Kilpatrick v. Compensation Claim Board

• Decision Date: 31 January 1924
• Docket Number: (No. 1568.)
• Citation: 259 S.W. 164
• Parties: KILPATRICK et al. v. COMPENSATION CLAIM BOARD et al.
• Court: Texas Court of Appeals

Page 164

259 S.W. 164

KILPATRICK et al. v. COMPENSATION CLAIM BOARD et al.

(No. 1568.)

Court of Civil Appeals of Texas. El Paso.

January 31, 1924.

Rehearing Denied March 6, 1924.

Appeal from District Court, Presidio County; C. R. Sutton, Judge.

Action by D. D. and J. J. Kilpatrick against the Compensation Claim Board and the members thereof. From a judgment of dismissal, plaintiffs appeal. Reversed and remanded.

Mead & Metcalfe, and H. H. Kilpatrick, all of Marfa, for appellants.

W. A. Keeling, Atty. Gen., and Bruce W. Bryant, Asst. Atty. Gen., for appellees.

HIGGINS, J.

Appellants brought this action in the district court of Presidio county against the Compensation Claim Board to establish a claim for $8,000 for certification to the comptroller as the basis for a warrant upon the state treasurer in favor of the plaintiffs for said sum. The action constitutes an appeal from an order of the Compensation Claim Board rejecting a claim for compensation by appellants for losses sustained in being prevented from growing cotton in the year 1919 in a noncotton growing zone established as hereinafter indicated. General and special exceptions to the petition were sustained and the suit dismissed.

The facts disclosed by the petition are as follows: The individual defendants constitute the Compensation Claim Board created by virtue of chapter 41, Acts of the Thirty-Seventh Legislature, First Called Session, approved September 1, 1921. Plaintiffs own a tract of irrigated farming land situate in the Rio Grande Valley in the southern portion of Presidio county upon which they began to grow cotton prior to 1917. Acting upon the report of the commissioner of agriculture of the state, and based upon the fact that the pink boll worm had been discovered in the cotton fields of Brewster and Presidio counties, the Governor on April 9, 1919, issued a proclamation creating a non-cotton growing zone embracing all of said counties, wherefore it became unlawful to plant or raise cotton in said counties, and the plaintiffs in good faith obeyed such proclamation and refrained from growing cotton in such district. On January 20, 1922, plaintiffs in due form presented to the Compensation Claim Board their claim for damages arising out of the fact that they were prevented from growing cotton upon their land, which was heard and rejected by the Board on December 19, 1922. The reason assigned for rejecting the claim as shown by the Board's order is as follows:

"The Board finds that said applicant grew cotton in the year 1919 after the proclamation of the Governor. Some he had planted before such proclamation, all of which was cultivated, and destroyed in the fall by agents of the department of agriculture. The acreage planted before the Governor's proclamation was paid for. Therefore we think he is not entitled to any compensation, because he did not in good faith obey the proclamation."

The petition averred that the Board was mistaken in the findings indicated in the quoted portion of its order and that plaintiffs did not plant or grow cotton during the year 1919, and no cotton planted or owned by them had been destroyed as found by the Board. The necessary facts were alleged showing that plaintiffs had sustained a loss of $8,000 by being prevented from growing cotton upon their land during the year 1919.

The several acts of the Legislature pertaining to the menace of the pink boll worm to the cotton growing industry of the state are as follows: Chapter 11, Acts 35th Leg 3d Called Sess., approved October 3, 1917; chapter 41, Acts 36th Leg. Reg. Sess., approved March 10, 1919, effective the same date; chapter 42, Acts 36th Leg. 3d Called Sess., approved June 19, 1920; chapter 41, Acts 37th Leg. 1st Called Sess., approved September 1, 1921. See Vernon's Ann. Civ. St. Supp. 1922, arts. 4475a-4475t.

The appellants contend that this action may be maintained under the act of 1921. Appellee asserts that neither this nor any other act provides for the assessment of compensation to persons who were prevented from growing cotton in the year 1919, by virtue of the Governor's proclamation, made under the law in question, and to construe any portion of the act of 1921 as recognizing a liability on the part of the state to pay losses sustained by persons who were prevented from growing cotton under previous acts would render unconstitutional such portion of the act.

In passing upon the question first at issue a brief résumé will be useful of the legislation relating to the pink boll worm.

The first was the act of 1917. It provided for the establishment of noncotton zones from which it would be unlawful to transport cotton or its products, except under certain conditions, and in which it would be unlawful to grow cotton. It authorized the destruction of growing cotton in infested fields. It provided for the assessment by three disinterested citizens of the value of any cotton field so destroyed, and upon their report the state comptroller should issue his warrant upon the state treasurer for the amount so assessed, which was payable out of any funds not otherwise appropriated. For any citizen who was dissatisfied with the estimate of damages thus assessed the right was given to appeal to any court of competent jurisdiction. This act made no provision for the redress of persons who were prevented from growing cotton.

The second act was that of 1919, and was in substance a re-enactment of the previous law, except as to matters of detail. While it provided for the assessment of damages for cotton destroyed, it made no provision for compensating those who had been prevented from growing cotton upon their lands.

The act of 1920 was an amplified re-enactment of the previous law with additional provisions. Unlike the two preceding acts, it for the first time recognized the right to compensation of those who had been prevented from growing cotton upon their land, and fixed the measure of their compensation upon the basis of the rental value of the land. It created the Compensation Claim Board, whose duty it should be to determine compensation due persons who had been prevented from growing cotton. For any claimant dissatisfied with the award of the Board the right of appeal was granted to any court of competent jurisdiction in Travis county. The damages of persons whose cotton had been destroyed was assessed by a citizen committee as before. The sum of $50,000 was appropriated to "be used in paying compensation and damages which may become due under the provisions of this act."

There is nothing in the act of 1920 to indicate that it was intended to have a retrospective effect, and it is not contended by appellants that it had such effect.

The act of 1921, the present law, is in many respects very similar to the law of 1920.

It provided for the noncotton and regulated zones, for the destruction of infested cotton and payment for same, for a pink boll worm committee to assist in establishing the noncotton zones. It also provided for remunerating persons who were prevented from growing cotton, and created the same kind of Compensation Claim Board as the previous law. This law did away with the citizens' committee of the previous laws, and placed the duties of that committee to determine the damages for cotton destroyed on the Compensation Claim Board. This board now has this duty in addition to its duties to determine the compensation to be allowed for being prevented from growing cotton. This act, as claimed by appellants, showed a further departure of legislative policy by making the law retrospective so as to allow those persons compensation for being prevented from growing cotton under previous acts of the Legislature — that is, under the acts which prevented them from growing, but did not at the time make any provision for remuneration.

Section 7 of this act gives the procedure of the Claim Board in fixing the damages for cotton destroyed, and requires the board to go on the ground and fix the damages before the cotton is destroyed. Section 9 gives the procedure of the Claim Board in fixing the compensation for being prevented from growing cotton, and the time, place, and manner of procedure is entirely different in each case.

Section 9 of this act (Vernon's Ann. Civ. St. Supp. 1922, art. 4475q) reads as follows:

"Sec. 9. As soon as practicable after the passage of this act the Governor shall appoint a Compensation Claim Board for the state, who shall serve until relieved therefrom by the Governor, whose duty it shall be to determine in the manner herein provided the measure of compensation due persons prevented from growing cotton and the damages sustained by persons having cotton condemned and destroyed as provided for herein. The said Board shall be composed of three citizens of the state residing outside any area under quarantine under the provisions of this act, at least two of whom are actually engaged in the production of cotton. Before entering upon their duties, the members of the Board shall take the constitutional oath of office required of officers of the state, and shall organize by electing one of its members chairman and the commissioner of agriculture shall act as ex-officio secretary. They shall have authority to administer oaths for the purpose of taking testimony. The concurrence of two members of the Board shall constitute legal action. The members of the Board shall receive as compensation the sum of five ($5.00) dollars per day and actual necessary traveling expenses when engaged in the performance of their duties. The Compensation Claim Board shall conduct a public hearing in the county or counties from which the claims for compensation have been filed, due notice of which hearing shall be given by publication in some newspaper published in or near the county or counties in which the claimant resides, not less than ten days before the date of such hearing, and by mailing from the office of the commissioner of...