Hodges v. Coke County

• Decision Date: 16 September 1946
• Docket Number: No. 5736.,5736.
• Parties: HODGES et al. v. COKE COUNTY et al.
• Court: Texas Court of Appeals

196 S.W.2d 935

HODGES et al. v. COKE COUNTY et al.

No. 5736.

Court of Civil Appeals of Texas. Amarillo.

September 16, 1946.

Rehearing Denied October 11, 1946.

Motions to Certify Overruled November 18, 1946.

See 197 S.W.2d 886.

Appeal from District Court, Cochran County; Daniel A. Blair, Judge.

Suit to cancel oil and gas lease by T. C. Hodges and others against Coke County, Tex., and another. From an order sustaining named defendant's plea of privilege to have the case transferred from the district court of Cochran county to the district court of Coke county, the plaintiffs appeal.

Affirmed.

Kennedy & Porter, of Morton, F. D. Brown and Nelson, McCleskey & Howard, all of Lubbock, for appellants.

Neill & Lewis, of San Angelo, G. S. Arnold, of Robert Lee, and H. S. Garrett, of Fort Worth, for appellees.

PITTS, Chief Justice.

Appellants, T. C. Hodges, Clifford Moores, and C. B. Wakefield, sued appellees, Coke County, Texas, and The Texas Company, a corporation, to cancel an oil and gas lease that Coke County through its Commissioners Court had on June 11, 1945, executed and delivered to The Texas Company covering one hundred seventy-seven acres of land situated in Cochran County to which land appellant, T. C. Hodges, claims fee-simple title, and in which the other appellants claim some character of mineral interest. In due course Coke County filed its plea of privilege to have the case transferred to the District Court of Coke County for trial and appellants controverted the plea. The trial court heard the issues and sustained the plea of privilege from which order appellants perfected an appeal to this Court.

The record reveals that the land in question had been Coke County school land and had been previously conveyed to appellant, T. C. Hodges, by Coke County with some sort of mineral reservations made and that the other appellants were claiming that appellant, T. C. Hodges, had conveyed some character of mineral interest in said land to them.

Appellants contend in three points of error assigned that Cochran County has venue by reason of the provisions of Subdivision 14 of Article 1995, Revised Civil Statutes, which provides that "Suits for the recovery of lands or damages thereto, or to remove incumbrances upon the title to land, or to quiet the title to land * * * must be brought in the county in which the land, or a part thereof, may lie."

Appellees claim venue in Coke County by reason of the provisions of Subdivision 19 of Article 1995 which provides that "Suits against a county shall be brought within such county."

Appellants contend also that the provisions of Subdivision 30 of Article 1995 lends some strength to Subdivision 14 since Subdivision 30 says, "Whenever in any law authorizing or regulating any particular character of action, the venue is expressly prescribed, the suit shall be commenced in the county to which the jurisdiction may be so expressly given." But we do not think Subdivision 30 gives any more support to Subdivision 14 than it does to Subdivision 19. We think it refers in particular to other laws separate and apart from Article 1995 that may have to do with jurisdiction or venue and lends no support to appellants' contentions in this case.

The only question presented to us for determination is which of the two subdivisions, 14 or 19, shall control in determining the question of venue in the action against Coke County.

Appellants contend further that there is an apparent conflict between the provisions of Subdivision 14 and Subdivision 19 of the said Article but that the "must" clause in Subdivision 14 will "control over the `shall' provision of Subdivision 19."

Volume 27 Words and Phrases, Permanent Edition, pages 884 et seq. and Vol. 39 pages 91 et seq., in discussing the usages in various jurisdictions of the words "Must" and "Shall," says both words are usually mandatory when used generally in statutes and certainly so when the use of either word pertains to legal rights that ought to be exercised.

In the case of Christensen v. Foster Tex.Cr.App., 297 S.W. 657 (writ refused), the court says that the words "Shall" and "Must" as used in the venue statutes have the same meaning and the same legal effect and there cites the case of Mitchell v. Hancock, Tex.Civ.App., 196 S.W. 694, 700, in support thereof. We, therefore, do not agree with appellants' contention that "Must" is a "stronger" word than "Shall" in such instances and will "control" over the word "Shall."

We think it is necessary to determine the legislative intent in an effort to reconcile the two provisions hereinabove referred to in which event it is permissible to go behind the adoption of a code for aid in determining the intention of the legislature in respect to apparent ambiguous or repugnant provisions.

On May 11, 1846, the Texas Legislature passed "An Act to incorporate the several counties of this State, which now exist or which may be hereafter established." The first section of that act provided that each county "shall be a body corporate and politic." The second section provided how a county may sue and be sued. The third section provided ways and means for prosecuting and defending the county's interests in suits in which the county is a party. Section four says, "That all suits against a county shall be instituted and prosecuted to final judgment in some court of competent jurisdiction within such county." Section four of that act has been brought forward in each revision of the statutes and is now found to be Subdivision 19 of Article 1995 stated in fewer words. Two days later, on May 13, 1846, the same Legislature passed "An Act to regulate proceedings in the district courts." The first section of that act provided "That no person who is an inhabitant of this State shall be sued out of the county where he has his domicile except in the following cases, viz:" Then there follows eleven exceptions the last of which was that "in cases where the recovery of land, or damages thereto, is the object of a suit in which cases suit must be instituted where the land or a part thereof is situated," which provision has been brought forward and is now Subdivision 14 of Article 1995 stated in a little different language.

It appears to us th...