Westbrook v. Missouri-Texas Land & Irrigation Co.

• Citation: 195 S.W. 1154
• Decision Date: 02 May 1917
• Docket Number: (No. 5784.)<SMALL><SUP>*</SUP></SMALL&gt
• Parties: WESTBROOK v. MISSOURI-TEXAS LAND & IRRIGATION CO.
• Court: Texas Court of Appeals

195 S.W. 1154

WESTBROOK v. MISSOURI-TEXAS LAND & IRRIGATION CO.

(No. 5784.)^*

Court of Civil Appeals of Texas. Austin.

May 2, 1917.

On Motion for Rehearing, June 6, 1917.

Appeal from District Court, Travis County; George Calhoun, Judge.

Suit by the Missouri-Texas Land & Irrigation Company against Theodore Westbrook, wherein defendant filed a cross-bill. Judgment for plaintiff, and defendant appeals. Reformed and affirmed. On motion for rehearing. Motion overruled.

Gregg & Love, of Austin, for appellant. White, Cartledge & Wilcox, of Austin, for appellee. Findings of Fact.

JENKINS, J.

On January 20, 1911, the appellee was chartered, said charter reciting that the company was formed under article 3125, Revised Statutes 1895. This article is a part of the general irrigation law of 1895. At some time subsequent to the issuance of its charter, and prior to the trial of this cause (March 17, 1916), appellee purchased 60,000 acres of land, and subdivided the same into tracts of 40 acres and multiples thereof, and placed the same upon the market. On September 18, 1915, appellee sold appellant 160 acres of this land for a consideration of $2,000 cash, and the promissory notes herein sued on, secured by a vendor's lien on said land. At the time of such sale there was only 40 acres of said 160 acres in cultivation, but appellee agreed, as a part of the consideration, to put 60 additional acres in cultivation, and to cultivate 100 acres of said tract, and to deliver the same to appellant the next year. Appellee cleared and put in cultivation only 20 additional acres of said tract. The cost of clearing and putting in cultivation the additional 40 acres would have been $15.50 an acre, or a total of $620.

Appellant resisted payment of the note sued on, and by cross-bill asked to rescind the contract, and to recover the $2,000 cash paid, upon the ground that the act of appellee in attempting to acquire the said 60,000 acres of land was ultra vires. Judgment was rendered for appellee for the amount of said notes, less interest on the $2,000 for one year, which appellee had agreed to pay in consideration of retaining possession of the land sold, and also for 10 per cent. attorney's fees, and for foreclosure of the vendor's lien.

Opinion.

The act of 1893, which is carried forward in Revised Statutes 1911 as articles 1177 and 1178, forbade the acquisition of land by corporations whose main purpose was to acquire land; and provided that lands theretofore acquired by such corporations should be alienated within 15 years from the passage of said act, except as to so much as was necessary for the use of the corporation in carrying out the purposes for which it was created. The act of 1895 (Acts 24th Leg. c. 21) § 19, carried forward in Revised Statutes of 1895 as article 3131, and which relates specifically to the incorporation of irrigation companies, permitted such companies to acquire land.

In 1897, General Laws, p. 48, there was passed an act to amend article 749c, c. 18, tit. 21. Article 749c was the act of 1893 above referred to. The act of 1897 forbade the acquisition of lands by corporations whose main purpose was the acquisition of land. Section 1 of the act of 1897 provides that all private corporations authorized by the laws of Texas, as provided in article 642, whose main purpose is the acquisition of land, shall alienate such as had theretofore been acquired, in 15 years from the passage of said act; and further provides that no private corporation shall be permitted to purchase any land "under the provisions of this and the preceding articles, unless * * * necessary" for its corporate purpose, or to secure debt; and further provided that same should not apply to lands located in towns, or within two miles thereof, whether incorporated or not.

Article 642, referred to in this act, is the general incorporation act which permits, among other things (section 23), the incorporation of irrigation companies. "The preceding articles" of this title relate to corporations generally.

The issue herein presented is, Did the act of 1897 repeal the act of 1895, § 19 (article 3131, Revised Statutes 1895)? It will be seen from the foregoing statement that the act of 1893 related to corporations generally, as did also the act of 1897, and that the act of 1895 related specifically to irrigation companies, and undertook to regulate the whole matter of irrigation in this state. The act of 1897 made no specific reference to the act of 1895, and, if said act was repealed, the same was done by implication. Repeal by implication is not favored in law. Herndon v. Reed, 82 Tex. 651, 18 S. W. 665; Less v. Ghio, 92 Tex. 651, 51 S. W. 502; Hanrick v. Hanrick, 54 Tex. 107; Neil v. Keese, 5 Tex. 23, 51 Am. Dec. 746; Selman v. Wolfe, 27 Tex. 72; Napier v. Hodges, 31 Tex. 287; Kinney v. Zimpleman, 36 Tex. 554; 8 Cyc. 748, note 37, and authorities there cited; State v. Massey, 103 N. C. 356, 9 S. E. 632, 4 L. R. A. 309, note and authorities there cited.

In Adams Express Co. v. Lexington, 83 Ky. 657, the court said that, in order for one act to repeal another by implication, they must be absolutely irreconcilable, or there must be sufficient reason to conclude that the Legislature so intended.

The acts of 1897 and 1895 are not irreconcilable. When read together as one act, they provide that corporations whose main purpose is the acquisition of land shall not be permitted to acquire land, but that this shall not include corporations organized for the purpose of irrigation.

It is also a well-recognized principle that a general law will not be construed to repeal a special law on the same subject. Ellis v. Batts, 26 Tex. 703, Laredo v. Martin, 52 Tex. 561. The act of 1897 was a general law with reference to the acquisition of land by corporations, but the act of 1895 was a special law with reference to the acquisition of land by irrigation corporations.

This case was tried before the court without a jury, and findings of fact and conclusions of law were filed by the court. The court found, among other things, that the acquisition of the 60,000 acres of land was necessary for the corporate purposes of appellee. Appellant, asserting that this finding is unsupported by the evidence, cites only the facts that the appellee purchased the 60,000 acres of land and subdivided the same, and placed it upon the market for sale, and prior to the trial hereof had not erected any irrigation works. These facts do not show as a matter of law that the finding of the court is unsupported by the evidence. But without reference to this finding of the court, which is sufficient to sustain the judgment of the court upon the issue of ultra vires, we think said judgment must be sustained upon the proposition that the statutes of this state authorized the appellee to purchase said land. Appellant contends that we ought not to so hold, for the reason that the acquisition of large bodies of land by corporations is contrary to the public policy of this state. The public policy of the state is to be ascertained from the enactments of its Legislature, and, as above stated, the Legislature of this state, in 1895, expressly authorized irrigation companies to acquire land without placing any limit on the amount so acquired. See article 3131, Revised Statutes of 1895. This article was reenacted by the Legislature of this state in 1913. General Laws, page 358.

The trial court concluded as a matter of law that there was no pleading or evidence which would authorize the court to allow damage for failure to grub the 40 acres of land which appellee had agreed to clear and place in cultivation. App...