*1 jurisdic- selling holding of its the matter of the on penalty of to recover tion trial license of the court. a having obtained liquor without court, justice in the After a trial therefor. necessary that It therefore becomes court, district to the appeal taken an we the Court of judgment reverse point supreme court. One and then to it Appeals cause to remand this and court justice assigned was of error may pass points order that on the case. to hear jurisdiction without error appellant raised in that court. held court This was sustained granted is rehearing Petitioner’s motion for having only court was the court district and our former aside. The is set the suit jurisdiction $100.00. original Appeals of the is Court Civil the then provision of The court cited and cause reversed remanded to that juris court the district giving Constitution court for its action consistent with this State of the suits behalf all diction “of opinion. es- and penalties, forfeitures to recover cheats.” occupation business other regards and

As taxes, said: the court special

and impositions place,

“In first oc- make and

failure to returns business

cupation taxes and other be- special from the have been taxes Petitioner, Jimmy MYERS, B. present penalties, time to the ginning v. such, named sometimes sometimes COAST MINERALS GULF MANAGEMENT fines, as forfeitures or referred to CORPORATION, Respondent. * ** plainly penalties all but so No. A-8994. analysis discus- an that we deem ”* * * unnecessary. laws sion of the Supreme Court of Texas. Idem, top p. 134 of bot. Oct. 1962. (Court’s emphasis). S.W.2d. Rehearing Denied Oct. Compensation Unemployment “con- The taxes. tributions” have been held be State Co., Surety

Friedman American Tex. Williams, supra, The de- case Jones penalty and

cides that the interest added to

delinquent taxes is incident of the

taxes, separate but is distinct item

provided by Legislature punish- as a taxes, to pay prior failure de-

linquency, “penalty” and therefore a with- meaning of

in the the Constitution. It fol- properly brought

lows that this suit was County, district of Travis Tex-

as. complained

There other error appellant court. had other com-

plaints Court Civil passed

were not on that court in view

Nye, Morris, Corpus Christi, Cohn & petitioner. King, Porter, Corpus & Christi, Anderson respondent. SMITH, Justice.

In September, and Gulf contract, entered into a commonly referred to as a farmout or letter agreement. Myers alleged, suit, September 28, 1960, on he offered Gulf title, Coast certain rights, interest and to a certain oil and leasehold es- specified on tate terms and conditions in writing, accepted and that Gulf Coast paid offer and the sum of immedi- $500.00 ately upon acceptance of the terms and of-the but failed com- ply with the by pay- terms the contract ing additional sum of within days acceptance the date of operations, commencement sooner, whichever was Hence, contract. this suit to recover of and from $2000.00, Gulf Coast the sum of with interest at per the rate of annum 6% paid. from November 1960 until On January 16, 1961, Gulf Coast filed gen- denial prayed eral take nothing by his suit. February 7,

On 1961 Gulf Coast filed its summary motion based the contention that there genuine no any issue material fact and that was entitled to as a matter of pleadings law on file and a letter parties. between the A copy of letter was attached to the summary judgment. motion for On Feb- ruary filed an affiadvit copy awith of the letter agreement at- tached, 24, 1961, and on March in a motion summary judgment, alleged there l,2 2,3 6,4 any and we are material ative as to genuine issue directly concerned with the he was entitled case fact paragraphs, these introduc including the judgment as a matter of law. *3 tory paragraphs, the true determining in 9, granted May 1961 the trial On meaning of the contract. summary judgment, Myers’ for motion the The Court held that of Civil has recites that judgment and the entered the opposing words earn” found in the recital pleadings, court found the portion per agreement were at of the farmout agreement, affidavits the letter and court, compulsive. motions, missive rather showed than tached as an exhibit to both apparently any having para made recital issue to the any genuine as absence of graph operative para summary controlling over the judgment material fact and that graphs agreement, of on to hold Myers a matter the went be rendered as should for summary agreement for meant that Gulf Coast of law. Coast’s motion Gulf could either Appeal, gain or lose them judgment was On overruled. willed, citing the State v. cases of trial court’s in favor of 450, Clements, Tex.Civ.App., for and interest at the rate of 6% (1958), ref., Zoning wr. and Board per re Kleck annum 1960 was from November Adjustment Antonio, of of San Tex.Civ. versed was rendered and App., suit, (1958), ref., sus in nothing take his thus wr. support summary holding. of taining for Coast’s motion Gulf 944. judgment. Tex.Civ.App., 354 S.W.2d Clements, In the supra, case of State v. upon the court was called to construe a 1956 judg- concluded sustain the have to amendment the Texas to Constitution. The ment of the trial court the reasons now amendment added Section 51-c to Article to be stated. III, Ann.St., Vernon’s and The farmout an in Legislature contains may grant compensa- aid and being recital troductory paragraph,1 any person tion to who had theretofore oper and numbered portion prison a paid of a fine or served sentence in 2. “D well from the tional Management vations whichever ance with commence earn cepted, “Gulf inafter ceptance der commenced, tions, and evidence “2) “This letter ¡¡5500.00 to that certain Within Gulf certain Coast”, sum hereafter described, accordance and between Gulf wit: date Coast is the sooner. drilling operations when this rights, when Corp., understanding Jimmy following and $2,000.00 days agreement; agrees contained, agrees hereinafter this subject leasehold Jimmy accepted with the terms title from whereinafter B. Gulf Coast terms and condi- to move in and within and operations Coast Minerals B. September 27, to the reser- all in and estate, by you and Myers, interest provided, the addi- the sum accord- a test agree- is ac- called here- days may will are un- ac- in 4.“6) Management Corp. Thousand Emil Myers, Lessee, prosecuted hereinabove lease, unless expense agrees be conducted prudent satisfactory described are as, to-wit: hereinafter obtain eral agreement. and amendment a well in found terms lease, In consideration Pillaek, all of as amended paying oil operator of land capable and/or assign Seven Hundred Feet dated thereof, described * set out Such Gulf a lesser compliance et quantities, at in a minimum ^[*] ux, September covering Jim Wells gas Coast Minerals to Gulf drilling Coast would do and shall *” terms a as a made a attached hereto and Lessor, producing copy in sole depth. oil, gas oil, paying quantities Jimmy Myers in an effort fcy operations reasonable risk, cost, of which lease depth gas, County, part and completion oil provisions Jimmy B. following and min full and (5,7000 mineral of and/or Tex shall Five this and and B. be to in both Clem- followed the court an offense under the laws State ents and Kleck cases correct The court guilty. which he not the instruments un- “may” as struction was made of simply that the word determined Amendment, The result reached der consideration. first used the Constitutional cases, necessarily however, does not those connection with and as later used in mean that the same result should obtain amendment, per- word “deem” obviously The courts are to ascertain and that case. missive Kleck, parties, and the the real intention self-executing. amendment was very case, inquiry dictates nature of supra, zoning ordinance was a *4 case, rule, every there can be a munici- no fixed holding being that where measure, great upon in a its own depends pal zoning provided that noncom- ordinance instrument, facts, permitted”, the context the “may be of parking mercial lots elementary that if permissive circumstances. It is “may” merely the word was of ambiguity, there construction Adjustment had the is no the Zoning the Board of law question or the written granting instrument is a right use in to its discretion Montgomery, for the court. See Turner v. applications for noncommercial denying 815; Tex.Com.App., limita- North permits, subject the S.W. parking lot to 483; North, Tex.Civ.App., out in tions, set 2 S.W.2d conditions, and restrictions Payne, Brown the Tex. holding refuted This the ordinance. 306, 308. applicant a noncom- contention of the the permit where parking lot that mercial Appeals has stated The Court of Civil noncom- parking lots for ordinance said the not com- “may that term earn” was it “may permitted” be parking mercial pulsive, permissive, and but instead was rejecting permitted”. In meant “must be upon premise, court has held based that that adopt contention, that to the court said this pay duty to that Gulf Coast under that the theory be to hold Kleck’s would “ * * * $2000.00, and that the in the discretion Zoning Board had no willed, to gave power, tract it the if it so proper application grant a matter, but must payment make and commence that right. as a matter thereby gain rights stated in effect, held In the court has

contract.” by refusing that It is be noted to to no more than that the contract amounts each in application Coast, writ error the ob- option permitting Gulf cases, opin adopted the this court farmout, things, these to do certain tainer of approval its Our ion in each case as own. farmout the terms of the but that under However, we required cases still stands. of these was not agreement, Coast Gulf Court holding upholds follow the holding decline to anything. do to in holdings those Appeals only that the of Civil of Gulf Coast contention that question we are cases are decisive of that Gulf Coast could earn agreement was by appeal. listed, decide this complied to with the conditions called it if say $2,- rules by pay sum of not mean this do and that the failure listed, 000.00, contracts which rendered of written second condition of construction ap applicable agreement here were not void and ineffectual farmout we consider case, present In the was concerned. With plied in those as Coast cases. as far Gulf rule agree. the universal governed be cannot we are to this we instrument, such that an jurisdiction here, involved as farmout that the Court contends entirety and that no viewed its must be “may construing the term sentence, when con clause portion, or single in the recital or introduc contained earn” have no the farmout tory paragraph will control. We alone sidered of definitions adopted limited choice from implicitly rule was but doubt part estate by the of the leasehold meant the one which to determine if flowing were The consideration obtained. statement evidenced as compulsive, such valu- Gulf Coast to not “may the term earn” was was, first, payment acquired ar- able permissive. but instead $500.00, fur- promise pay equally can gues that the term earn” noted competency, ther sum It be express should $2000.00. say that paragraph or contin- numbered does ability, possibilty, probability says pay Addi- It Dictionary, may 3rd gency, Black’s $2000.00. Law pay and Gulf tion, permission, agrees Coast p. well either language is no premise, that when There $2000.00. such contends he or introductory paragraph “may earn”, farm- recital or the term as used operative farm- showing pos- in the out defined as keep- sibility out can be construed contingency, is more give will. right than the ing parties intent of the express por- operative permissiveness language the The definition of found *5 tion clear that agree. The contract makes it Appeals. Court of Civil by “may adopted parties that was not intention definition of of the earn” pay- courts in Gulf Coast at will “make that court violates the rule that could $2,000.00 drilling” construing and coimience contracts are determine parties rights gain intention of the the contract stated "thereby The term adopt [Emphasis as a whole and that definition contract.” then added.] “may earn”, which is most such intent used in the contract consistent with sense, ditional or not ren- questioned contingent and will render term har- did to, with, repugnant obligation der conditional monious rather than $2,000.00. “at used provisions contract. See The words will” the other any- Appeals are Ashcroft, 175 the Court of Civil not used 141 Tex. S.W. Fleming v. agreement. Oper- 401; Corporation v. where in farmout 2d General Insurance 5 only ative numbered Laney, Tex.Civ.App., paragraph is the 6 whereby Kennedy, hist.; paragraph containing language no Little (1949), wr. obligated assign- to make an Tex.Civ.App., (1946), wr. lease, gas ment of an interest in the oil and ref. n. r. e. making language but it no contains para introductory provided The recital payments or in numbered “may graph, which the term earn” paragraph contains 1 and the commencement operative para- should be reconciled with the numbered possible. effect, given clauses and so far as graph thereby gain would 314, p. but the rights Contracts stated in the The farm- contract. § C.J.S. primary duty construing of the courts in its en- out when considered effectuate, tirety contracts is if recognized right to ascertain of Gulf parties possible, speculative assignment the mutual intention an time con contingent of the execution of the in that it was further condi- By giving “may upon production gas the term earn” the oil tract. tioned and/or outlined, paying quantities. we heretofore find that minerals In and other unambiguous operative construction of the words, other under our including provide Myers by the definition clearly farm- our farmout earn”, agreement granted ob- out Gulf Coast cer term Coast was Myers the full considera- explore pay to ligated tain valuable and drill though $2,500.00 drilling op- even right for oil and further tion resulted in due assignment of erations later receive from Supreme discusses a collection of Court cases. This case geological physical to-the existence control beyond

circumstances the will and

of either Gulf Coast. Ap- Civil of the Court of

peals the trial is reversed and that of

affirmed.

GRIFFIN, (dissenting). Justice

I agree opinion the Court Appeals. Petitioner, COUNTY,

DENTON *6 BRAMMER, ux., Respondents. Jr., et

H.G. A-8744.

No.

Supreme of Texas. Court

July 18, 1962. Opinion

Concurring Oct.

Rehearing Denied Oct.