Caples v. Cole
| Decision Date | 11 February 1937 |
| Docket Number | No. 7198.,7198. |
| Citation | 102 S.W.2d 173 |
| Parties | CAPLES v. COLE.<SMALL><SUP>*</SUP></SMALL> |
| Court | Texas Supreme Court |
Trespass to try title by M. T. Cole against W. J. Caples, wherein defendant filed a cross-action claiming title, and plaintiff took a nonsuit. A judgment for plaintiff on the cross-action was affirmed by the Court of Civil Appeals , and defendant brings error.
Affirmed.
John T. Gano, of Houston, for plaintiff in error.
Bramlette & Levy and Richard B. Levy, all of Longview, for defendant in error.
This suit involves 39.5 acres of public free school land situated in Gregg county. M. T. Cole filed this suit in the district court in trespass to try title against W. J. Caples for this land. To this action Caples answered, and by cross-action claimed title to the land. Cole answered the cross-action by general demurrer, general denial, and a plea of not guilty, and took a nonsuit as to his cause of action for the land. The parties went to trial before the court without a jury upon the cross-action of Caples, and at the close of the evidence the court entered judgment against Caples on his cross-action. The Court of Civil Appeals at Texarkana affirmed the judgment of the trial court. 98 S.W.(2d) 447.
Both parties assert their interest in this land by virtue of the Act of 1931, chapter 271 of the General Laws of the Regular Session of the 42d Legislature, commonly known as House Bill 358, now article 5421c, Vernon's Annotated Texas Civil Statutes. The facts are brief. Cole on June 17, 1931, made application to the Land Office to purchase this land, and a patent was issued to him on August 19, 1931. Caples on September 10, 1931, filed with the county surveyor of Gregg county an application for a survey of the land for the purpose of purchase, or, in the alternative, for leasing it for oil and gas purposes. This application was thereafter filed in the Land Office on June 7, 1932, and was rejected by the Land Commissioner on September 21, 1933, on the ground that the land had already been patented to Cole. It was agreed that in June, 1931, when the land in controversy became involved in these matters, "said land was within five miles of a producing oil well."
The first question raised is: When did this act take effect? Cole contends that, since the act was finally passed with an emergency clause, it went into effect immediately after its passage. Caples, on the other hand, contends that, since the original bill did not pass the House on its third reading by a two-thirds yea and nay vote, it failed to meet the constitutional requirement, and did not take effect until ninety days after the adjournment of the Legislature.
This act originated in the House, and passed that body by a viva voce vote. Thereafter it was sent to the Senate, where it was amended, and passed as amended by a vote of 31 yeas and no nays. The bill was then returned to the House, where the amendments adopted by the Senate were concurred in by the House by a vote of 103 yeas and no nays. The regular session of the Legislature adjourned on May 23, 1931, and the act was approved by the Governor on May 29, 1931. The act contained an emergency clause.
Article 3, section 39, of the Constitution provides: "No law passed by the Legislature, except the general appropriation act, shall take effect or go into force until ninety days after the adjournment of the session at which it was enacted, unless in case of an emergency, which emergency must be expressed in a preamble or in the body of the act, the Legislature shall, by a vote of two-thirds of all the members elected to each House, otherwise direct; said vote to be taken by yeas and nays, and entered upon the journals."
This precise question has never been before this court for decision. A conflict has arisen by reason of an opinion rendered by the Court of Civil Appeals at Fort Worth, in the case of Wilson v. Young County Hardware & Furniture Co., 262 S.W. 873, and an opinion rendered by the Court of Criminal Appeals in the case of Ex parte May, 118 Tex. Cr.R. 165, 40 S.W.(2d) 811. In the Wilson Case the Court of Civil Appeals held, in effect, that the passage of a bill required to be taken by ayes and nays is the vote by which each house adopts it after final reading, and not that vote by which the house in which it originated may subsequently concur in amendments made by the other house. This case did not reach the Supreme Court, so far as our records show, and the holding therein has never been approved or disapproved by this court. In the May Case the Court of Criminal Appeals held, in substance, that a substitute bill, different from the original bill, and not passed by a record vote showing concurrence of two-thirds of the Legislature, was ineffective as an emergency measure; and that the power to make an emergency measure must be exercised when the Legislature becomes aware of the terms contained in the bill as finally agreed upon and passed. The Court of Civil Appeals followed the rule announced by the Court of Criminal Appeals in the May Case, and held that the vote upon the amendments, and not the vote upon the original bill, would control. The authorities bearing upon this question are reviewed in the two opinions above cited, and we shall not review them here.
It is highly important that the spirit of comity should at all times exist between the Court of Criminal Appeals and the Supreme Court; and, if possible, a conflict of opinions on the matters over which they have co-ordinate jurisdiction should be avoided. Uniformity of opinion by the two courts upon all questions is important and greatly desired. An opinion by the Court of Criminal Appeals on any subject that comes within its jurisdiction always carries great weight with this court.
Furthermore, we agree with the holding of the Court of Criminal Appeals in the May Case, and hold that this bill became effective immediately after its passage. It is clear that the object of the provision of the Constitution above quoted is that if a bill is to take effect immediately on its passage, it must contain an emergency clause and such bill must be passed by a vote of two-thirds of all the members elected to each house, and such vote to be taken by yeas and nays and entered upon the journals. We think the rule prescribed by the Constitution also applies to amendments and reports of conference committees. If this were not true, it is quite obvious how the rule could be abused. A harmless bill might be passed in its inception by the requisite vote, and then be radically amended and such amendments be put into immediate effect without the vote required by the Constitution. If such were the rule, the vote on the original bill would control as to whether it became a law immediately after its final passage, and not the final vote subsequently taken on the amendments placed thereon by the other branch of the Legislature, and the plain provision of the Constitution requiring that it be adopted by a vote of two-thirds of all the members of each house, in order to declare an emergency, could be evaded.
The main question presented here is: Did the Act of 1931 authorize the issuance of a patent to Cole, as was done, for land situated within five miles of a producing oil or gas well? The Act of 1931 contains many sections, and in the opinion in Wintermann v. McDonald (Tex.Sup.) 102 S.W.(2d) 167, this day announced, certain sections of the act are discussed in detail, and we refer to that opinion for such discussion. However, we shall refer to certain provisions of this act in this opinion, in order to reveal the intention of the Legislature with reference to the question presented here. Section 2 of House Bill 358 (Vernon's Ann.Civ.St. art. 5421c, § 2) describes how surveyed public free school land may be sold, but specifically contains the following provision: "Provided that all such land within five miles of a well producing oil or gas in commercial quantities...
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