National Biscuit Co. v. State, 8779.

• Decision Date: 18 January 1939
• Docket Number: No. 8779.,8779.
• Citation: 129 S.W.2d 494
• Parties: NATIONAL BISCUIT CO. v. STATE.
• Court: Texas Court of Appeals

Page 494

129 S.W.2d 494

NATIONAL BISCUIT CO. v. STATE.

No. 8779.

Court of Civil Appeals of Texas. Austin.

January 18, 1939.

Rehearing Denied May 31, 1939.

Appeal from District Court, Travis County; Few Brewster, Judge.

Suit by the National Biscuit Company against the State of Texas to recover filing fees paid by plaintiff to the Secretary of State in 1909 and franchise taxes paid by plaintiff from 1907 to 1917 on the ground that the law under which payments were made was unconstitutional. From a judgment for the defendant, plaintiff appeals, and the defendant assigns cross-error.

Affirmed.

Baker, Botts, Andrews & Wharton and Sidney Benbow, all of Houston, for appellant.

Wm. McCraw, Atty. Gen., and John J. McKay and Charles N. Avery, Jr., Asst. Attys. Gen., for the State.

BAUGH, Justice.

The National Biscuit Company, a foreign corporation with a permit to do business in Texas, brought this suit against the State under authority of a concurrent resolution passed by the Legislature in May, 1937, granting it permission to do so. Suit is to recover filing fees paid by appellant to the Secretary of State in 1909, and franchise taxes paid by it annually from 1907 to 1917, on the ground that the law under which these exactions were made was unconstitutional and was so adjudged by the Supreme Court in Looney v. Crane Co., 245 U.S. 178, 38 S.Ct. 85, 62 L.Ed. 230. Trial was to the court and judgment rendered in favor of the State, hence this appeal. The special exceptions of the State to the plaintiff's petition setting up the invalidity of the concurrent resolution under which the suit was brought, and pleas of laches and limitation, were overruled by the court, and the State cross assigns error as to these.

The appellant's contentions may be briefly summarized as follows:

1. That because of the heavy self-executing penalties provided in the statutes involved for failure to pay such fees and taxes, the moneys sought to be recovered, were paid involuntarily and under duress, and the tax payer therefore entitled to recover them.

2. That the only method of relief the appellant had was and is a suit against the State to recover such funds, which could not be brought until the State gave its consent to be sued.

3. That limitation should not begin to run against appellant until such consent was given.

4. That the resolution, granting that permission to appellant herein was valid.

The suit authorized by Senate Concurrent Resolution No. 63, (Gen. and Special Laws, 45th Leg., Reg.Sess., p. 1549) is a suit against the State. It was brought with the consent of the State duly granted. The first question presented, therefore, is whether such consent of the Legislature was so obtained by a valid resolution. The State here contends, as in the trial court, that the resolution in question was invalid because 1. It contained no title and was therefore in violation of Art. 3, Sec. 38 of the Constitution of Texas, Vernon's Ann.St.; 2. That it violated Art. 3, Sec. 35, of the State Constitution, because it contained more than one subject; and 3. That it was invalid because it undertook to appropriate money out of the Treasury by resolution and not by law.

The only caption on the face of the resolution was, "Senate Concurrent Resolution No. 63. By Stone." Following this it was recited under several paragraphs, that appellant had paid fees and taxes from 1907 to 1917, under laws declared unconstitutional; that no law authorized return of such moneys to appellant; that no machinery existed to determine what amount should be returned; that the Legislature had from time to time permitted such foreign corporations which had paid such taxes to recover same. Then followed the usual resolving clause granting appellant permission to sue the State in Travis County to determine the amount of the taxes illegally paid and further providing, "and there is hereby appropriated out of the Treasury such funds as may be necessary not heretofore appropriated to pay any final judgment which may be obtained by reason of the permission to sue the State of Texas herein granted," etc.

On the back of this resolution was endorsed: "S. C. R. No. 63 By: Stone Granting National Biscuit Company permission to bring suit against the State of Texas." Underneath this endorsement were further endorsements duly authenticated showing the courses of action taken by the Senate and the House on the resolution, and showing that it took the same course in the Legislature as a bill. It is the contention of the Attorney General that in view of the provisions of Art. 3, Sec. 38, that the presiding officer of the House and Senate shall "sign all bills and joint resolutions passed by the Legislature, after their titles have been publicly read before signing," a title is required for joint resolutions the same as for bills.

It has long since been settled that bills must contain the enacting clause prescribed in Sec. 29, of Art. 3 of the Constitution, have adequate titles, and contain but one subject. Vernon's Ann.St. Const. Sec. 35, Art. 3. Nowhere, however, do we find any express provision in the Constitution requiring that resolutions have titles. While joint resolutions, requiring the action of both houses thereon, and of the Governor, follow the same course in their passage as bills generally, Const. Art. 4, Sec. 15; and in some instances may have the force and effect of a law, they are not necessarily to be treated as laws. Mosheim v. Rollins, Tex.Civ.App., 79 S.W.2d 672, writ dismissed. The Constitution itself places bills and resolutions in separate and distinct categories. Sec. 34, Art. 3; State v. Delesdenier, 7 Tex. 76, 94; Conley v. Texas Division of United Daughters of the Confederacy, Tex.Civ.App., 164 S.W. 24, 26; 39 Tex.Jur., Sec. 4, p. 12. Sec. 30, Art. 3, provides that: "No law shall be passed, except by bill," etc. Manifestly the enacting clause required for "all laws" could not apply to such resolution.

The purpose of the caption to a bill is to inform the public of the nature, character and content of the legislation proposed, and the members themselves; and to prevent inclusion in the body of the act, surreptitiously or otherwise, of matters not shown in the title, which, if shown, might not receive the support of the legislators. In brief, to put the public and the members of the Legislature on notice, by the title, what the act proposes to do. If it does that sufficiently it meets the constitutional requirements; otherwise it does not.

In the instant case, no title to the resolution being expressly required, if it contained as a part thereof adequate notice to the members of the Legislature and to the public of its character and content, and this was imparted to them in its consideration and passage, that was sufficient, we think, to comply with the spirit and purposes of the Constitution, as implied in Sec. 38 of Art. 3. The official endorsement on the resolution, which should be considered for this purpose was, "Granting National Biscuit Company permission to bring suit against the State of Texas." This was undoubtedly the "title" read to the Legislature in its consideration, passage, and signature by the presiding officers of the respective houses of the Legislature, and was sufficient to meet the requirement of Sec. 38, Art. 3, in so far as granting the consent of the State to be sued was concerned. By resolution is the proper method of granting such consent. State v. Isbell, 127 Tex. 399, 94 S.W.2d 423.

However, a different situation is presented with reference to that portion of the resolution undertaking to make an appropriation of moneys out of the Treasury. While such purported appropriation was made contingent upon recovery of a judgment, and was not an acknowledgment of any liability on the part of the State, it was, we think, invalid. The endorsement on the resolution, considered in lieu of a title, nowhere mentions an appropriation of money. There was nothing in said endorsement to show such purpose. A mere consent to sue the State, and an appropriation of money to pay a judgment are distinct and separate subjects; and if the rules applicable to bills be applied, the act is condemned by the provisions of Art. 3, Sec. 35 of the Constitution. Consent to sue the State admits no liability for the sum sued for. Brooks v. State, Tex.Civ. App., 68 S.W.2d 534, writ refused. An appropriation to pay, if unequivocal, is manifestly an admission of liability. While contingent in the instant case, we think it was so distinct from the consent given to sue, that it should at least have been embodied in the endorsement, on the resolution, serving the purpose of a caption, so as to apprize those interested of the purposes and content of the resolution itself.

The attempted appropriation would also appear to contravene Sec. 6 of Art. 8 of the Constitution, Vernon's Ann.St., providing that "No money shall be drawn from the Treasury but in pursuance of specific appropriations made by law;" etc. While this provision was designed to safeguard moneys properly placed in the State Treasury from being unlawfully withdrawn therefrom; it also discloses a purpose of the framers of the Constitution to require that appropriations made by the Legislature be made specific, and that they be made by law. A mere attempted appropriation which names no sum, prescribes no limit as to amount, by resolution and not by law, manifestly does not meet the requirement.

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