Pension Board of the Police Officers Pension System v. Colson
492 S.W.2d 307
Tex. App.
1973
Check Treatment

*1 placed their After already have distributors. See Sherrard v. which been sold Hours, Inc., supra, and Air Dis- commerce. Climatic tributors of Texas v. Climatic Air South an article protected owner of Sales, Inc., supra. trade-mark, patent, copyright, when same, he has Reversed remanded. and sold manufactured impose cannot his restrictions same, vendee as the future sale of parted his owner [hjaving [since] therein,

ship it enters the channels of

trade as an article of and is commerce beyond

thereafter his control.” Coca- State, Co.

Cola et al. v. 225 S.W. 791 (Tex.Civ.App. —Beaumont PENSION OF the POLICE OFFI- BOARD writ). (Emphasis added.) CERS the CITY PENSION SYSTEM OF HOUSTON, Texas, Appellant, OF McAninch, Patrizi v. royalty was a suit for payments patented on a machine. The sell- COLSON, Appellee. Alice B. agreed er had not to sell lease like No. 7454. anyone machine to else in a certain territo- Appeals Texas, Court of Civil ry period in Texas years for a Beaumont. buyer agreed period had for not that anyone sell or lease the machine to else Feb. 1973. patentee.

without consent of the The Tex- Rehearing Denied March Supreme provi- Court held that these sions violated Texas laws. antitrust appellant’s

We find no merit point, is that

sixth which the “court erred granting appellees’ summary motion

judgment because the title to the units in pass appellee did it not because paid for

had not been and therefore right impose

appellant have would

restrictive conditions.” Harris,

Appellant’s president, George A. deposition

admitted in all transac-

tions were treated as sales on the date of final,

shipment all sales and that support appellant’s

the record not does point.

contentions in this See Morris v.

Case, (Tex.Civ.App.1967, ref., n.r.e.).

writ last error is

Appellant’s point of apply be

that Texas anti-trust laws do competition parties were not in

cause statutes Texas Anti-trust

with each other. suppliers and

apply to contracts between

years prior to his in retirement 1959. He eligible was for benefits under the law from the pay- fund and such ments begun in 1959 and continued throughout the Aft- remainder of his life. retirement, er his plaintiff he married the (our par- below in appellee) ties together continued as man and to live wife until Mr. died in Imme- Colson death, diately after his Colson made Mrs. application Board for the to the Pension pension she to be due her as the claimed surviving spouse Lee Colson. Otis application appealed was denied and she County. the District Harris Court of practical purposes, the For all case facts, agreed tried an statement of Mrs. Colson was entered for against from which the Pension Board perfected appeal. it has duly Appellant large part of devotes substantial brief to a discussion of the reminding us procedure, evidence rule if sub only duty that our is to determine supported stantial the order of de evidence authority nial and to review that we lack rec sufficiency the evidence. We review. ognize governing our rule Board of Relief Retirement Firemen’s & Marks, 433, 242 F. Tr. 181, 183, (1951), 27 A.L.R.2d 965 long line of cases which has followed. However, only question presented by Olson, City Atty., Wm. A. F. law, William interpretation this record is one of Colburn, Levin, Alan City Attys., F. Asst. judicial of a This is a function statute. Houston, appellant. for jurisdiction. and one within properly our Delhi-Taylor Corp., Gregg v. Oil Knipp Sedgeley, Houston, appel- & for lee. question of court was concerned with the primary jurisdiction of administrative KEITH, and, agencies; although Justice. are not con- we lan- specific problem, cerned with that appeal The question involves guage there used is to our case: statute, 6243g 1, of a Art. §— Ann.Civ.St., 13(a), and an Vernon’s abbre- presented primarily questions viated statement of suffice the facts will issue is judicial nature. Where the place dispute in focus. inherently we judicial (as nature policeman question trespass think is), Otis Lee Colson was a em- ployed City many jurisdiction Houston courts are ousted from Board’s A court review a rule. a valid Legislature, by unless an ordi interpretation of jurisdic- construction exclusive explicitly granted or statute.” body. The nance administrative tion attempted to do Legislature has not amplified v. Unit rule was State as to the here, have no we Company, Bonding ed 450 S.W. Insurance *3 delegation.” constitutionality such a of 1970, Austin, no (Tex.Civ.App., 2d 689, 692 writ) : been extend rule established has The See, trespass. other than ed to situations may agency “An use administrative Petroleum g., Foree Crown Central e. v. interpreting applicable an discretion in 312, (Tex. 316 Corporation, 431 S.W.2d by the are not bound but courts Harrington, 407 and v. S.W. 1968); State construction, may re- such administrative 467, (Tex. 1966).

2d 474 by interpretation at the the arrived view may wrong, legally and if found

agency, powers of over- judicial determination the exercise of Administrative are, administratively generally speaking, questions of turn law the construction judicial applied.” the court subject to and review to

may as the judgment substitute its own the being disputed There facts Refining law. Brown Humble & v. Oil interpretation being of the involved statute 935, 944-945, Co., 296, court, jurisdiction within this we the 99 A.L.R. 1107 opinion appellant are of Board the the that legally wrong interpretation was in its Underwood, Adjustment Board In v. thereof and the trial court’s 583, (Tex.Civ.App., 332 S.W.2d 585-586 correct; hence, judg- was affirm the we 1960, Antonio, e.), r. the n. San ref. ment. specific ques- to court itself the addressed case, saying: tion which we have this are particular The section with which we appeared original concerned as 12 of the § is not the substantial evidence rule substance, provided, Act when that point in point the in this case case. a member “shall . . . and shall die construing interpreting is one of the leave said surviving a widow . . . Occupa ordinance definition of ‘Home paid monthly Board shall order a allow- tions.’ a of law. Asso 1947, ance . Acts . . To the widow.” Indemnity Corp. ciated Drill v. Oil Well 124, 76, 1967, p. the Leg., 50th ch. 12. In § Co., 523; ing Tex.Civ.App., 258 S.W.2d provi- foregoing Act was amended the Stovall, Board of Adjustment Tex. incorporated sions into 13§ Civ.App., a Faced with 218 S.W.2d 286. present 6243g 1, as Art. statute codified §— decision, an board administrative 13(a),1 pertinent provisions of which exercise its or administrative read follows: interpreting discretion in an courts, however, are not any police department law. The “If member of the by bound an construction administrative who has retired on allowance because Stark, length Brannan v. 87 U.S. law. . . . from of service dies 871; App.D.C. 388, any 185 F.2d Social Se he cause . . after whatsoever . 358, Nierotko, curity 327 U.S. Board v. or become allowance entitled 368, 637, surviving 718. The a S.Ct. L.Ed. . . . and leaves problem interpreting spouse an ordinance to whom member was married problem, statute a though prior is also a law to his death retirement . problem different from law paid monthly shall al- Board order presented by spouse evidence the substantial lowance ... statutory references, appears 1. All other than to the in Vernon’s Annotated Civil Stat laws, session codification which utes. ” 1967, p. Leg.,

. 60th of deceased members is limited this lan- Acts 528, guage: resulting ch. “No 1. from § marriage subsequent re- to the date of the essence, conten it is the Board’s tirement of said member shall entitled be a wid became tion that since Mrs. Colson 6243f, to a under this Act.” Art. § Colson, the only upon the death of Mr. ow part origi- language 11. This of the was amendment language nal appli- enactment when statute was phrase operative which could be population cable to cities in a bracket of prior married “to whom the member was 200,000 293,000. Leg., Acts 47th Colson, to his . retirement.” Mrs. p. ch. § hand, says amend on the other impressed areWe with Board’s ar- Board to requires ment is clear and gument require which would sur- drastic mar grant she was her allowance since *4 upon gery prelimi- the statute. note We or “prior ried to the to his death member narily Peters, that in 224 Davis v. S.W.2d us party favors retirement.”2 Neither 490, Eastland, 1949, (Tex.Civ.App., 493 no in deter point precisely authorities writ), the concluded that a similar court mining dispute. the Act, 6243f, liberally Art. to con- be strued, saying: survey A articles pension some of the adopted Legislature indicates that the purpose provide “The of the Act is to a upon rights the of a varying restrictions pension plan type city for the em- only widow that can be conclusion ployee purpose This should not named. plan particular pension drawn is that each by be defeated a technical narrow and slightly is different from the others. We construction of the Act. the con- On recount, varying point, at this a few of the liberal, trary, a broad provisions. indulged accomplish the Act should be to the end sought to be attained.” the In case of Firemen’s Relief Pension 1,200,000 Fund to cities of also, Firemen, See Collins v. Po Board of more, paid only to a sur- shall be benefits licemen, etc., 719, 290 (Tex. 723 S.W.2d fireman viving married such widow “who Waco, 1956, Civ.App., n.r.e.); ref. 6243e, prior to his retirement.” Art. § 588d, Municipal Corporations p. § C.J.S. 1971, 7C(b)(3), by Acts 62nd as amended 1195 (1949). p. 869, 107, Leg., ch. 3.§ sought by The result be the Board could and Policemen In the case of Firemen should, process reached if we the Fund in cities of more than Pension conversion, ap- change as the word “or” it 275,000 300,000, and than the benefits less pears in the statute “and” to widow, payable to the but there is payable spouse would be “to to the “No sentence found therein which reads: prior whom the member was married to child result- such member impermissi- death and retirement.” This is any marriage contracted subse- ing from ble. Board of Insurance Com’rs v. Guardi- quent to the of retirement of said date Co., 630, an Life Ins. 142 Tex. 180 S.W.2d pension un- member shall be entitled to 906, (1944). 6243b, pre- der This this law.” Art. 9.§ language original cise from Col-Tex. Re language was contained 279, 1933, p. fining C.S., 1st Co. v. Railroad Commission of Tex Leg., bill. 43rd Acts as, 747, ch. 9.§ peculiarly applicable is here: In the case of Firemen and Policemen’s 500,000 language appears Pension to Funds cities of [of statute] 750,000, payment plain unambiguous to us to be and of benefits to widows supplied emphasis herein has been unless otherwise indicated. All

3H preceded the un- The statute which can meaning clear obvious. We provision requir- here had no scrutiny and der as statute written enforce the prior to been married ing am- a widow to have find an right have no to create or to 1967, upon call retirement. in order to member’s biguity none exists where law, present re- adoption rules the new recognized of the generally into play “prior ... to quirement construc- was added aids are used as which in- Legislature did not ambiguous retirement.” If the tion of statutes.” that the statute to mean tend amended also, Gateley Humphrey, 151 Tex. See re- before marry widow had to member tirement, pur- had the amendment then pose. deny Legislature intended to If the majority “or” be- states word married a widow a because she tween “death” and “retirement” the words retirement, it had but

member after his if widow to recover she was allows the express had several itself it done re- before he married to the member either pointed “It occasions as out earlier.3 not follow tired or before his death. I do Legislature the courts and not had logic argument. such If that remedy supply defects or deficiencies Legislature, then been intention of laws, unjust give relief from left as it was be- it could have the statute *5 legislation.” Board of Insurance unwise simply fore the of 1967 and amendment Co., supra Life Com’rs v. Guardian Ins. if provided recover that the widow would only proper at (180 909). The member before she was married to the is to en function of the court declare and death. Legislature force the law as made policy regard without or wisdom A more reasonable construction of Gaddy may act entail. or the results it opinion, my in is that this section Bank, v. First 283 S.W. Nat. 115 Tex. making provision is Pension Act (1926). separate A categories: three member (1) any who retired and dies from cause. Finding proceedings be- active, although (2) A member who is still low, in the trial court is he has earned retirement and dies from all things affirmed. is any (3) still ac- cause. A member who and dies tive not entitled to retirement cause. The from service-connected STEPHENSON, (dissenting). Justice provision “prior retirement” categories (2) (3) apply to could not my respectfully though I dissent. Even It could as the member has not retired. attempting lies sympathy only apply category (1) funds, my opinion to recover stat- for its inclusion obvious reason properly construed majority have ute. question. the statute Austin, 280 S.W. term We look to the same or similar used in the same connection in different Texas Bank & Trust Co. statutes.