Watt v. State

• Decision Date: 10 December 1930
• Docket Number: No. 3494.,3494.
• Citation: 33 S.W.2d 744
• Parties: WATT v. STATE et al.
• Court: Texas Court of Appeals

Page 744

33 S.W.2d 744

WATT v. STATE et al.

No. 3494.

Court of Civil Appeals of Texas. Amarillo.

December 10, 1930.

Rehearing Denied January 7, 1931.

Appeal from District Court, Gray County; Clifford Braly, Judge.

Suit by B. T. Watt against the State and others. Judgment for defendants, and plaintiff appeals.

Affirmed.

A. A. Ledbetter, of McLean, and R. H. Templeton, of Wellington, for appellant.

Cook, Smith & Teed and John F. Studer, all of Pampa, Robert Lee Bobbitt, Atty. Gen., and Sloan Blair, Asst. Atty. Gen., for appellees.

RANDOLPH, J.

This suit was filed by appellant in the district court of Gray county against the state of Texas, R. L. Bobbitt, R. S. Sterling, Cone Johnson, W. R. Ely, Gib Gilchrist, the highway commission of Texas, T. J. Coffey, A. A. Callahan, and C. M. Carpenter, and the plaintiff alleges in his petition that the defendants were attempting to condemn and appropriate certain lands of appellant for right of way for state highway No. 75; that said land and premises constituted appellant's resident and business homesteads; that said proceedings were being had in the county court of Gray county, and that they were illegal and void, and prayed for a temporary writ of injunction restraining the defendants and each of them, their agents and employees, from further proceedings in the county court of said county and from entering plaintiff's property and interfering with him in its use, and upon final hearing that the injunction be made perpetual.

A temporary restraining order was issued by the court, and the case was set down for hearing upon the plaintiff giving a required bond. On hearing the defendants, state of Texas, the highway commission and members thereof, and the Attorney General of Texas filed their plea in abatement of the suit as to them. This plea in abatement was sustained by the court, and as to the last named defendants the case was dismissed. Proceeding to trial as against the remaining defendants, upon hearing of the evidence the court dissolved the temporary restraining order and denied the temporary injunction. This ruling was, however, held in abeyance pending appeal, upon the giving of bond by the appellant in the sum of $2,000.

The appellant assigns error on the part of the trial court in dissolving the temporary writ of injunction theretofore granted and in denying appellant's petition for a permanent injunction upon the ground that the county court had no jurisdiction or authority to condemn the land and premises of appellant for the right of way for state highway for the following reasons, to wit:

"Chapter 186, Page 456, Acts of the 39th Legislature divested the Commissioners' Court of its authority to condemn land and materials for a State Designated Highway, and vested such authority in the Highway Commission of the State of Texas. Section 14 of said Act provides that the Highway Commission shall proceed in the same manner as near as may be that Commissioners' Courts of certain counties may condemn materials under Articles 6894 and 6895, Title 119, R. S. 1911. Reference to said articles by the 39th Legislature being fatally defective, the 41st Legislature at its Third Called Session, attempted to cure the defect by passing an amended act which referred to Articles 6984 and 6985, R. S. 1911, Title 119, in this language:

"`The Attorney General at the request of the State Highway Commission shall proceed to condemn the same for and on behalf of the State of Texas in the same manner as near as may be that Commissioners' Courts of certain counties may condemn materials under the provisions of Articles 6984 and 6985, Title 119, Revised Statutes 1911.'

"The Title of the Act of the Third Called Session of the 41st Legislature, being Chapter 10, page 243, is fatally defective, in that said Title fails to state, or refer to what Act of the Legislature said Articles were passed, or in what Revised Statutes they will be found. Said Title reads:

"`An act to correct the reference to Articles 6894 and 6895 in Section 14, Chapter 186, Acts of the 39th Legislature, and making the same refer to Articles 6984 and 6985; conferring authority on Commissioners' Courts to acquire new or wider right-of-way or land for material or borrow pits; prescribing regulations relative thereto; and declaring an emergency.'

"Articles 6984 and 6985 were omitted from the Revised Statutes of 1925 and expressly repealed by section 2 of the Final Title adopting the Revised Statutes of 1925. As Articles 6984 and 6985 had been repealed, and were only referred to by acts of 41st Legislature and were not re-enacted and published at length as provided in Article 3, Section 36, Texas Constitution, said Acts of the 41st Legislature are wholly insufficient to authorize the condemnation proceedings complained of."

It will be seen from the appellant's assignments that the complaint is: (1) There being an error by the Legislature in the reference to the articles referred to and the corrective act being an attempt to revive a repealed act, said attempt to revive was void because the caption of the reference statute failed to state the purpose of revival of the repealed act; and (2) because the act referred to, if corrected, had been repealed, and was not in force and effect at the time the reference was made.

Article 6674n, R. C. S. 1925, provides as follows:

"Whenever, in the judgment of the State Highway Commission, the use of any timber, earth, stone, gravel, or other material, convenient to any road being constructed or maintained under the provisions of this Act will facilitate such construction or maintenance or whenever in the judgment of said commission it is necessary or expedient to construct or reconstruct any such road over a new or wider right of way, the State Highway Commission shall have the right to use any such materials most convenient to such roads and to acquire such land or lands for the public use and benefit as may be necessary for the new or wider right of way. In such cases the owner of such materials or land shall be paid therefor out of the State Highway Fund. Provided, that should the owner of such land or materials and the State Highway Commission fail to agree upon the amount to be paid therefor, then the Attorney General at the request of the State Highway Commission shall proceed to condemn the same for and on behalf of the State of Texas in the same manner as near as may be that commissioners' courts of certain counties may condemn materials under the provisions of Articles 6894 and 6895, Title 119, Revised Statutes, 1911, such condemnation proceedings to be held in the county in which such material or land so to be condemned may be situated. The highway commission's portion of the expense of such proceedings shall be paid out of the State Highway Fund. [Inserted by compiler from Acts 1925, 39th Leg. ch. 186, p. 458, § 14.]"

It is not necessary, however, for us to pass upon the question of whether or not articles 6984 and 6985 had been repealed and were not in effect at the time the reference was made to them in article 6674n, and it is not necessary for us to discuss the question of the mistake of the Legislature in referring to those articles for the following reasons: The rule has been laid down that, where a general power has been conferred by the Constitution, or a duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. Judge Cooley states the rule to be:

"The implications from the provisions of a constitution are sometimes exceedingly important, and have large influence upon its construction. In regard to the Constitution of the United States the rule has been laid down, that where a general power is conferred or duty enjoined, every particular power necessary for the exercise of the one or the performance of the other is also conferred. The same rule has been applied to the State constitution, with an important modification, by the Supreme Court of Illinois. `That other powers than those expressly granted may be, and often are conferred by implication, is too well settled to be doubted. Under every constitution the doctrine of implication must be resorted to, in order to carry out the general grants of power. A constitution cannot from its very nature enter into a minute specification of all the minor powers naturally and obviously included in it and flowing from the great and important ones which are expressly granted. It is therefore established as a general rule, that when a constitution gives a general power, or enjoins a duty, it also gives, by implication, every particular power necessary for the exercise of the one or the performance of the other. The implication under this rule, however, must be a necessary, not a conjectural or argumentative one. And it is further modified by another rule, that where the means for the exercise of a granted power are given, no other or different means can be implied, as being more effectual or convenient.' The rule applies to the exercise of power by all departments and all officers, and will be touched upon incidentally hereafter." Cooley's Constitutional Limitations (8th Ed.) (Carrington) vol. 1, p. 138.

This being true, it necessarily followed that, the state having been granted the general power to condemn by the Constitution, the procedure to be followed in condemnation proceedings generally will or can be followed in condemning land for public use, and the questions raised by appellant in the foregoing assignment become immaterial. Section 17, art. 1, of the Constitution of Texas, recognizes the right of the state to condemn for its uses.

Article 3264 of the Revised Civil Statutes of Texas 1925 provides as follows, in part:

"The exercise of the right of eminent domain shall in all cases be governed by the following rules:

"1. When real estate is desired for public use by the State or by a county, or a political subdivision of a...