery, York Rite Mason, Scottish Rite Mason and Shriner. He has been in private practice since 1956 primarily in business, real estate corporate, and security fields.”

Bourland testified that he did not give Taylor permission to list his name as an attorney. When Taylor showed the brochure to him, Bourland remonstrated with Taylor, particularly for having included the description of his Masonic activities. Bour-land’s testimony was, however, that he did not forbid Taylor to use the brochure. Though Taylor did not tell Bourland that he was going to use the brochure in connection with the sale of memberships, Bourland assumed that he would. The record shows that Bourland’s assumption was correct.

Taylor and Levy canvassed Texas for investors with only fair success. The main territory which they worked was Florida. In Florida their tale of their project on the shores of Lake Falcon must have been successful because by the latter part of 1972, Bourland began receiving many checks from Florida investors. Between July, 1972, and November, 1973, the Falcon Advertising and Sales, Inc., account received about $209,470.21. Bourland deposited these checks in the Falcon Advertising and Sales, Inc., account. In some instances the deposit slips show “less cash” items in varying amounts. The total amount of the “less cash” items was $22,332.00. The evidence showed that of the total amount of $187,-138.21 deposited in fact to the account, Bourland disbursed $50,855 to Taylor, $15,-450 to Taylor’s wife, $23,401.53 to Levy, and $44,026.40 to himself.

By the fall of 1972 Bourland knew that Taylor and Levy had no intention of conducting the business in an orthodox manner. No ledger books were kept, no accounting was done, and no receipts were furnished.

Because Bourland held the purse strings, he knew to whom the investors’ money went. An examination of the checks which Bourland signed shows that he knew that Taylor, who but only months before had been practically dependent upon him for bread, was now living in the manner of a grandee complete with Cadillac automobiles and expensive apartments. For the same reason Bourland must have realized that little, if any, of the investors’ money was being used- to further the building of the project.

In the spring of 1973 Bourland went to Florida at Taylor’s request. He took with him a large colored poster showing a splendid master plan of the development. There Bourland met with a number of investors in the project. Taylor introduced him to several of these investors as “the trustee of accounts” or as “the man that has your money in trust in Texas.” Bourland knew that these statements were, at best, misleading and he must have realized that those statements would be relied upon as some investors stated such in his presence. At the time of the meeting in Florida, Bourland knew that of the $43,000.00 of contributions deposited since January 1, 1973, a little less than $1,000.00 remained on deposit.

About a month after Bourland’s visit to Florida some of the investors came to Austin and inquired of Bourland about Taylor, the whereabouts of their money, and his thoughts about the project. Bourland replied that Taylor was in good financial shape, that the money was in trust in Mexico, and that “everything was fine” with the project and that it was a “good thing.”

Other investors fearing, in time, that perhaps talk of the lips tendeth only to penury made further inquiry into the title of the land in Mexico and the status of the project. Their concern was justified. The record shows that Taylor owned no acreage in Mexico on Lake Falcon and, of course, neither he nor his corporations had placed any improvements on such land. In that connection, the most that Taylor had obtained was some class of option to buy several thousand acres within the boundaries of the proposed development. That option, however, had expired in October, 1971, long before Taylor had begun his active promotions.

In the autumn of 1973 Taylor left this country for the Republic of Mexico. In October of 1973 shortly before the State filed suit, appellant disbursed $20,000 from the Falcon Advertising and Sales, Inc. account to Levy who took that money to Mexico.

From an examination of the record, some of which has been summarized, we are of the opinion that it may reasonably be inferred from the evidence that Bourland acquired knowledge at some time during the two-year period involved that the acts and practices of Taylor and Levy had the capacity to deceive and that such were done for the purpose of acquiring property or money from others, and that Bourland intended to participate therein and to share in the gains. We are further of the opinion that the judgment entered by the district court is not so contrary to the great weight and preponderance of the evidence so as to be manifestly unjust.

Appellant’s points of error one and two are that the court erred in entering judgment against him because there was no evidence, or insufficient evidence, that “ . . . Appellant personally made any of the misrepresentations or engaged in any of the deceptive acts or practices alleged by the State. (Emphasis added) Because of our view, already expressed, that Bourland was a member of the conspiracy, points of error one and two are not dispositive of the appeal.

By an appropriate point of error appellant says that the district court erred in entering judgment for restitution of money under Tex.Bus. & Comm.Code art. 17.41, et seq. for the reason that the statute does not extend protection to the class of person to whom appellant is ordered to make restitution. Appellant supports this point of error by reference to arts. 17.44 and 17.45 of the Tex.Bus. & Comm.Code. Art. 17.44 provides, among other things, that the sub-chapter shall be liberally construed to protect “consumers” against false, misleading, and deceptive business practices, unconscionable actions, and breaches of warranty. Art. 17.45 defines “consumer” to mean “an individual who seeks or acquires by purchase or lease, any goods or services.” “Goods” are defined in art. 17.45 to mean “tangible chattels bought for use,” and “services” are defined in art. 17.45 to mean “work, labor, and services for other than commercial or business use, including services furnished in connection with the sale or repair of goods.” The “investors” in the Lake Falcon project, says appellant, are outside the scope of the statute since they are not “consumers” inasmuch as they did not seek or acquire “goods” or “services” as therein defined.

Appellant overlooks art. 17.47(d) which empowers the court to “ . . make such additional orders or judgments as are necessary to compensate identifiable persons for actual damages or restoration of money or property, real or personal, which may have been acquired by means of any act or practice restrained.” (Emphasis added) The word, “person,” is defined by art. 17.45(3) as an “ . . . individual, partnership, corporation, association, or other group, however organized.” It may be that appellant has confused the State’s right to seek restitution on behalf of identifiable persons with a citizen’s right to file suit under arts. 17.50 and 17.51. In that category of suit the class of claimants is restricted to “consumers” within the meaning of art. 17.45(4).

We have considered all of appellant’s contentions and find them without merit, and accordingly, the judgment is affirmed.

      . Falcon Advertising and Sales, Inc.; Hacienda de Oro Products, Inc.; Falcon Financial Corporation; Kurbo, Inc.; James Richard Taylor, individually and as president of Falcon Advertising and Sales, Inc.; and Dennis Robert Levy, individually and as an officer of Hacienda de Oro Products, Inc., and Kurbo, Inc.

      . Proverbs 14:23
      “In all labour there is profit: but the talk of the lips tendeth only to penury."


author:
HENLEY, Judge.
      PINCH, Judge

text:
    Del C. PREISLER et al., Plaintiffs-Respondents, v. James C. KIRKPATRICK, Secretary of State, Defendant-Appellant.
    No. 59049.
    Supreme Court of Missouri, En Banc.
    Sept. 8, 1975.
    Irving Achtenberg, David Achtenberg, Kansas City, for plaintiffs-respondents.
    John C. Danforth, Atty. Gen., Andrew Rothschild, Asst. Atty. Gen., Jefferson City, Charles B. Blackmar, Sp. Asst. Atty. Gen., St. Louis, for defendant-appellant.
   HENLEY, Judge.

Del C. Preisler et al. (plaintiffs) sought by their petition (1) a judgment declaring unconstitutional existing senatorial districts on the sole ground that they are not compact; (2) a decree enjoining the Secretary of State (defendant) from taking any action with respect to elections for the state senate until the senatorial districts are reapportioned in accordance with Mo.Const. Art. Ill, § 5; and (3) an order by which the trial court would retain jurisdiction to (a) examine and approve or disapprove, and enforce its orders in connection with, any new reapportionment; and (b) fix and allow attorney fees to plaintiffs. Judgment was for plaintiffs on (1) and (2), and defendant appealed. The judgment fails to mention (3) and plaintiffs, treating this failure as a judgment denying the relief sought therein, have cross-appealed.

The case was submitted to the trial court on the pleadings, a two-part stipulation of facts, and exhibits consisting mostly of maps showing the boundaries of the districts.

In February, 1971, the Governor of Missouri, acting pursuant to Mo.Const. Art. Ill, § 7, appointed a Senatorial Redistricting Commission (Commission) to reapportion and establish the numbers and boundaries of the thirty-four senatorial districts of the state. Thereafter, on August 30,1971, the Commission filed its report with defendant. The report stated, inter alia, the results of its reapportionment of the districts with a description of the boundaries established and the number assigned each district.

The Commission allotted twelve districts to the St. Louis area, comprising St. Louis city, St. Louis county and St. Charles county; five to Jackson county (Kansas City area); and the remaining seventeen districts to the rest of the state. The boundaries of thirty-one districts follow county lines; only three districts cross county lines. Those crossing county lines are: district 1, part of which is in the city and part in the county of St. Louis; district 2, part of which is in St. Louis county and part in St. Charles county; and, district 33, consisting of nine counties and a small portion of Greene county immediately below the southeast corner of Polk county.

The report of the Commission does not contain a statement of its reasons for the location of the boundary lines of the several districts. The parties agree that the shapes of the districts are not the result of physical features of the areas involved and appear to agree that there is no evidence that any historical factors were considered. There is no evidence bearing upon the reasons or motives of the Commission for the location of any part of the boundary line of any district.

The trial court found only that “the Senate Districts * * * are * * * in violation of Article III, Section 5, * * * in that they are not compact.” The court was not requested to do so and did not make and file findings of fact as to any of the districts or state any reasons why it found the districts not compact.

The 1970 decennial census shows Missouri’s population, according to stipulation exhibit 6, to be 4,677,899. The location of that population in the counties of the state is shown by stipulation exhibit 12 (a map from page 1420 of the 1971-72 Official Manual of Missouri), attached to this opinion as appendix 1.

The 1970 population of 4,677,399 divided by 34 (the number of senators, Art. Ill, § 5) produces the quotient of 137,570 (the number of persons per senator, or the population figure each district is required to equal “as nearly as possible”). The numbers of the districts, as established by the 1971 reapportionment, the population of each, and the percentage of variation of that population from the ideal 137,570 persons are shown on stipulation exhibit 6, attached as appendix 2.

A map showing the boundaries of the districts, as apportioned in 1971, except the twelve districts allotted to the St. Louis area and the five allotted to Jackson county, is attached as appendix 3.

A map showing the boundaries of the districts (districts 3, 4, 5, 6 and a part of district 1), as apportioned in 1971, located in the city and county of St. Louis, is attached as appendix 4.

A map showing the boundaries of the districts (districts 7,13,14, 15, 24, 26) located wholly within St. Louis county, that part of district 1 in St. Louis county which adjoins the part of that district in St. Louis city, and that part of district 2 in St. Louis county which adjoins the part of that district in St. Charles county is attached as appendix 5.

A map showing the boundaries of the districts (districts 8, 9, 10, 11 and 16), as apportioned in 1971, located in Jackson county, is attached as appendix 6.

A map showing the boundaries of the districts (district 30 and part of district 33), as apportioned in 1971, located in Greene county, is attached as appendix 7.

As stated, the sole question presented is whether the senatorial districts established by the Commission violate the requirement of Mo.Const. Art. Ill, § 5, that they be “as compact * * * as may be.” We are concerned with the constitutional requirements that they be of contiguous territory and as nearly equal in population as may be only insofar as those requirements may have affected or influenced the “compactness” requirement. Another factor with which we are concerned in connection with the compactness question is the requirement of our constitution that county lines be followed, except when absolutely necessary to cross them for the purpose stated in Article III, § 7, quoted in footnote 3.

In Reynolds v. Sims, 377 U.S. 533, 84 S.Ct. 1362, 12 L.Ed.2d 506 (1964) the United States Supreme Court, holding that a state legislature must be apportioned on a population basis, said: “ * * * the Equal Protection Clause requires that a State make an honest and good faith effort to construct districts, in both houses of its legislature, as nearly of equal population as is practicable. We realize that it is a practical impossibility to arrange legislative districts so that each one has an identical number of residents, or citizens, or voters. Mathematical exactness or precision is hardly a workable constitutional requirement.” 377 U.S. at 577, 84 S.Ct. at 1390.

The court recognized in Reynolds v. Sims, supra, that factors in addition to “equality of population” properly may be considered in reapportionment of state legislative districts: “A State may legitimately desire to maintain the integrity of various political subdivisions, insofar as possible, and provide for compact districts of contiguous territory in designing a legislative apportionment scheme. Valid considerations may underlie such aims. Indiscriminate districting, without any regard for political subdivision or natural or historical boundary lines, may be little more than an open invitation to partisan gerrymandering.” 377 U.S. 578-579, 84 S.Ct. 1390. See also: Mahan v. Howell, 410 U.S. 315, 321-322, 93 S.Ct. 979, 35 L.Ed.2d 320 (1973); Preisler v. Hearnes, 362 S.W.2d 552, 556[2] (Mo. banc 1962). But the court emphasized that in accomplishing the state’s requirements, “* * * the overriding objective must be substantial equality of population among the various districts, so that the vote of any citizen is approximately equal in weight to that of any other citizen in the State.” 377 U.S. at 579, 84 S.Ct. at 1390.

In Preisler v. Doherty, 284 S.W.2d 427[7, 8] (Mo. banc 1955) the court said, page 435: “Certainly the framers of the Constitution did not intend for senatorial districts to be laid out according to the free will and caprice of the officers charged with that duty. The requirements of contiguity and compactness were placed there for a purpose. Our original Constitution of 1820 did not contain them. See Sec. 6, Art. Ill, Const. 1820,1 V.A.M.S. p. 79. No doubt they were found to be necessary to the preservation of true representative government and they appear in the 1875 Constitution in substantially the same form as in the present Constitution. See Secs. 5, 6 and 9, Art. IV, Const.1875, 1 V.A.M.S. pp. 177-179. It has been stated that the purpose of these requirements was ‘ “to guard, as far as practicable, under the system of representation adopted, against a legislative evil, commonly known as the ‘gerrymander,’ and to require the Legislature to form districts, not only of contiguous, but of compact or closely united, territory.” ’ State ex rel. Barrett v. Hitchcock, supra, 241 Mo. loc. cit. 497, 146 S.W. loc. cit. 61; See also 2 A.L.R. 1337.”

Preisler v. Hearnes, supra, the last word of this court on the “compactness” issue, involved an attack upon the validity of a 1961 legislative act redistricting Missouri’s ten congressional districts. Quoting from Preisler v. Doherty, supra, the court said: “It is well settled that courts have jurisdiction and authority to pass upon the validity of legislative acts apportioning the state into senatorial or other election districts and to declare them invalid for failure to observe non-discretionary limitations imposed by the Constitution. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, loc. cit. 473, 146 S.W. 40, loc. cit. 53 and cases cited; Annotation A.L.R. 1337; 18 Am.Jur. 191-201, Secs. 16-31; 16 C.J.S. Constitutional Law § 147, p. 438. See also Jones v. Freeman, 193 Okl. 554, 146 P.2d 564, loc. cit. 570, stating that the courts of 38 states had exercised this power. However, as these authorities show, the courts may not interfere with the wide discretion which the Legislature has in making apportionments for establishing such districts when legislative discretion has been exercised. It is only when constitutional limitations placed upon the discretion of the Legislature have been wholly ignored and completely disregarded in creating districts that courts will declare them to be void. In such a case, discretion has not been exercised and the action is an arbitrary exercise of power without any reasonable or constitutional basis. As said in a leading ease, State ex rel. Lamb v. Cunningham, 83 Wis. 90, 53 N.W. 35, 55, 17 L.R.A. 145: ‘If, as in this case, there is such a wide and bold departure from this constitutional rule that it cannot possibly be justified by the exercise of any judgment or discretion, and that evinces an intention on the part of the legislature to utterly ignore and disregard the rule of the constitution in order to promote some other object than a constitutional apportionment, then the conclusion is inevitable that the legislature did not use any judgment or discretion whatever.’ ” 362 S.W.2d at 555.

To this the court added, however, that “ * * * it is only when constitutional limitations are completely disregarded, resulting in an arbitrary exercise of power that cannot be justified by exercise of judgment or discretion but obviously done to promote some other object than constitutional apportionment, that the courts will declare the Act unconstitutional.” 362 S.W.2d at 557.

In that case the court approved a reapportionment plan in which the compactness of at least three districts of the ten could have been improved by the adjustment of counties between districts and where one of those three districts was said to be not “reasonably” compact. Despite the fact that adding two counties to thát district would have aided its compactness (as well as equality of population), the court found that the body charged with redistricting did not ignore or disregard the constitutional requirements but instead had exercised its discretion and judgment to establish districts, a substantial number of which were reasonably compact.

Plaintiffs contend and defendant concedes that district 6, in the city of St. Louis, does not meet the compactness requirement. We agree. Plaintiffs contend also that none of the remaining thirty-three districts meet the compactness requirement of the state constitution, and in connection with some they proceed to demonstrate how easily, they think, those districts could be improved upon and made more compact. We agree that the changes they suggest would make some of those districts more compact, but that is not to say we would agree that the districts as established, the overall apportionment of the state into senatorial districts by the Commission, does not substantially meet the compactness requirement of the constitution.

It must be recognized that there will be some degree of unavoidable noncompactness in any apportionment of this state into 34 senatorial districts. The county lines do not lend themselves to perfect compactness. The population density of the state is, of course, uneven and any effort to accomplish both the overriding objective of substantial equality of population and the preservation of county lines reasonably may be expected to result in the establishment of districts that are not esthetically pleasing models of geometric compactness. It is also true that the population density is uneven in the two metropolitan areas and a good faith effort to adhere to all constitutional requirements will still produce some districts in those areas, the boundary lines of which will have stair-step shape as well as the straight lines of urban blocks and suburban and urban census districts, and the sweeping curves of major thoroughfares. It has been said that only a district having the shape of a square or a circle can be so compact that it cannot be made more so. State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40, 62 (1912).

We would remind the parties (and ourselves) that whatever the body charged with the responsibility of reapportionment of the state into districts (whether it be the Legislature or a Commission) it is made up of fallible human beings; that no matter how compact in shape or equal in population the districts they establish may be, none will be so perfect that there will not be room for improvement; that there will always be those with knowledge of and interest in the subject, who, unhampered by the experience of having had to work closely with the overall plan and with shaping and fitting into that plan each individual district thereof, can improve upon what has been done.

We find, and hold, that the Commission made an honest and good faith effort to construct senatorial districts as compact as may be; that all districts, except the sixth in St. Louis, and the 33rd because it thrusts a narrow appendage from the middle of its body into the heart of Greene county, are within acceptable limits of compactness. We also find, and hold, that considering the overall, state-wide plan developed by the Commission the districts established substantially comply with the compactness requirement of § 5 of Article III. Accordingly, the judgment of the trial court must be reversed.

Plaintiffs assert in their cross-appeal that the trial court should have retained jurisdiction of the case (1) to expedite the implementation of any final judgment ordering reapportionment; and (2) to fix and allow attorneys’ fees. Plaintiffs state in their argument: “The question of costs and attorney fees is an issue in this case only if the judgment of the trial court is sustained on the merits.” Since the judgment on the main issue is reversed, the question of retention of jurisdiction for the purposes mentioned is moot.

The judgment for plaintiffs for declaratory and injunctive relief is reversed. The judgment against plaintiffs on their prayer for costs and attorneys’ fees is affirmed. The cause is remanded with directions that the court enter judgment consistent with this opinion, and that it set aside its decree enjoining defendant from taking any action with respect to elections for the state senate.

MORGAN, HOLMAN, BARDGETT and DONNELLY, JJ., concur.

FINCH, J., dissents in separate dissenting opinion filed.

SEILER, C. J., dissents and concurs in separate dissenting opinion of FINCH, J.

APPENDIX 1

APPENDIX 2

VARIATION DISTRICT POPULATION

.90% 1 138,812 +

.34% 2 138,038 +

.98% 3 138,917 +

.34% 4 138,042 +

.00% 5 137,575

.19% 6 137,309

1.8 % 7 139,987

4.8 % 8 131,001

4.7 % 9 131,045

4.9 % 10 130,761

4.8 % 11 130,932

4.3 % 12 143,514 +

1.2 % 13 139,183 +

1.6 % 14 139,838 +

1.7 % 15 139,957 +

4.9 % 16 130,819

1.1 % 17 136,106

.76% 18 138,609 +

1.7 % 19 139,856 +

3.8 % 20 142.834 +

.04% 21 137,625 +

2.6 % 22 141,149 +

.44% 23 136,959

1.4 % 24 139.441 +

3.8 % 25 142.835 +

1.4 % 26 139,444 +

.85% 27 136,400

.77% 28 138,636 +

1.1 % 29 139,080 +

2.3 % 30 134.442

2.4 % 31 134,271

.17% 32 137,338

33 142,283 co

34 134,361 co OJ

APPENDIX 3

APPENDIX 6

PINCH, Judge

(dissenting).

I respectfully dissent. The principal opinion concludes that Districts 6 and 33 are not compact as required by the Constitution but holds that since in its view the remaining districts are within acceptable limits of compactness, the plan as a whole complies with the compactness requirement established by Art. Ill, § 5, Mo.Const.

I cannot agree with that conclusion. In my view when Art. Ill, .§ 5 says that in establishing the prescribed 34 senatorial districts, “the state shall be divided into convenient districts of contiguous territory, as compact and nearly equal in population as may be,” (emphasis supplied) it applies all three of these standards to all of the 34 districts, not just to some or most of them. For example, suppose that 33 of the districts consisted of contiguous territory but one district was made up of two segments separated by an intervening district. Can there by any doubt but that the establishment of that one non-contiguous district would constitute a violation of Art. Ill, § 5 and make the plan bad? Would we paraphrase what the principal opinion says with reference to the compactness requirement and say that the commission made a good faith effort to make districts contiguous and actually made all but one contiguous districts, and, therefore, the plan complies with that requirement of Art. Ill, § 5? I think not.

Or suppose that 33 of the districts were approximately equal in size but that the 34th district had only one-third or one-half as many people as the other 33 districts. Isn’t it clear that such a district could not be permitted to stand and that its existence would make the plan bad and require redistricting?

If the above assumptions are correct, and I believe they are, then the mandate of Art. Ill, § 5 also means that the plan must contain districts, none of which are in clear violation of the compactness requirement. There is not one word in Art. Ill, § 5 which indicates to the contrary. This does not mean that the Constitution requires perfect compactness any more than it requires exact equality of population because by the nature of things, some stair-step shapes and irregular lines will be inevitable. For example, county lines do not lend themselves to perfect compactness. It also must be subject to the fact that the courts have held that the requirement of equality in population takes precedence, and that, to the extent necessary, whatever irregularity is required to achieve population balance is permissible. There also may be some irregularity as the result of physical factors of areas involved or because of historical factors. However, subject to those qualifications, Art. Ill, § 5, in my judgment, applies to all districts and requires all of them to be as compact as may be.

Does the plan in question meet that standard? Clearly not. District 6 in the City of St. Louis runs from the northern city limit to within a few miles of the southern city limit. For two-thirds of its length, it hugs the Mississippi River. It then turns west after which it continues south on a path several miles from the river. It is 19.8 miles long and narrows at one point to only 0.4 miles in width. In appearance it resembles a mountainous “S” curve, a corkscrew or a twisted shoestring. The principal opinion holds that District 6 does not meet the compactness requirement of Art. Ill, § 5. With reference to this district, appellant’s brief states: “We will not attempt to defend District 6. It would be absurd to claim that this district meets anybody’s standard of compactness.” What more need be or can be said? Nor is any reason or excuse therefor shown. As the principal opinion points out, “[T]he parties agree that the shapes of the districts are not the result of physical features of the areas involved and appear to agree that there is no evidence that any historical factors were considered.” This being true, how can a plan be permitted to stand when it contains a district like No. 6 which so patently and admittedly violates Art. Ill, § 5?

But that isn’t all. The principal opinion holds that District 38 also violates the compactness requirement of Art. Ill, § 5. Furthermore, there are other districts, attacked by respondents, which I find not “as compact * * * as may be.” By this I do not mean districts which could just be improved so as to be more nearly compact. I have reference to districts which are not compact within the meaning of Art. Ill, § 5. For example, District l, which is located partially in the City of St. Louis and partially in St. Louis County, is 18.6 miles long and at its narrowest point is only 0.8 miles wide. Its shape defies description. In my judgment, it, like District 6, would not meet anybody’s standard of compactness. Its existence furnishes an additional reason for holding, as did the trial court, that the existing plan violates the compactness requirement of Art. Ill, § 5.

Respondents also attack the compactness of at least 9 other districts. I will not lengthen this dissent by discussing or even referring to all of them, but it is clear that Districts 9 and 10 in Jackson County, District 12 which extends across the northern portion of the state, District 34 in the northwest section of the state, and District 29 which extends along much of the southern border are not reasonably compact.

Appellants have offered no evidence to justify the lack of compactness in any of these districts, nor to demonstrate any reason why the commission could not have complied with the requirements of Art. Ill, § 5. In my view, that burden rested on them when, as here, lack of compactness in fact exists and it is recognized that this was not brought about as the result of physical features or historical consideration and there is nothing to show it was to achieve equality in population.

In the opening paragraph of the argument section of appellant’s brief herein appears this sentence: “It is hoped that the resulting decision will serve as a guide to future redistricting commissions.” The principal opinion does just that. It says to them that absent an affirmative showing of bad faith or improper motive by the commission, their plan will be approved, insofar as the compactness requirement of Art. Ill, § 5, is concerned, if most of the districts are reasonably compact and that this will be true even if one or more of the districts look like an elongated “S” or a twisted shoestring and are so lacking in compactness that they do not meet “anybody’s standard of compactness.”

I cannot concur in such a message. If a plan containing Districts 6, 1 and 33 (even forgetting the others) can be permitted to stand, then as a New York court said in the case of In re Livingston, 96 Misc. 341, 160 N.Y.S. 462, 470 (1916), in holding bad a legislative districting plan in the City of New York, “* * * If the apportionment of a district of this shape can be upheld, when no other constitutional provision makes its shape necessary, then the provision as to compactness serves no purpose. * * * >>

The position I espouse is, in my judgment, consistent with the earlier opinions by this court involving the issue of compactness of legislative districts. The first of those cases was State ex rel. Barrett v. Hitchcock, 241 Mo. 433, 146 S.W. 40 (banc 1912). It was an original proceeding in mandamus to require the circuit judges of the City of St. Louis to redistrict the city into six state senatorial districts. Under the law at that time, the general assembly was to establish senatorial districts, but if it was unable to agree, the duty passed to the governor, the attorney general and the secretary of state. Art. IV, § 7, Mo.Const. 1875. The suit in question sought to put into effect a plan agreed to by two of these officers over the dissent of the governor. This court denied the writ of mandamus for various reasons, one of which was the lack of compactness of some of the districts established by the plan. Maps of those districts are set out in the opinion. 146 S.W. at 55. Comparison thereof with Districts 6 and 1 and even 33 show that the latter are less compact and much less acceptable in shape than those disapproved in Hitchcock. Yet the court in Hitchcock said, 146 S.W. at 65:

“We are also of the opinion that the act of apportionment, as before stated, violates the Constitution, in that it does not conform to the provision which requires compactness of counties. At another place, we have set out a map of several of them, which shows a total disregard of this constitutional provision.”

The next decision which considered the compactness requirement was Preisler v. Doherty, 284 S.W.2d 427 (Mo. banc 1955). It involved a declaratory judgment action seeking a determination of the validity of seven senatorial districts established in the City of St. Louis by the Board of Election Commissioners of that city. The court pointed out that this was districting by an administrative agency, not by the General Assembly, and that the Board of Election Commissioners had been delegated “very limited legislative power for a single purpose, namely: to divide the City into senatorial districts ‘of contiguous territory, as compact and nearly equal in population as may be.’ ” 284 S.W.2d at 432. The court held that the seven districts were not compact and that such deficiencies were not due to physical features of the area. After noting that the requirements as to contiguity and compactness were placed in the Constitution for a purpose, the court said, 284 S.W.2d at 435:

“* * * There is no discretion to violate mandatory provisions of the Constitution; certainly not by these administrative officers. We must hold that this 1952 redistricting violates the Constitution and is unconstitutional and invalid.”

Maps of two of the districts held bad are set out at the end of the opinion. They obviously are not compact but certainly they are not worse, if as bad, as Districts 6 and 1 in the present plan.

The third Missouri case which has considered the question of compactness was Preisler v. Hearnes, 362 S.W.2d 552 (Mo. banc 1962). It involved a declaratory judgment suit to determine the validity of the 1961 act which divided, the state into ten congressional districts. The districts were attacked on the basis of alleged lack of uniformity of population and compactness of territory. The court overruled both attacks and held the plan good. However, what the opinion says on the question of compactness is significant. Judge Hyde, who also had written the opinion in Preisler v. Doherty, supra, first pointed out that in Doherty the court dealt with redistricting by an administrative agency whereas here the redistricting was by the legislature which had somewhat more discretion. He then wrote, 362 S.W.2d at 557:

“All of the districts established by the 1961 Act are reasonably compact except the Tenth, although the Eighth, Ninth as well as Tenth could have been improved in that respect by adjustments of counties between the Eighth and Ninth (and also either the Fourth or Sixth) on the north and between the Eighth and Tenth on the south and east. However, there are no shoe string districts such as some in Missouri forty years ago, when there were 16 districts, before Sec. 45, Art. Ill, was added to our Constitution.” (Emphasis added.)

Subsequent language in the opinion with reference to the Tenth District discloses it was not at all comparable to Districts 6 and 1 of the present plan. It was a district which could have been improved and made more compact, but was not of such a nature that “It would be absurd to claim that this district meets anybody’s standard of compactness.” The court did not find that the Tenth District was so lacking in compactness that it violated the constitutional provision, but its language infers the result would have been otherwise if the plan had contained shoestring districts. The opinion in Preisler v. Hearnes does not require or indicate that the plan now before us should be sustained. Here we deal with districts comparable to those held bad in Doherty and districting by a commission as in that case, not by the legislature.

A holding that the present senatorial redistricting is unconstitutional and that the state should be redistricted does not present any serious timetable problems in regard to holding the 1976 elections. We could provide that if a new redistricting plan is completed and filed by some date such as March 1,1976, then the new plan would govern the 1976 elections and the Secretary of State would be directed to accept filings only on the basis of such new plan. If a new redistricting plan has not been completed and filed by March 1, 1976, the 1976 election would be held on the basis of presently existing districts and the Secretary of State would be directed to accept filings on and after March 1, 1976, on that basis. In such event, the new redistricting plan, when filed, would apply to and govern elections in 1978.

I would affirm the judgment of the circuit court. Accordingly, I dissent from the principal opinion.

      . The constitutionality of these districts was first challenged in Watkins et al v. Kirkpatrick, Secretary of State, No. 20148-1 in the United States District Court for the Western District of Missouri, Western Division, in which the instant plaintiffs intervened as parties plaintiff. The challenge in that case was that the districts as apportioned in 1971 violated (1) the Fourteenth Amendment “one man, one vote” requirement and were racially discriminatory; and (2) the requirement of the state constitution that they be “as compact * * * as may be.” The district court found against plaintiffs on the federal constitutional claims and exercised its discretion to not rule on the claim that the districts do not meet the state constitutional requirement of “compactness.” That judgment (dated December 17, 1973, but not reported) was not appealed from and is final.

      . Article III, § 5 reads: “The Senate shall consist of thirty-four members elected by the qualified voters of the respective districts for four years. For the election of senators, the state shall be divided into convenient districts of contiguous territory, as compact and nearly equal in population as may be.”

      .Section 7 of Article III reads, in part: “The commission shall reapportion the senatorial districts by dividing the population of the state by the number thirty-four and shall establish each district so that the population of that district shall, as nearly as possible, equal that figure; no county lines shall be crossed except when necessary to add sufficient population to a multi-district county or city to complete only one district which lies partly within such multi-district county or city so as to be as nearly equal as practicable in population. Any county with a population in excess of the quotient obtained by dividing the population of the state by the number thirty-four is hereby declared to be a multi-district county.”

      . It is undisputed that the districts established by the Commission meet the “contiguous territory” requirement. Clearly, no part of any district is physically separate from any other part. The federal district court has, as previously noted, decided against these plaintiffs the federal question of whether the districts meet the requirement of substantial equality of population. Apparently, plaintiffs are satisfied with that determination and for that reason did not raise any question as to the state requirement of “equal population” in this case.

      . This district is shown on Appendix 4 to the principal opinion.

      . This district is shown on Appendix 7 to the principal opinion.

      . This district is shown on Appendix 5 to the principal opinion.

      . These districts are shown on Appendix 6 to the principal opinion.

      . These districts are shown on Appendix 4 to the principal opinion.

      . It is well established that the burden of justifying deviations from parity in population is on the state. Swann v. Adams, 385 U.S. 440, 445, 446, 87 S.Ct. 569, 17 L.Ed.2d 501 (1967); Dinis v. Volpe, 264 F.Supp. 425, 430 (D.Mass.1967), affirmed 389 U.S. 570, 88 S.Ct. 696, 19 L.Ed.2d 785 (1967); Maryland Citizens Committee for Fair Congressional Redistricting, Inc. v. Tawes, 226 F.Supp. 80 (D.Md.1964). There is no reason why the rule should be different with respect to explaining and justifying a lack of compactness. The case of Noun v. Turner, 193 N.W.2d 784, 791 (Iowa 1972), holds that this burden is on the state.


author: HOLMAN, Judge.

text:
    STATE ex rel. GARRISON WAGNER COMPANY, Relator, v. Honorable George E. SCHAAF and Honorable Franklin Ferriss, Judges of the Circuit Court of St. Louis County, Missouri, Respondents.
    No. 59109.
    Supreme Court of Missouri, En Banc.
    Oct. 13, 1975.

      Smith, Hanke & Batts, St. Louis, for relator.
    Robert G. Brady, Michael B. McKinnis, David S. Slavkin, St. Louis, for respondents; Bryan, Cave, McPheeters & McRob-erts, St. Louis, of counsel.
   HOLMAN, Judge.

This is an original proceeding in prohibition. Upon application of relator, the Missouri Court of Appeals, St. Louis District, issued a preliminary writ in prohibition. As hereinafter more fully detailed the issue involved is one of venue under the third-party practice as provided for in Rule 52.-11(a), V.A.M.R. The question caused the court of appeals considerable difficulty (as it has this court) as indicated by the fact that it first adopted an opinion (with one judge dissenting) making the writ permanent and thereafter withdrew that opinion and adopted another which quashed the preliminary writ. Application to transfer pursuant to Art. V, Sec. 10, Mo.Const., V.A. M.S. was sustained and we decide the case here the same as an original proceeding filed in this court. In so doing, we utilize, without quotation marks, some portions of the opinion of the court of appeals.

On July 26, 1968, Novoson Investment Trust, Inc., hereinafter referred to as Novo-son, filed suit in the Circuit Court of St. Louis County against Emerson Electric Company. In its petition, Novoson alleged that Emerson Electric had breached the terms of its lease of the premises located at 2018 Washington Avenue in the City of St. Louis, Missouri, presently occupied by relator Garrison Wagner Company for which alleged breach of the terms of the lease Novoson sought damages.

Novoson acquired the building at 2018 Washington Avenue while Emerson Electric was obligated under the terms of a lease of the premises it had entered into with Harry C. Bohn, on July 26, 1943. The lease terms required Emerson Electric to maintain certain items of the buildings. While Emerson was subject to the above terms of the lease, it sublet the premises to relator Garrison Wagner Company on June 18, 1946, which sublease imposed the same or similar maintenance and repair obligations upon relator as were required of Emerson Electric. The lease and sublease both expired in July, 1963, and relator remained in the building as a tenant of Novoson.

On March 30, 1973, Emerson Electric Company filed a third-party petition seeking to join relator Garrison Wagner Company. This petition was duly served on Garrison Wagner at its office in the City of St. Louis. The basis for the third-party petition was an allegation that Garrison Wagner had entered into a sublease with Emerson Electric and now occupied the real estate in question. It was alleged that under the terms of the sublease Garrison Wagner must indemnify Emerson Electric in the event Emerson was found to be liable to Novoson for any failure to maintain the premises. Garrison Wagner appeared specially in the Circuit Court of St. Louis County and sought to quash the service and to dismiss the third-party petition for improper venue and for lack of jurisdiction. On January 4, 1974, the Honorable George E. Schaaf denied this motion. As heretofore indicated, this prohibition proceeding followed shortly thereafter.

Relator Garrison Wagner Company is a corporation organized and existing under the laws of the State of Missouri with its principal place of business in the City of St. Louis, Missouri. Emerson Electric Company is a Missouri corporation with its principal place of business in St. Louis County, Missouri.

As indicated, the issue for decision is whether the venue requirements have been met so that the Circuit Court of St. Louis County, in its discretion, may proceed to determine the issues presented in the third-party petition.

The third-party practice originated in this state as a part of the “Civil Code of Missouri” adopted in 1943. See Section 507 080. The provisions of that section have now been substantially incorporated into and su-perceded by Rule 52.11(a) which provides, in part, as follows: “At any time after commencement of the action a defending party, as a third-party plaintiff, may cause a summons and petition to be served upon a person not a party to the action who is or may be liable to him for all or part of the plaintiff’s claim against him. The third-party plaintiff need not obtain leave to make the service if he files the third-party petition not later than 10 days after he serves his original answer. Otherwise he must obtain leave on motion upon notice to all' parties to the action. . . . Any party may move to strike the third-party claim, or for its severance or separate trial.” It may be of interest to note that Rule 52.11(a) is the same as Federal Rule 14.

In deciding the question before us, we must also consider two venue statutes. Section 508.010 states, in part, that “Suits instituted by summons shall, except as otherwise provided by law, be brought:

“(1) When the defendant is a resident of the state, either in the county within which the defendant resides, or in the county within which the plaintiff resides, and the defendant may be found; ” Section 508.040 provides that “Suits against corporations shall be commenced either in the county where the cause of action accrued, . or in any county where such corporations shall have or usually keep an office or agent for the transaction of their usual and customary business.”

Relator contends that Section 508.010 fix-, es the venue for the claim in question. Alternatively, however, it asserts that even if Section 508.040 is held to be applicable venue would be in St. Louis City because that is where the cause of action, if any, accrued.

Respondents say that Section 508.040 is applicable and that venue thereunder would be in St. Louis County because the cause of action (indemnity) would accrue in that county at the time Emerson is held liable to Novoson. Alternatively, they contend that in accord with the objectives of the third-party practice this court should adopt the rule that where the third-party claim grows out of the same matter as the principal action it should be considered as ancillary thereto and the venue in the principal action would fix the venue for the third-party claim.

There are two cases in which this court has dealt rather extensively with the foregoing venue statutes. In State ex rel. Baker v. Goodman, 364 Mo. 1202, 274 S.W.2d 293 (1955) the suit (in the underlying case) was filed in Stoddard County by resident plaintiffs against two corporations, neither of which resided in or kept an office or agent in that county. Therein, we considered the provisions of the two venue statutes and concluded that: “In a case where individuals and corporations are sued jointly it is necessary to construe the two sections together for neither expressly fixes the venue in such case, and it is only Section 508.010 that does so by implication. But in the case of two corporations being sued, a different situation exists. When we look to the statutes for the proper venue in such a case we find Section 508.040 designed to cover venue in suits against corporations, which statute can be construed to cover the situation. We believe that such construction should be put on said statute, and that the proper venue in the case at bar is in Stoddard County, where the cause of action, as alleged, accrued.” 274 S.W.2d 297.

In State ex rel. Carney v. Higgins, 352 S.W.2d 35 (Mo.1961) the plaintiffs in the case involved had filed suit in Clay County, their residence, against a Jackson County corporation to recover damages done to a house located in Clay County upon which the defendant had done construction work for them. In that posture the venue was clearly in Clay County where the claim accrued. Defendant, however, filed a third-party petition against an individual subcontractor who resided in and was served in Jackson County. The third-party defendant contended that the venue of the claim against him was not in Clay County. The court pointed out that there was no statute or rule which fixed the venue for third-party claims and held that the venue of the third-party action was not in Clay County. The court adopted the view that the third-party indemnity claimant had to show compliance with venue requirements separate from the original action; that to hold otherwise would be legislating an exception to Section 508.010 and the court expressed the fear that such a holding might lead to serious abuses of process.

In deciding this case we will assume that the cause of action in question accrued or will accrue in St. Louis City and hence under the provisions of Section 508.040 and the ruling in Higgins the venue of the third-party claim would not be in St. Louis County. However, in the years that have passed since Higgins was decided there has been a vast increase in litigation and many courts have become more forcibly aware of the value of the third-party practice in contributing to a reduction of the case load. It is in the light of that situation that we have decided that the Higgins decision should be reconsidered.

We note at the outset of our consideration of this question that the weight of authority in other jurisdictions follow the rule that if the third-party claim grows out of the same transaction or occurrence as the original action the third-party claim may rest its venue upon the venue of the main action. In that connection, it is stated in 77 Am.Jur.2d, Sec. 28, p. 868 that: “In the absence of a statute specifically dealing with the venue of a cross action against a codefendant or a third-party defendant, it has been held that where the subject matter of the cross action is the same as that of the main action between the plaintiff and the defendant, . . . the venue of the cross action may properly be laid in the same county as that of the main suit, . ” We are also told that “In most of the federal cases wherein the question was considered, the view has been taken that a third-party proceeding growing out of the same subject matter involved in the principal action and involving many of the same facts is ancillary to the principal action and its venue rests upon that of the principal action, it not being necessary that the venue requirements of an independent action be met.” Anno. 100 A.L.R.2d, p. 708. The court in Goodwin Brothers v. Preferred Risk Mut. Ins. Co., 410 S.W.2d 714, 716 (Ky.1967) stated: “Mindful of the congestion of court dockets and the desirability of minimizing the multiplicity of suits, we conclude that under CR 14.01 a third party may be joined ‘who is or may be liable to’ a defendant ‘for all or part of’ the plaintiff’s ‘claim against’ the defendant, regardless of whether the provisions of [the venue statute] are met as to the third party.”

At the time the 1943 Civil Code was adopted it was stated in Section 506.010 that “it shall be construed to secure the just, speedy, and inexpensive determination of every action.” In an early case construing the third-party statute the court stated that “We reaffirm our adherence to the principle that procedural statutes deserve liberal construction. We are mindful that this Code was the result of an effort on the part of the bar and the legislature, so far as it could be accomplished and the rights of litigants safeguarded, to streamline procedure, abandon the technical and the useless and provide judicial processes which would facilitate the disposition of litigation upon its merits.” State ex rel. McClure v. Dinwiddie, 358 Mo. 15, 213 S.W.2d 127, 130 (1948).

We approve the statement that “The purpose of third party practice is to avoid two actions which should be tried together to save the time and cost of a reduplication of evidence to obtain consistent results from identical or similar evidence and to accomplish ultimate justice for all concerned with economy of litigation and without prejudice to the rights of another.” State ex rel. Laclede Gas Company v. Godfrey, 468 S.W.2d 693, 698 (Mo.App.1971).

When we consider that procedural statutes are to be liberally construed and that the obvious purpose of the third-party practice is to reduce the number of cases filed and to provide a more prompt, efficient and economical method for disposing of litigation we cannot conclude that the legislature intended to require that third-party claims independently comply with venue requirements. We recognize that in some eases it may not be expedient or efficient to proceed with a third-party petition. And in other cases great inconvenience might be caused to the third-party defendant. But those situations may be avoided by the discretionary power vested in the judge. In that connection we recently stated that “The right to implead is not an absolute right even if the claim asserted is within the scope of Rule 52.11, but is a matter that is discretionary with the court. . If the above purposes [economy of litigation without prejudice to the rights of another] would not be served by the adjudication of the third-party claim, it is proper for the trial judge to exercise discretion and dismiss the third-party petition.” State ex rel. Green v. Kimberlin, 517 S.W.2d 124, 126 (Mo.1974). See also United States v. Acord, 209 F.2d 709[7] (10th Cir. 1954) and Globig v. Greene & Gust Co., 184 F.Supp. 530[8, 9] (D.C.1960). There is no contention in this case that relator would be substantially inconvenienced by trying this claim in St. Louis County.

We accordingly hold that in third-party practice it need not be shown that venue requirements have been independently complied with but that such may rest on venue properly shown in the original ease; that the court, therefore, in its discretion, may permit the filing of a third-party petition or deny a motion to dismiss such a petition even though, if it were a separate action, the venue requirement would not be present.

To the extent that this ruling may be considered contrary to the holding in State ex rel. Carney v. Higgins, supra, said case should no longer be followed.

It follows from the foregoing that the preliminary writ heretofore issued by the court of appeals should be quashed. It is so ordered.

All concur.

      . All statutory references are to RSMo 1969, .V.A.M.S.