Volume 108 — Texas Reports

<p>1. —School Land—Forfeiture—Affidavit of Settlement—-Harmless Error.</p> <p>Though a purchaser of school land had thirty days after ninety days from the date of purchase within which to file his affidavit that he had made settlement on the land as required, and it was error to charge that he must do so within thirty days from date of settlement, such error was not ground for reversal where his rights had been declared forfeited for failure to maintain residence on the land and such forfeiture was shown to be proper under the undisputed evidence. (Pp. 3, 4.)</p> <p>2. —School Land—Residence—Abandonment.</p> <p>Mere absence of the purchaser of school land as an actual settler, for eight or nine months, from the premises, did not as matter of law afford ground for forfeiture because of his abandonment of residence thereon; but such absence and his employment elsewhere must not be inconsistent with his obligation to remain, in fact and in good faith, a settler on the land. A mere intention to return and occupy the land is not equivalent to such continued residence. Facts here considered are held to show an abandonment. (Pp. 3, 4.)</p> <p>3. —Same—Case Stated.</p> <p>A purchaser of school land as an actual settler thereon was absent therefrom eight and a half or nine months of the first nine and a half months after settlement on it. During this time he engaged elsewhere in business as a land agent and as clerk and manager of a business for another'. Held, that this constituted an abandonment of his residence, and that his purchase was properly forfeited by the Land Commissioner therefor. (Pp. 2, 5.)</p>

<p>1. —Constitutional Law—Primary Election.</p> <p>That the law providing for a primary election for presidential -candidates-is impracticable, unworkable if literally observed, and deficient because of the omission to provide for the nomination of the legal number of presidential electors, would not affect the constitutional power of the Legislature to pass the law., (P. 9.)</p> <p>2. —Constitutional Law-—Classification.</p> <p>The classification of parties by the primary election law into those casting as many -as 50,000 votes for governor at the last general election, which were-required to hold such primaries, and those casting less, with which it- was optional, the expenses -of holding presidential primaries being paid by public taxation only for the class first named, was within the power of the Legislature,, and did not -render the law unconstitutional though only one party, the Democratic, came within the first named class. (P. 9.)</p> <p>3. -—Same—Taxation—Public Purpose.</p> <p>The funds possessed by counties and available for meeting the expenses of holding a primary election, as required by law, being derived from taxation, can be expended only for public purposes. Const., art. 8, sec. 3; art. 3, sec. 52. (Pp. 9, 10.)</p> <p>4. —Same.</p> <p>Objects may -be public in the general sense that that their attainment will confer a public benefit or promote the public convenience, but not public in the sense that the taxing power -of the State may be used to accomplish them. The-powers of the State as a sovereignty exist only for governmental purposes, and may be freely exerted in discharge of all its governmental functions, but can not be applied to uses, though public in aim and result, which are not governmental in their nature. (P. 10.)</p> <p>5. -;—Same</p> <p>The test of what is a public purpose within the meaning of article 8, section 3 -of the Constitution, can be presented by the inquiry: Is the thing to- be-</p> <p>furthered by the appropriation of the public revenue something which it is the-duty of the State, as a government, to provide? (P. 11.)</p> <p>6. —Same—Elections. .</p> <p>General elections are distinctly related to the discharge of an important public duty; but political parties are merely associations of men for maintaining-certain political principles or beliefs in the public policies of the government. They perform no governmental function and constitute no- governmental agency. Their primary elections are merely to furnish their nominees as candidates for suffrage. The State may regulate such elections by proper laws in the interest of fair methods, but the payment of the expenses thereof can not be differentiated from any other expense for carrying out a party object. (Pp. 11, 12.)</p> <p>7.—Same.</p> <p>Promotion of the purposes of political parties lean no more be made an object of public bounty than those of other organizations into which groups of citizens may form themselves,—even less properly in such case, since the object of the organization is the political control of the government. (Pp. 12, 13.)</p> <p>8.—Same.</p> <p>The primary election law, in so far as it provides for payment from public funds of the several counties of the expenses of 'holding Democratic presidential primaries is unconstitutional and unenforceable. (P. 13.)</p>

<p>1. —Governor—Compensation—Appropriations—Constitutional Law.</p> <p>Injunction having been granted forbidding tile Comptroller to issue (against a deficiency declared by the Governor in an appropriation for water, fuel, lights, etc., for the Governor’s mansion) warrants for the payment of claims for groceries, provisions, fruits, fuel, etc., and such judgment having been affirmed, writ of error is refused thereon without written opinion for the court.</p> <p>2. —Same—Concurring Opinion.</p> <p>Mr. Justice Hawkins, concurring, holds:</p> <p>1. A taxpaying citizen may maintain suit to restrain a State officer from unconstitutional acts calling for the illegal disbursement of State funds.</p> <p>2. The officer, in so doing, is not acting for the State, and the suit to restrain him is not one against the State.</p> <p>3. The District Court had jurisdiction to grant such injunction.</p> <p>4. The recognition by the Legislature of such claims as valid is not binding on the ¡courts and will not deter them from holding such appropriation unconstitutional and void.</p> <p>5. The Constitution of Texas does not permit the Legislature to appropriate money from the State treasury for the purchase of such articles for. the Governor in addition to the compensation allowed ¡him—“an annual salary of $4000.00 and no more.” Const., sec. 5, art. 4; sec. 6, art. 16; see. 50, art. 3.</p> <p>6. Such items of expense do not come within the exceptions of sec, 49, art. 3. of the Constitution, (a) The “existing debt” for payment of which that section permitted debt to be created on behalf of the State meant such as existed when the Constitution was adopted. (b) They were not existing debts because repugnant to sec. 5, art. 4 of the Constitution, limiting the Governor's compensation, and to sec. 1, art. 2, sec. 1, art. 3, and other constitutional provisions rendering ineffective the attempted creation of such debt by the Governor under art. 4342, Revised Statutes.</p> <p>7. The expression "etc.” is not sufficiently specific of the purpose of an appropriation within the meaning of sec. 6, art. 8, of the Constitution; nor did an appropriation for the "Governor’s Mansion” authorize a deficiency appropriation for groceries, etc., for the Governor’s use, this not 'being an expenditure for the “mansion.”</p> <p>8. Custom, usage, and executive and legislative approval can not justify palpable violations of constitutional restrictions.</p> <p>9. No supposed equity in a claim justifies its recognition in defiance of a plain provision of the Constitution.</p> <p>10. The creation of a deficiency allowance could only he based on the exhaustion of an appropriation already made by the Legislature; and the appropriation for “groceries, fuel, etc.” on which this deficiency was sought to be based was not valid, because each of the purposes for which it was made was unlawful under sec. 5, art. 4, of the Constitution.</p> <p>11. Article 4342, Revised Statutes, is invalid as violative of see. 6, art. 8, of .the Constitution forbidding money to be drawn from the Treasury except in pursuance of specific appropriation made by law, since it attempts to confer on the Governor broad power to create debts against; the State, which it must then pay or repudiate. (Pp. 16-39.)</p> <p>ON MOTION FOR REHEARING. *</p> <p>3. —Same—Dissenting Opinion.</p> <p>Mr. Justice Yantis, dissenting from an order of the Court overruling a. motion for rehearing, is of opinion that:</p> <p>1. Sec. 5, art. 4, of the Constitution limits the Governor’s salary of $4000.00, but does not forbid the allowance of perquisites in addition by the Legislature; nor does the provision giving him the use of the “mansion, fixtures and furniture” exclude the power to allow additional perquisites of the office.</p> <p>2. Sec. 48, art. 5, of the Constitution, by authorizing the Legislature to-levy taxes “to raise revenue sufficient for the economical administration of the government,” and to provide for the payment of “all officers, agents and employes of the State government and all incidental expenses connected therewith,”' directly authorizes such appropriations as the Legislature, in its discretion, considers necessary for those purposes.</p> <p>3. Courts have no power to inquire into- or revise the action of the Legislature in a matter entrusted to its discretion. The action of the Legislature determines, as matter of fact, that the items appropriated were incidental expenses of the Governor, or connected with the State government.</p> <p>4. Courts can not inquire into the purpose, design, or motive of the Legislature, nor pronounce the appropriation unlawful, because deemed to have been made with the purpose of increasing the Governor’s salary beyond the constitutional limit.</p> <p>5. The action of previous Legislatures in making similar appropriations is -a legislative construction of sec. 5, art. 4, which should he followed when the question is doubtful. (Pp. 39-49.)</p> <p>4. —Same—Concurring Opinion.</p> <p>Mr. Justice Hawkins, concurring with the Chief Justice in overruling the motion -for rehearing, is of opinion that:</p> <p>See. 48, art. 3, of the Constitution, being general and relating primarily to-raising revenues, is subject to the specific limitations placed on the Governor’s compensation by see. 5, art. 4, and sec. 44, art. 3. Also that none of the appropriations here in question- fall under sec. 48, art. 3, none being incidental to the Governor’s official duties. (Pp. 49-51.)</p>

Efro-r to the Court of Civil Appeals for the Eifth District, in an appeal from Hill Countjr.. Carpenter sued the railway company and appealed from a judgment for defendant, on affirmance of which he obtained writ of error.

<p>1.—Unlawful Contract—Restraint of Trade—Fixing Prices—Anti-trust Act.</p> <p>A contract between a merchant in New York (a fashion company) and one in Texas, whereby the former sells and delivers merchandise (patterns) to the latter, who, by the agreement, is not to sell them “for other than catalogue retail prices,” and not to “sell any other patterns . . . during the term of this contract,” was unlawful, being violative of the Texas Anti-Trust Act (Act of March 31, 1903, Laws, 28th Leg., ch. 94, p. 119), in that it fixes the price of sale in Texas, and prohibits the selling of other patterns by the purchaser. (P. 59.)</p> <p>'Z.—Same—Interstate Commerce.</p> <p>The Texas Anti-Trust Law (Act of March 31, 1903) was not intended to affect transactions constituting interstate commerce, these being beyond the power of its Legislature to regulate. But a contract between a New York and •a Texas merchant for the sale and delivery of goods to the latter, though so far interstate commerce, so far as it regulates the price to be charged by the latter for sale at retail in Texas after delivery of the goods there, and prohibits the dealer from buying from others, is not interstate commerce. Such contract ia forbidden by the Texas statute and can not he the basis of a recovery. (Pp. 59, 60.)</p> <p>3.—Same.</p> <p>The fact that a contract is in part a transaction constituting interstate commerce does not deprive the State of .the power to regulate it so far as_ it deals with commerce solely within the State, such as the sale of such article of commerce by the Texas purchaser after it has been sold and delivered to. him. Such contract if unlawful dn its restrictions on such dealings in Texas is not enforceable. (Pp. 59, 60.)</p>

<p>Negligence—Master and Servant—Res Ipsa Loquitur.</p> <p>Refusing a writ of error on the ground that the circumstances of the particular accident here involved furnish, in themselves, proof of negligence, the Supreme Court dissents from the opinion of the Court of Civil Appeals herein (175 S. W., 796) that the doctrine of res ipsa loquitur applies, as a rule, in cases of injury sustained by a servant in the service of a master. McCray v. Galveston, H. & S. A. Ry. Co., 89 Texas, 168, followed.</p>

<p>1, —Homestead—Abandonment—Insane Wife.</p> <p>The husband, acting in good faith, had the right to abandon .the homestead and acquire another, though the wife was insane; her consent, though sane, was not necessary to enable him to do so. (P. 64.)</p> <p>2. —Community Property—Sale by Husband—Insane Wife.</p> <p>The husband may sell community real estate to pay community debts though the wife is insane (Shields v. Aultman, Miller & Co., 20 Texas Civ. App., 345), and this without making bond under article 3594, Rev. Stats., to acquire the right to dispose of it. The statute in such case, as in that of her death, was passed to enlarge his power of disposition, not to restrict the power to sell for payment of debts which he already possessed. (Ashe v. Yungst, 65 Texas, 631; Sanger Bros. v. Heirs of Moody, 60 Texas, 96; Fagan v. McWhirter, 71 Texas, 567; Martin v. McAllister, 94 Texas, 567.) (Pp. 65-67.)</p>

Angela La Londe, as widow and temporary executrix of deceased, sued the El Paso & Southwestern Company in the District Court of El Paso County, Texas, for injuries resulting from death by defendant’s negligence in New Mexico. Defendant appealed from a judgment of recovery in plaintiff’s favor, which was affirmed (El Paso & S. W. Co. v. La Londe, ] 73 S. W., 890). Application for writ of error by appellant was refused, per curiam, without written opinion, on February 23, 1916.

Mrs. Herring sued tire Western Union Telegraph Company and recovered judgment. This was reversed and rendered for defendant on its appeal (146 S. W., 699) and plaintiff obtained writ of error.

Beaty sued the Missouri, Kansas & Texas and the Cotton Belt railways for injuries received while a passenger on the train of the former, • A peremptory instruction in favor of defendants was given on the trial. Beaty appealed, and on affirmance (175 S. W., 450) applied for writ of error. The writ was refused per curiam, without written opinion, on April 5, 1916.

Questions certified from the Court óf Civil Appeals for the Third District in an appeal from McLennan County. Having reversed and remanded, on plaintiff’s appeal, a judgment of the trial court dismissing his suit (178 S. W., 956) the court, on motion for rehearing, certify to the Supreme Court the constitutional questions here determined.

Brannin and another sued Richardson and others and, recovering less than claimed, appealed, and on affirmance obtained writ of error.

<p>1. —City—Indebtedness—Bonds—Refunding Invalid Debt.</p> <p>The power of a city to issue refunding bonds can be exercised only where the original debt was valid. If It was partly invalid, it may be refunded only to the extent that it was valid. (P. 120.)</p> <p>2. —Same—Refunding Bonds Partly Invalid.</p> <p>If bonds of a partly invalid issue are shown to have been issued at different times, those first delivered, up to the amount of the debt that could have been lawfully created, should be paid, and the remainder treated as nullities; and the bonds representing the valid part of the debt could be refunded. But if all of the 'bonds of the partly invalid issue were delivered at the same time, none of them could have any right of priority over the others, and the amount of the valid debt should be distributed equally between them (Citizens Bank v. City of Terrell, 78 Texas, 460.) (Pp. 120, 121.)</p> <p>S.—Same—Case Stated.</p> <p>A city issued bonds to the amount of $75,000.00, all sold and delivered at the same time. The issue was void to the extent of $39,000.00, being that much in excess of the amount for which the city could, at that time, have lawfully issued its bonds!., (Const., .art. 8, sec. 9.) The city paid off and retired a part of the bonds so issued, and sought mandamus to require the Attorney General to approve an issue of refunding bonds in the amount of $31,000.00, to retire the remainder of the bonds left unpaid. Held, that these unpaid bonds were each invalid to the extent of its proportionate excess above the amount for which the debt could be lawfully created, each partaking alike of its validity and invalidity. They could not be refunded in full, and mandamus is refused. (Pp. 120, 121.)</p>

Wilson sued Freeman, receiver of the International & Great Northern Railroad Company, and recovered judgment. He obtained writ of error on its reversal on appeal by defendant.

<p>1. —negligence—Degree of Care—Charge.</p> <p>The degree of care due from a railway company to a child permitted to he on hoard one of its locomotive engines at a station by the hostler then in charge of it, was that of an ordinarily prudent person under like circumstances. It was error in such ease to charge that the law required those in .charge of dangerous machinery to use “great care and prudence” in operating same to avoid injury to others. (Pp. 129, 130.)</p> <p>2. —Same—Case Stated.</p> <p>A child of eight years was permitted by the hostler in charge of the locomotive engine for defendant railway to be upon such engine at a station while it was being made ready to go out upon the road. After using a hose connected with the injector to sprinkle the coal loaded into the tender, the hostler used the injector to fill the boiler with water, and, by reason of the valve of the sprinkling hose not being closed, the boy was scalded by hot water and steam escaping therefrom. Held, that defendant’s duty to the boy was that of ordinary care, and an instruction requiring of it “great care” in the use of dangerous machinery was unwarranted. (Pp. 129, 130.)</p> <p>3. —Charge—Contradictory Instructions.</p> <p>The effect of giving an erroneous charge can be obviated only by its withdrawal. The giving of a correct but contradictory statement of the law on the subject, in another paragraph of the charge, will not suffice to cure the error. (P. 130.)</p> <p>4. —Jurisdiction of Supreme Court—Substantive -Error—Refusal to Consider Assignment.</p> <p>The refusal of the Court of Civil Appeals to .consider an assigned error in the charge because objection to same was not saved by bill of exceptions on the trial, though erroneous, would not be such error in substantive law as to furnish ground of jurisdiction to the Supreme Court under section 6 of article 1521, Rev. Stats., as amended by the Act of March 28, 1913 (Laws., 33d Leg., eh. 55, p. 107). But where the charge on a material issue was prejudicially erroneous and the objection properly saved and assigned, the refusal to reverse would be error in substantive law, though the appellate court improperly refused to consider the assignment. (P. 131.)</p> <p>5. —Objections to Charge—Bill of Exceptions.</p> <p>Where appellant’s objections to the general charge of the court were presented and overruled before the charge was given, errors so urged are not waived though the objections were not saved by bill of exceptions. ' (Pp. 131, 132.)</p> <p>6. —Same—Statutes Construed.</p> <p>The Act of March 29, 1913 (Laws, 33d. Leg., eh. 59, p. 113), so far as it applies to the general charge of the court, does not repeal by construction article 1972 of the Revised Statutes, by which errors in such .charge were subject to revision without the necessity of taking a bill of exceptions thereto. Nor was said article 1972 altered or repealed, as applied to the general charge by the amendments of articles 1973, 1974 and 2061, introduced by that Act, such articles relating only to special instructions requested, and not to the general charge. Article 1971, as amended by that Act, requires such charge to be submitted to counsel and their objections thereto to be presented to the court before it is read to the jury, or they are taken as waived. How such objections are to be evidenced of record is not prescribed. A filed paper showing them to have been duly presented and an order of the court showing that they were overruled is sufficient to enable the errors of which they complain to be reviewed on appeal, without a bill of exceptions. (Pp. 132-137.)</p> <p>7. —Same—Special Instructions.</p> <p>It seems that since the amendment of article 1794, Revised Statutes, by the Act of March 29, 1913 (Laws, 33d Leg., ch. 59, p. 113), a bill of exceptions must be taken to the giving or refusal of requested instructions, in order that error in such action should be reviewed. (P. 136.*)</p>

Maryland Dickey, by next friend, sued the railway company, and recovered. Defendant appealed, and on affirmance obtained writ of error.

<p>Questions certified from the Court of Civil Appeals for the Second District, in an appeal from Tarrant County.</p>

Original application to the Supreme Court for writ of mandamus requiring the Court of Civil Appeals to certify questions on the ground of conflict in decisions.

<p>1. Courts &wkey;o209(2) — Previous Conflicting! Decisions — Mandamus.</p> <p>Upon motion for rehearing in a suit for mandamus to require certification of decision, under Rev. St. art. 1623, by a Court of Civil Appeals upon the ground of conflict with the decision of another Court of Civil Appeals, the Supreme Court will not consider as a basis of conflict any decision not mentioned in the petition for mandamus.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 765; Dec. Dig. &wkey;3209(2).]</p> <p>2. Courts <&wkey;247(7) — Certification to Supreme. Court — Conflict.</p> <p>Under Rev. St. art. 1623, providing that where a Court of Civil Appeals arrives at a decision in conflict with the prior decision of another Court of Civil Appeals, it shall certify the question of law with the record to the Supreme Court for adjudication, mandamus to require certification on the ground of conflict cannot be based on conflict between decisions of the same court.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 752; Dec. Dig. &wkey;247(7).J</p> <p>3. Courts <&wkey;247(7) — Right to — Equities.</p> <p>In determining whether the Supreme Court shall require a certification of a decision by a Court of Civil Appeals, under Rev. St. art. 1623, on the ground that it conflicts with the decision of another court, equitable considerations, showing that petitioner has been denied some rights, cannot be considered.</p> <p>[Ed. Note. — For other cases, see Courts, Cent. Dig. § 752; Dec. Dig. &wkey;247(7).]</p>

The action was for injunction, which was granted by the trial court. Defendants appealed and the judgment was reversed and injunction dissolved, whereupon plaintiff obtained writ of error from the Supreme Court.

from Travis County. The City of Austin sued the insurance company to recover taxes, assessed against certain securities of defendant on deposit with the State Treasurer. Plaintiff recovered judgment, the trial being on an agreed case. Defendant appealed, and on affirmance of the judgment obtained a writ of error from the Supreme Court.

<p>1.—Boad—Bridges.</p> <p>A bridge is, ordinarily, but the part of a road or highway that crosses a stream; and the word “road,” when used in a statute, should be given this generic meaning, and include bridges, unless from the context it appears to be used in its specific sense. (P. 219.)</p> <p>8.—Same—Statutory Construction—Clauses of Constitution.</p> <p>As a general rule of construction a word used with a plainly restricted meaning in one clause of a constitution, as where roads and bridges are dealt with as distinct subjects (Const., art. 3, sec. 56; art. 8, see. 9; art. 11, sec. 2; and art. 16, sec. 24) should be given the same meaning when used in another section. But this is not a conclusive test. The spirit, purpose and scope of article 3, section 52 of the Constitution (Amendment of 1903) are to be consulted in determining whether “roads” as there used include bridges) as a necessary part thereof. (Pp. 219-222.)</p> <p>3.—Constitution—Boad—Improvement Bonds—Bridges.</p> <p>Where bonds have' been voted by a county for the construction of a “road” in accordance with section 52 of article 3 of the Constitution, the road so authorized included bridges as a part thereof; the proceeds of the bond issue could be appropriated to building bridges constituting a necessary part of the road, and an injunction against the issuance and sale of bonds voted for such purpose was unwarranted. (Pp. 222, 223.)</p>

Action by the Coleman-Fulton Pasture Company and others against Aransas County and others, for injunction, The District Court dissolved the temporary injunction, and on appeal by the plaintiffs this was reversed and the ease remanded with directions to issue the writ. Appellees then obtained writ of error.

Driginal application by Beach and others to the Supreme Court for mandamus to require McKay, as Secretary of State, to receive and file a corporate charter for the Moody Calculator Company.

<p>1. —Amount in Controversy—Pleading.</p> <p>A litigant may, at his election, omit to sue for any item of the damages due him, in which case such item is not placed in controversy unless- necessarily involved in damages claimed. (P. 231.)</p> <p>2. —Same—Case Stated. °</p> <p>Plaintiffs suing for damages to their property (injury to live stock by negligence of carrier in transporting them) alleged items of damages aggregating $977.00, and prayed judgment for that sum “as damages without interest.” Held that the amount in controversy was within the jurisdiction of the County Court, though interest on the amount of damage from date of injury was recoverable as an element of damages, and not interest as such, and, if claimed, would have brought the amount in controversy above the jurisdictional limit of $1000.00. Pecos & N. T. By. Co. v. Bayzor, 106 Texas, 544, followed. Pecos & N. T. By. Co. v. Canyon Coal Co., 102 Texas, 478, 119 S. W., 294, distinguished. (Pp. 229-232.)</p>

<p>Question certified from the Court of Civil Appeals for the First District, on error from Harris County.</p>

The State sued the North Texas Transfer & Warehouse Company to recover taxes, and had judgment. This was affirmed on appeal by defendant, who thereupon obtained writ of error.

<p>1. —Railway—Charter—Contract.</p> <p>The charter of a railway company, constituting a contract with the State, is granted on an implied undertaking by the -company created that it construct, maintain and operate a railway between the limits specified, and under an express statutory requirement constituting a part of its contract (Rev. Stats., art. 6625) that it will not abandon or remove any part of the main line once constructed. (P. 244.)</p> <p>2. —Same—Sold Out Road—Purchasers—Obligation.</p> <p>The purchasers of a railway at receiver’s sale take the property subject to the obligations imposed on the original company by which it was forbidden to abandon or dismantle any portion of its main line once constructed; and such purchasers and the company (no reincorporation being had) may be enjoined from tearing up such track for the purpose of using the materials in construction elsewhere. (Pp. 244, 245.)</p> <p>3. —Same—Operation at Loss.</p> <p>The fact that a railway company has become insolvent and its property and franchises sold and that the part of its track sought to be tom up and abandoned by the purchasers at receiver’s sale could not be -operated save at a continued loss, and that the property would -be valueless to them in such condition, will not render the prevention of its removal a deprivation of property without due process of law; nor will the track in question cease to be a part of the “main line” of the railway, within the meaning of the statute, because of such conditions. (P. 245.)</p>

. Application for writ of error to the Court of Civil Appeals for the Sixth District, in an appeal from Bowie County. The application for writ of error having been dismissed for want of jurisdiction, applicant moved for a rehearing, and his motion was overruled with a written opinion. '

E. V. O’ETeal and others sued Bush & Tillar, and obtained judgment for $29,095.68. Defendants appealed and the judgment was reversed and rendered in favor of appellants. Appellees thereupon obtained writ of error.

Action by E. V. O’Neal and others against Bush & Tillar. Judgment for plaintiffs for $25,000 was reversed and remanded by the Court of Civil Appeals (140 S. W. 242), and plaintiffs bring error.

<p>On motion for rehearing.</p>

<p>Bankruptcy—Delivery Bond—Sureties.</p> <p>Sureties on a delivery bond for property taken in execution are liable for -the stated value of the property in ease it is not returned to be sold as provided in the bond. They are not released from this liability by the fact that their principal was insolvent at the time and wasi subsequently adjudged a ■bankrupt, whereby the property in question, passing into the possession of the bankruptcy court, could not be surrendered for sale. (P. 262.)</p>

<p>1.—Certified. Question—Conflict in Rulings—Mandamus.</p> <p>Mandamus can be granted by the Supreme Court to require a Court of Civil Appeals to certify to it for decision, on the ground of conflict in rulings, a question determined in a ca^e in which the jurisdiction of the latter court is final, only where such ruling is in conflict with that of another Court of Civil Appeals. Where it is not so, but the conflict is with a ruling by the Supreme Court, the propriety of certifying the question is left to the appellate court. (P. 263.)</p> <p>8.—Same—Husband and Wife—Bank—-Deposit.</p> <p>It was ruled in this case by the Court of Civil Appeals (152 S. W., 691) that where the husband and wife had deposited her separate means to her individual credit in the savings department of a bank to- be paid out only on draft by the depositor and production 'of -the pass book then delivered to her, the control over his wife’s separate estate given the husband by statute protected the bank in making payment" of such deposit to another on the husband's check and without production of the pass hook, as against the claim of the wife who retained the pass hook and signed no check. Held that this ruling was in conflict with that of the Court of Civil Appeals for the Fourth District in O’Connell v. Storey, 105 S. W., 1174, and the Court of Civil Appeals is required by mandamus to certify the question. (Pp. 263, 264.)</p>

<p>1.—Owner Defined.</p> <p>The word “owner,” as generally used, signifies one having the legal title; but it is frequently used in statutes to denote one holding for himself and in his own right, but having less than absolute title. It may be necessary to consult the context to determine in which sense it is used. (P. 268.)</p> <p>3. —Statute—-Irrigation—rPerson “Owning” Land.</p> <p>The person “owning” land subject to irrigation, whose lease of water rights may attach a lien on the crops raised on the land so irrigated, under the terms of the statute (Rev. Stats., 1911,-art. 5009, sec. 18, p. 25, General Laws of 1895) need not be the absolute owner. One holding by lease could -contract with the irrigation company for water supply for his crops, and thereby fix a lien in the company’s favor on the crops-so raised. (Pp. 267-272.)</p> <p>*37—Statutory Construction.</p> <p>The construction given to one section of a statute should he in harmony with other sections and the same term, in different section of the Act, should ordinarily be given the same significance. (P. 271.)</p> <p>6</p> <p>4. —Irrigation—Lien—Priority.</p> <p>The lien upon crops created by the contract of one holding land with the company furnishing water to irrigate same, by the terms of the statute (Rev. Stats., 1911, art. 5009) takes priority over the lien of the landlord or a mortgage lien, though they were created prior to the making of such contract for irrigation. (Pp. 272, 273.)</p> <p>5.—Same.</p> <p>The Legislature may give a statutory lien priority over contract or statutory liens previously attaching, where its object is to secure a charge necessary to the preservation of the property. (P. 272.)</p>

<p>Injunction—Contract—Restraint of Trade.</p> <p>A partnership purchased a gin and mill, the vendors agreeing that while the purchasers continued to- operate such gin and mill in the community they, the sellers, would not engage in similar business there. The purchasing partnership incorporated, taking in a new man as stockholder and one of the firm retiring. They then moved the gin and most but not all of the machinery connected with its operation to another county, replacing it with other gin and machinery. The vendors thereafter put up a new gin and mill and operated it. The corporation sued them for damages for violation of their contract, seeking injunction also against continuance of the business. They had verdict and judgment for nominal damages only, but injunction was refused. Held:</p> <p>1. That since the verdict, though only for nominal damages, established that defendants had broken their contract, plaintiffs were entitled to the injunction sought against its continued violation. (P. 278.)</p> <p>2. The agreement not to engage in a similar business while the purchasers “operate such gin and mill” referred to the operation of such business in that community, and was not limited to its- operation with the very machinery purchased. (Pp. 278, 279.)</p> <p>3. The rights of the purchasers under such contract could be sold and assigned, and they passed from the partnership to the corporation by assignment of the property and contract. (P. 279.)</p> <p>4. The ¡contract not to engage in the business was not invalid restraint of trade at common law; nor was it violative of the anti-trusjt statutes of the State. (P. 279.)</p> <p>5. The right to the injunction was not lost by plaintiff’s failure for more than three years to seek such equitable relief. (P. 279.)</p>

<p>False Imprisonment—Agency—Damages—Question of Fact.</p> <p>Recovery being had of actual and exemplary damages for false imprisonment where plaintiff was arrested by a deputy constable employed by defendant to preserve order on Ms show grounds!, .it is held:</p> <p>1. The testimony considered does not present an absence of legal evidence to show that the officer acted by defendant’s directions and under his employment, not merely on Ms own volition as peace officer. (Pp. 282, 283.)</p> <p>2. If the officer acted within the scope of his employment, though he exceeded his instructions, defendant was liable. (P. 282.)</p> <p>3. If the arrest was by defendant's instructions and the unlawful violence exercised in his presence and with his tacit consent, a recovery of exemplary damagesi also was warranted. (Pp. 282, 283.)</p>

Original application to the Supreme Court, by Pruett, for writ of mandamus against Eobison, Commissioner of the General Land Office, with whom E. 0. Williams, an adverse claimant of the school land in controversy, was joined as respondent.

<p>1. —Will—Devise—Construction—Election.</p> <p>Where the testator owns a partial interest in land, it is only when the in- • tention to treat and devise the entire land as his own is revealed by clear and unequivocal language that the will is, to be construed as the disposition of more than his own interest, putting the co-owner of' the land, as a devisee, to his election whether he will take under the will or assert his right as co-owner. (Pp. 301, 302.)</p> <p>2. —Same—Case Stated,</p> <p>A deceased wife having 'bequeathed her community interest in their 701.71 acres of land to her husband for life, with remainder to their five children, the husband, by will, subsequently devised to such children, along with certain personal property, “67 acres of land each out of the real estate owned by me at the time of the death of their mother, except my son W. A. to whom I bequeath 80 acres.” Fifty acres of a particular tract of such land was, by a subsequent clause, bequeathed to others, an illegitimate daughter and son (a total of 398 acres) and the balance of his real estate to his second wife. Held:</p> <p>1. That the will should be construed as a disposition only of the interest in such land owned by testator, and not the entire 701.71 aeresi of which the five children were with him co-owners of one-half under the will of their mother, and that they were not required to abandon the interest so owned by electing to take under the will. (Pp. 300-304.)</p> <p>2. The fact that the number of acres so devised exceeded the 350.86 owned by the husband, and left no balance to pass to the second wife by his devise, could not prevail, as evidence of intention to dispose of the entire land, over the language of the devise which restricted its operation to land owned by the testator. (Pp. 304, 305.)</p> <p>3. —Will—General and Specific Devises.</p> <p>A devise of fifty acres of land out of a named tract, being specific, prevailed over general devises of enumerated acreage of lands owned by the testator; and where the total acreage devised exceeded the amount of his- interest in the lands the specific devise should he allowed in full and the general ones proportionally abated to make it up. (Pp. 304, 305.)</p>

<p>1.—Carriers—Interstate Commerce Law—Connecting Lines.</p> <p>Under the Carmack Amendment to the Interstate Commerce Law (Act of Congress, June 29, 1906, ch. 3591, sec. 7; 34 Stats., 595; U. S. Comp. Stats., 1913, sec. 8592) the initial carrier receiving property for through interstate transportation over its oWn and connecting lines, is liable, not only for injury to the property transported, incurred on the line of a connecting carrier -and by its negligence, but for special damages caused by negligent delay of the shipment upon such connecting line, it having notice, in making the contract, of the circumstances rendering such damage a natural result of the delay. New York P. & N. E. Co. v. Peninsular Prod.Exch. oí Md., 240 U. S., 34, followed (Pp. 310-312.)</p> <p>2.—Same—Contract Restricting Liability.</p> <p>Under the Amendment to the Interstate Commerce Law by Act of June 29, 1906, the liability for damages incurred on a connecting line, imposed by such law on the initial carrier, can not be avoided by it by inserting in the contract or bill of lading a clause limiting its liability to injuries incurred in the transportation over its own line. (Pp. 313, 314.)</p> <p>3. —Carriers—Connecting Lines.</p> <p>Under an oral contract by a carrier for transportation of a series of through shipments over its own and a connecting line to a point in another State, such carrier was liable for special damages for delay, growing out of circumstances of which it had notice when contracting, not only upon shipments originating on its own line, but on those originating on another road and coming to it therefrom for such transportation, provided it had notice that they were a part of the shipments contemplated by its original contract. (Pp. 313, 314.)</p> <p>4. —Supreme Court—Question of Pact.</p> <p>The Supreme Court has no power to determine questions of fact; ■ it can only decide whether there is any evidence on a given point. Held that there was evidence in this case tending to support conclusions: that the general freight agent had power to bind another road as well as his own by a contract for through transportation; that such other company was a party to the contract made through him; and that it had notice of circumstances subjecting it to special damages for delay in performance of such contract. (P. 314.)</p> <p>5.—Carrier—Contract—Pleading.</p> <p>Petition here considered is held to base plaintiff’s action on an oral contract for through transportation of a series of shipments,' and not on the bills of lading issued by the carrier for each of the several shipments as tendered. (P. 314.)</p>

<p>1.—Constitution of United States—Rulings of its Courts Conclusive.</p> <p>The question whether a, tax levied upon a railway company is one upon interstate and foreign commerce, and hence beyond the power of the State to impose, is controlled by the decisions of the Supreme Court of the United States. {P. 318.)</p> <p>2. Same—Cases Discussed.</p> <p>The rulings of the Supreme Court of the United States in Galveston, H. & S. A. Ry. Co. v. State, 210 U. S., 217; Oklahoma v. Wells, Fargo & Co., 223 U. S., 289; and United States Exp. Co. v. Minnesota, 223 U. S., 335, disinguishing and limiting Maine v. Grand Trunk Ry. Co., 142 U. S., 217, explained and followed. (Pp. 318-320.)</p> <p>3. —Taxation—Interstate Commerce.</p> <p>The tax imposed upon terminal railways by Revised Statutes, 1911, art. 7384 (sec. 16, of the Act of May 16, 1907, Laws, 30th Leg., p. 487) being one per cent of its gross receipts] from all sources, including those derived from interstate and foreign commerce, and being in addition to all other taxes imposed by law, though designated as an occupation tax, was unconstitutional as being a tax upon such commerce. (Pp. 317-321.)</p> <p>4. —Same.</p> <p>The tax imposed by Revised Statutes, 1911, art. 7384, could not be sustained as an attempt to reach for taxation the additional values of its buildings, lands, and fixtures as being a “going concern.” Such values being fully taxed ad valorem by other provisions of the statutes. (P. 320.)</p>

<p>1.—Master and Servant—Assumed Risk—Question of Law.</p> <p>Pacts in an action by an employe injured by his fall through an unguarded opening in the floor occasioned by slipping upon cinders near its edge, are considered and held to show a case where the servant should be adjudged to have assumed the risk, and to require the giving of a requested peremptory instruction to find for defendant—the servant being familiar with the premises and the opening, and the presence of the pile of cinders being obvious. (Pp. 323-328.)</p> <p>3.—Same.</p> <p>The general principles governing the risks assumed, by the servant, his knowledge of dangers and duty of care with reference to obvious conditions are discussed and stated. (Pp. 326, 327.)</p> <p>3.—Charge—Invited Error.</p> <p>Where a request for a peremptory instruction to find for defendant has been refused, charges thereafter requested for the purpose of securing a proper submission of the issue of asisumed risk (the question of leaving such issue to the jury having been already ruled on) can not be held to invite the error of submitting such issue instead of giving the peremptory charge. (Pp. 327, 328.)</p>

Waggoner’s motion to correct the entry of a judgment against Bogers made more than four years before was granted by the trial court. Defendant appealed, and on the judgment being reversed and rendered Waggoner obtained writ of error.

Morgan & Bros, sued the railway company for loss of cotton by fire and recovered judgment. This, on defendant's appeal, was reversed and rendered in its favor, whereupon Morgan & Bros, obtained writ of error.

Taylor and others sued Dunn and others and obtained judgment. On defendants’ appeal (after being first affirmed [143 S. W., 311] the judgment was reversed and rendered-for appellant [147 S. W., 287]). Separate applications for writ of error by Taylor and others and by the Nueces Valley Irrigation Company were both granted and docketed as one case. Opinions on previous appeals are: Dunn v. Taylor, 42 Texas Civ.

Sanford, as administrator, sued Taylor to cancel a deed made by-decedent. Plaintiff had judgment, which was affirmed on appeal by defendant (150' S. W., 262), who thereupon obtained writ of error.

The Southwestern Iron Company brought suit against Turner and others and the Texas Glass & Paint Company intervened. Both companies appealed from the judgment, which was thereupon reformed and affirmed, and both obtained writs of error on separate applications.

Action by Michael against Crawford and another. Judgment for defendants was affirmed on error prosecuted by plaintiff (150 S. W., 465) and he then procured writ of error from the Supreme Court.

The traction company, which had appealed from a judgment in favor of Evans, obtained writ of error on its affirmance (152 S. W., 707).

Huggins obtained writ of error on the affirmance, with remittitur, of a judgment obtained against him by Mrs. Carey in her action for breach of promise to marry.

Boseborough sued Cook and others for the recovery of land. He obtained writ of error on the affirmance on his appeal (148 S. W., 1120) of a judgment for defendants.

Sullivan and wife sued Doyle and McKinley on a note and for foreclosure, making Botts and the bank and trust company defendants as claimants of adverse liens. Botts and Doyle, by cross-action, asserted superior liens. The liens were foreclosed, that of Botts being given preference, that of the plaintiffs next, and Doyle being denied recovery. He appealed and the judgment was reversed (150 S. W., 473). Sullivan and wife then obtained writ of error.

<p>1.—Telegraph—Death Message—Notice of Relationship.</p> <p>It is not necessary that a death message sent to obtain attendance of relatives at the funeral should itself give notice of the relationship of thos'e parties. It was sufficient if it showed that their presence was desired, and that its language was such as to put the company on inquiry if it wished further information. (P. 373.)</p> <p>2.—Same—Case Stated.</p> <p>A telegram, sent at the instance of a mother desiring attendance and comfort of her parents at the funeral of her -child, -was not delivered and thereby they failed to -come. It was addressed to another relative, and was in words: “Tom Tucker’s baby died today. If any one can come send telegram.” Held that the message, by its terms, conveyed notice to the company: that it was to summon to the burial some one in close relationship to- the sender and that interment would have been delayed to- await arrival; that it was sufficient to put the company on inquiry as to the relationship and circumstances, if it desired further information; and that the suffering of damages consequent under such conditions should have been -contemplated when delivery of the message was undertaken. (Pp. 373, 374.)</p>

Jenkins sued the telegraph company and obtained judgment. This was affirmed on appeal by defendant, who then obtained writ of error.

■ Error to the Court of Civil Appeals fo'r the Fifth District, in an appeal from Dallas County. Wilson sued the telegraph company and recovered judgment, which was affirmed on defendant’s appeal (152 S. W., 1169). Appellant then obtained writ of error.

<p>Error to the Court of Civil Appeals for the Seventh District, in an appeal from Donley County.</p> <p>The railway company obtained writ of error on the affirmance on appeal of a judgment recovered against it by Carroll.</p>

<p>1.—Life Insurance—Forfeiture for Non-payment—Waiver.</p> <p>Where the contract of insurance provided that “a failure to pay any premium when due will render this policy wholly void” such default, ipso facto, at once forfeited the policy, unless such forfeiture was waived by the insurer; and this though the policy provided that insured could compel such waiver by paying the premium with five per cent interest within 30 days after it became due. Being forfeited at once, such forfeiture could be waived by the insurer before the expiration of the thirty days allowed the insured to avoid it. (P. 386.)</p> <p>3.—Same.</p> <p>A letter by insurer to insured, following forfeiture by the latter’s default in payment of premiums, expressing the insurer’s desire that he should continue his insurance and asking the reason for his default, was to be construed in connection with previous letters referring to and waiving previous default^, and so considered constituted evidence sufficient to support a finding that the insurer waived thereby the forfeiture in question. (Pp. 385-387.)</p> <p>3. —Same—Sufficiency of Evidence.</p> <p>In testing the sufficiency of evidence to support a finding by the trial court, only that favorable to its conclusion is to be considered, and every legitimate inference to be drawn from the facts proved in support of that conclusion is to be indulged. (Pp. 387, 388.)</p> <p>4. —Contract—Procuring Business for Insurer.</p> <p>A contract by the insurer provided that if the insured should furnish annually the names of ten persons in his county deemed insurable and cause it to receive the regular premiums on insurance to the amount of ten thousand dollars he should receive annually a certain amount based on the amount of business so obtained. If such agreement wasi applicable to policies taken out by insured himself, it did not entitle him to any credits therefor where his premiums were not paid, but were in default. (Pp. 388, 389.)</p> <p>5. —Insurance—Default—Premium Note—Forfeiture—Beneficiary.</p> <p>On default in payment of a premium at maturity, thereby forfeiting the policy by its terms, the insurer accepted a thirty days note therefor from insured, which provided for waiver of the forfeiture only in case such note was paid at maturity. This not being done, the forfeiture became effective according to the terms of the note; and this though a full year’s premium had been paid on the policy, and the beneficiary was not a party to the agreement evi- • denced by the note. (Pp. 389, 390.)</p>

The action was by Eriksen against McWhorter, and between conflicting claimants as purchasers of school land. Eriksen had judgment and McWhorter appealed. The judgment was reversed and rendered in his favor (151 S. W., 624). Eriksen thereupon obtained writ of error.

Lively sued the Exchange National Bank, and the latter impleaded and asserted a cross-action against the State Bank & Trust Company and McFarland. Lively recovered judgment and the Exchange National Bank had judgment on its cross-action against the State Bank & Trust Company and McFarland. Both the banks and McFarland appealed. The judgment was affirmed, and the State Bank & Trust Company and McFarland obtained writ of error.

<p>1. —Limitation—New Promise.</p> <p>Where in. an action for debt a new promise is relied on to avoid a plea of limitation, such promise, whether made before or after the bar is complete, constitutes the cause of action and must be relied on for recovery. (P. 401, 402.)</p> <p>2. —Same—Usury.</p> <p>An antecedent indebtedness is not affected by subsequent usurious renewals or extensions, where it may be declared on independent of them. But this rule has no application where recovery on the original contract is barred by limitation and plaintiff’s action must rest on subsequent ackonwledgments of the debt by renewals or extensions upon usurious interest. (P. 401.)</p> <p>3. —Same.</p> <p>Where plaintiff", by reason of the plea of limitation, was compelled to rely on a new promise extending or renewing the debt upon usurious interest, the defense of usury applies, and the usurious interest collected must be deducted from the principal of the debt. (Pp. 401-403.)</p> <p>4. —Appeal-—Cross Assignments-—Writ of Error.</p> <p>An appellee -making cross-assignments of error is entitled to have them passed on by the Court of Civil Appeals; but he can have those rulings reversed by the Supreme Court only by himself applying for writ of error thereon. (P. 403.)</p>

<p>Error to the Court of Civil Appeals for the Second District in an appeal from Baylor County.</p> <p>Lanham sued Cockrell, and obtained a writ of error on the affirmance, on his appeal, of a judgment for defendant.</p>

of Civil Appeals for the Fifth District, in an appeal from Limestone County. The action was by Eussbaum & Scharff and the insurance company against the Trinity & Brazos Valley Railway Company for loss of cotton by fire. Defendant had judgment and plaintiffs appealed. On affirmance, Eussbaum & Scharff obtained writ of error.

Palmo recovered judgment against Slayden, and it was affirmed on appeal by the latter (151 S. W., 649), who thereupon obtained writ of error.

<p>Error to the Court of Civil Appeals for the Sixth District, in an appeal from Tarrant County.</p> <p>Armour & Company obtained writ of error on the affirmance on appeal of a judgment recovered against it by Morgan.</p>

Motion by relator Bostic for leave to file petition for writ of mandamus against the county judge of Bockwall County. Similar applications to file petitions by Jesse Bostic and by Frank Bostic fell within the ruling here made, and were denied.

<p>Error to the Court of Civil Appeals for the Eighth District, in an appeal from Harris County.</p> <p>Davis & Blackwell sued the warehouse and storage company and recovered judgment. The company appealed, and on affirmance (153 S. W., 670) obtained writ of error.</p>

Bailey sued the telegraph company and recovered. The company, appealing, on affirmance of the judgment applied for writ of error. This opinion was pronounced on applicant’s motion for a rehearing on its application, which had been refused.

<p>Dissenting opinion.</p>

<p>1.—Constitutional Law—Supreme Court—Writ of Error—Act of 1917.</p> <p>The designation by the Supreme Court of three members each from a different Court of Civil Appeals, to act as a committee of judges in passing on applications for writs of error to the Courts, of Civil Appeals (Act of March 15, 1917, Laws, 35th Leg., eh. 72, p. 142)- will not leave those courts unable to perform their functions. The remaining two judges constitute a majority of the court and a quorum to transact its business. City of Austin v. Nalle, 85 Texas, 520. (Pp. 437, 438.)</p> <p>2,—Same.</p> <p>The statute for relief of the crowded dockets,, of the Supreme Court (Act df March 15, 1917, Laws, 35th Leg., p. 142) and providing for its designation of a committee of judges of the Courts of Civil Appeals to pass upon applications for writs of error to such courts did not create a new court. It simply added certain duties to the justices of courts already existing, to be discharged only in their capacity as such justices. (P. 437.)</p> <p>3. —Same.</p> <p>The Legislature being empowered by the Constitution to confer on Courts of Civil Appeals “such other jurisdiction, original or appellate as may be prescribed by law,” could impose on justices, of such courts additional judicial duties which have relation simply to a method of appeal of causes determined by those courts. (P. 438.)</p> <p>4. -—Same.</p> <p>The writ of error is a mode of securing revision of causes on appeal. Its allowance may involve the exercise of judicial power; but nothing in the Constitution forbids the exercise of such power by justices of the Courts of Civil Appeals in allowing appeals from those courts to the Supreme Court. In the absence of prohibition the Legislature may confer on judges the authority to perform judicial acts necessary to the due administration of the law, as it empowers judges to perform certain judicial acts in chambers or in vacation; or as, in the Federal practice, the Chief Justice of a State Supreme Court is authorized to allow a writ of error for the review of its decision by the Supreme Court of the United States. (P. 438.)</p> <p>5. —Same.</p> <p>The Constitution not only fails to declare the mode by which the jurisdiction of the Supreme Court may be made to attach, but directly authorizes the Legislature to limit and change the jurisdiction itself. It is equally competent for it to establish the mode by which that jurisdiction may be invoked. (P. 439.)</p> <p>6. —Same.</p> <p>There is no vested right in the mode of appeal by allowance of writ of eiror by the Supreme Court. That method was the creation of the former statute; and the jurisdiction of that court is to be exercised under such limitations and. regulations as the Legislature may provide. The manner and mode by which it is acquired is matter for legislative control in the absence of constitutional direction. (P. 440.)</p> <p>7. —Same.</p> <p>An Act of the Legislature is to be held valid unless forbidden by the Constitution in express terms, or by necessary implication. The Act of March 15, 1917, Laws, 35th Leg., p. 142, was a valid and constitutional exercise of legislative power. (P. 441.)</p> <p>8. —Dissenting Opinion.</p> <p>Mr. Justice Hawkins, concurring in the present order refusing the application for hearing, as being determined by the previous action of the majority of the court setting in operation the Act of March 15, 1917, from which he had dissented, files his opinion expressing his dissent .to that action on the ground of the unconstitutionality of such statute. (P. 441.)</p>

an appeal from Matagorda County. Burnham and others sued the Hardy Oil Company and others for the recovery of land. Defendants had verdict and judgment under peremptory instructions. Plaintiffs appealed ; and the judgment, affirmed as to the others, was reversed and remanded as to two appellants, Legge and Far jeon. All the defendants applied for and obtained writ of error.

Being restrained of her liberty by her husband, J. A. White, and others, under an adjudication that she was an insane person, Mrs. Lillie White brought habeas corpus, alleging that the proceeding, which was under the Act of April 8, 1913, was void because of the unconstitutionality of the Act. Her claim of the invalidity of the Act was denied by the trial court, but sustained on her appeal, whereupon J. A. White obtained writ of error.