*1 1Q61 physician presents attending insured fees. insured’s had This of fundamen- a a consideration, though over tal error afflicted with tuberculosis been and entitled to period days, assigned or at least not of 3 months and of as error. fifty period (50)-days approximately before alleged: day It was “On or of' about 27th policy.” of the date October, gave plaintiff D.A. defend appellee re- proof “In no event could ant Second. due notice and death said attorney’s statutory penalty Verde, duly fees aforesaid, Maria J. cover in pellant Yal de ap- proof payment death furnished view of .manded from defendant of the said by proof appellee, Dollars, ($500.00) which of death sum of Five Hundred policy; attend- affidavit of insured’s amount of said failed showed ing physician but defendant has afflicted that insured had been and refused and still fails and refuses prior pay long any part to the to the same tuberculosis a thereof.” The petition proof policy, date appellant death of the and on was filed December 1928. The file justified refusing payment, petition speaks mark was Li itself. failure, berty penalized (Tex. App.) and even b'e for such Ins. could not Life Co. v. Moore Civ. though might National, (2d) 178; etc., 10 S.W. afterwards have been v. Taree (cid:127) attending (Tex. App.) S.W.(2d) shown Civ. the statement of the physician was untrue.” allegations quoted The file mark and show pay thirty days failure to within after de jury found that assured was pleadings sup mand. The are sufficient to July 23, 1928, sound health on evi port recovery penalty attorney’s of the finding. supports dence It would serve First, etc., (Tex. Long App.) fees. Civ. purpose quote at no the same discuss S.W.(2d) Southern, etc., 220. Great v. John only length. died evidence show she (Tex. App.) (2d) 424, son 13 S.W. S.W.(2d). and Id. of which certificate tuberculosis the doctor’s (Tex. App.) Com. 1093. Also see accompanied proof death, and the Moore and Taree Oases cited above. course, doc is not conclusive. The trial, Affirmed. present tor was at the but not was testify, testimony-of vari called supports amply ous witnesses view that .the shortly good very health until was assured death, her before died after an illness just days. a few Nor is there merit second al. et v. WOOD TUTTLE et al. proposition. stated, physician’s As cer No. 8485. as to death from tificate tuberculosis and that assured had been afflicted with the disease for about clusive Appeals Court of Texas. San Civil Antonio. days fifty was means 5, 1930. Nov. Rehearing Denied Feb. payment, When demand was made plaintiff put upon in error was notice policy was asserted (ar- error, defendant ticle and under the statute S.) plaintiff R. in error became attorney’s penalty liable fees and if for. thirty days pay within failed after such demand. To sustain the second ingraft upon would be to ception ex- the statute an fit did 'see to make. beneficiary might A case arise where the estopped penalty would be claim attorney’s fees, estoppel but an does simply not arise because the certificate of physician proof accompanying the of death Plaintiff, ample is incorrect. in error had inquire and time to ascertain true cause of death that the certificate errone- payment placed plain- ous. The demand for inquiry. apparently tiff in error none. made argument urged pleadings In it is sup of defendant in error are insufficient to recovery port attorney’s *2 Todd, Corpus Christi, appel- J. D.
lants. Blalock, Robert Lee Jack Bobbitt and both Austin, appellees. SMITH, J. brings This action into regulating, of statutes cer prohibiting, exploitation cases tain along fish and in certain waters Aransas, Patricio and coast San Nueces counties, purposes. for commercial We re gret although questions raised are quite important, appellees have filed no brief er the trial assailed defendant and no suit shall be the case. Leg. (1929) against, chapter 118, Reg. maintained him Sess. therefor.” Acts 978f); chap- (Vernon’s O. art. Ann. P. act, chapter 75, pro- containing later Id., p. (Vernon’s P. O. art. Ann. visions, ter 941); chapter 75, *3 prohibitions, penalties and similar to Leg. Sess., Called 2d chapter 119, those in apply made was to to (1929) (Vernon’s 952Z— art. Ann. O. necessary certain other waters not to describe 3). to referred will hereinafter be The acts herein. by chapter went off! The case their numbers. by appellants It is contended that general court the trial demurrer which Game, Oyster neither the Pish and peti- Commis against appellants’ amended sustained sion, secretary, nor its executive has been tion, taken as must be averments of which the given any authority game, to enforce the they specificfacts. true in far as state so fish, oyster laws; previously and that that pleading alleged that in It was the stricken authority lodged Game, and in the Pish herein, appellants petitioners, citi- are the Oyster Commissioner, lat but that since the distinguished state, from zens of this by express provisions ter officewas abolished marketing engaged catching aliens, in and chapter 118, power of no officialhas the en to shrimp the coast fish of from waters off and the force the acts. true of said It is Aransas, coun- and Nueces San Patricio single that tended, the office was abolished as appellants ; purposes “have ties that for these expressly provided but it was further complied fully satisfactorily all the and abolishing duties, powers, act that the regulating statutory requirements laws and by and functions theretofore exercised commissioner should thenceforth he exercised the nets and that seines and the use of equipment nets have seines and and other by commission, directly acting through the or by duly inspected approved the been proper and secretary provided its executive therein for. in to conform all officers and found Appellants’ contention is therefore without particulars thereto, plaintiffs are and merit. shrimp- lawfully engaged fishing and now in equipment seines, nets and contended, It effect, is next in specifical- in the waters hereinafter aforesaid hppellants pursuing because were their busi ly described, fishermen as market named and prior laws, ness accordance with and under therein.” and dealers by proper licenses issued to them authorities under had no stringent regulations the state laws, alleged Legislature officials those impose the It was power Oyster Game, Commission, to and or Pish additional more enforcing counties, prohibitions, the named and law are said acts officers of where by appellants’ rights threatening prior attempting and to enforce laws were against appellants, further restricted. and must be conceded that destroying power, the state has the will effect of inherent enforcement have the to be exer through appellants’ Legislature, regulate cised taking said business and will render to supplies, equipment, boats, shrimp public and valueless buildings the which waters, prohibit appellants and have to accumulated from time to time taking, prosecution such in order lawful establishment and to conserve those natu business, $500,000. ral resources for of their the value ultimate benefit of all people. long power So as that is rea By provisions'of chapter 118, the office sonably by legislative authority, exercised Oyster Game, of abolished, Pish and Commissioner was government may branch of the in powers and and functions of Ordinarily, necessity terfere therewith. Game, merged into such officewere and Pish regulation prohibition or reasonableness of in left or Oyster Commission, thereby created. specific cases, being, powers prescribed and Those that functions Legislature, to the discretion of the great act, detail. thereof, whose determination in the exercise Chapter penal statute, pro- 119 is a discretion, sound is conclusive any person, shall be unlawful for vides that it power originate courts. legisla prescribed, under the therein to use power carries with tion the further any catching seine or similar device for fish change existing laws, including regulation shrimp, or and possession, have devices his prohibition, changing conditions, to meet by permit without a issued power simply is not lost because commission, along within certain waters said those have affected been licensed to excep- coast The act line. contains certain prior under laws. virtue of the conditions of necessary here, tions not to set fixes cer- They charged were with notice that penalties provisions, tain anduxurcTudeswith for violation of said grant Legislature under the this'provision: “That the legislate upon subject. could further Oyster Game, Pish and Commissioner of Tex- deputy may as or his shall have the So it be said that the right nets, may separate rights engaged to seize and hold seines or of those possession tackle his as evidence until aft- the wholesale business and market-
prescribed Christi have ter tive Sess., p. 3]), not twenty rod and or in one-fourth mile Mustang not ion. son 265 mission with to act whom ties,” [1929] cause of ing rights other than proper.” 1929 the except and act “created the mission raised this complain ically dispose ers, lic, admitting ing by opinion taining or their nature and that cial declaration acts rights South end .In As amended The It is By These or on the statutes east 118, (Vernon’s deemed that: tile in those directly disposed duties Game, Oyster in duties” in his (chapter their motion appellants’ resources for an and as its “chief judgment where place, provided in their Pass,” question, the that the feet in which shall products was made reel, may net or (chapter 150 Acts action sufficient act effective On Motion for of the Island two miles north observations, device for the latter “may “It “Commission and functions those possession any seine, abolished necessary to Eish and Commissioner, as the commission waters, [Vernon’s Ann. P. C. art. artificial exclude the individual Ann. C. set, [Vernon’s waters Reg. appoint shall violation we will ordinary pole of act Padre Island public by an act effective failure here minnow length conflict Game, trial is in an act pleadings. delegate effect, and petition who use all of the Acts 41st to consist affirmed. executive profit. contains appropriate penalties demurrer. for Sess. be unlawful for have public catching as in to, mean low we court the office of or September an discuss bait, Oyster Gen. Laws 41st of Eish would commercialize lead to the although general question. with this rehearing appellants Ann. P. C. art. members of the of said may perform in the the Gulf shore Rehearing. seine of more heretofore vested are be set the drag executive,secretary, former the this to approved sought did paramount did catching bait, and waters, trot 978f). This com and him such privilege In deference officer,” through warrant therefore many questions of Leg., validity authority, pow fish to a court to any Commissioner, Leg. (1929) not err of original opin- not tide from the out six line, provisions. Oyster net line, easting “shall deem from, 1, 1929, Act.” Game, or conclusion provisions 2d Called seine, art here. members; questions the point assert or trawl January any per- June set be done Corpus shrimp its du of specif- n 9521— execu of rights Chap while same 941]) Com than judi- Eish Leg. pub- (cid:127)Penal line, fish- line sus- are net the the tbe the 29, or to (cid:127) p.1 a use n shrimp twenty meshes of which one-half inches the tidal it is lawful one-fourth this above it cast use ters. in one mile of the Pass, leading reel, and in Nueces lying land; Lake; Bay, Contec missioners for any seine, within within Aransas Certain between Harbor rock Bay, which more Port Aransas Aransas lying trot seine ordinary Bay, coastal waters connecting ning to of Eish canal Corpus seine, Bay or on Cove,’ thence South on a line sued County, Christi In each of In section la of article the Laguna Madre, leading inlets, fish or any drag a set catching bait, State not line, casting running net, to the Gulf further line, person Cove, at the artificial Cove, from leading provisions of between any Gulf * net or Code, Copano for feet in * penalties Christi Pass, Puerto not more than Bay hays, Bay; all of Aransas pole or minnow seine * *” mile net, County, set of .* of shrimp, net or the the of Nueces any *4 or are pass this Shoal waters that: “It shall be unlawful Lake, provided: seine, from said South other than the to a mile the Mexico, from from the Lower Game, parts mentioned in and the several other device for * streams, trammel net or strike line, leading length Bay, into another of bays Gulf of Mexico Harbor Island and Mud bait, Channel, place, set, person Bay, the Gulf shall line, of shall Island and the Aransas rod and waters of are trawl device or in section any Corpus his Bay, Bay, Ingleside Cove; Red or line, Powderhorn or the act. Mexico; one passes of southwest West or cast Mission and tidal waters of clearly that where Pish St. knot to prescribed trot or have the said shrimp be.defined bayous, lakes, authorized ,to from or twenty any body “That it shall be easting rod, point without take Mud the other than with Charles be 941, and catching bait, of into reel, on the Pass, leading Christi penal drag end line, of not more herein use or Section body pass less than one defined as pass, Mexico; Brazos tidal waters art. net of Bay * * n trawl knot, or catch Corpus as so Plats, Laguna all the Corpus his of artificial or in or on or ordinary pole feet in of Channel, Texas Bay any seine, Lake, Oyster Com catching waters as set Mainland on the persons intersecting Bay, Elour of such Peat Bayou mentioned, ‘Red stream passes, or possession deputy in permit Is for beginning amended, drag violation Santiago hereof.” lagoons, rod net, line, Shallow between minnow1 Refugio set Corpus Christi Christi waters bay fish or Oyster Madre Island Hynes length Sham begin catch- north with Bluff or to from than Pish bait, this and and wa and fish un- Is or or or or to provision provisions Sutherland, charged Cons. with violation mentioned. 'Stat. n (2dEd.) acts, “Game, Oyster Fish and Commis- § deputy have his shall sioner of Texas or prohibited insist nets, right seines and hold seize incorrectly insufficiently waters are de possession as evidence or other tackle in his assailed, in con scribed sequence and that the acts suit and no until after trial defendant impossible for defect against him therefor.” shall maintained he persons legislation affected to ascertain appellants' In their fifth or or within what are included determine waters challenge prohibiting act prohibition. excluded from We reasonably opinion are not the acts subject objection. bays, from the named the act waters to this various ground or passes, coves, lakes., a “local” lagunas, that such enactment is and flats “special” law, designated- prohibitions under constitutional intention to which the propose names, respective notice of the lo or otherwise legislation published per acts, should been have so that cated and identified being prescribed provisions, seeking obey good' in those laws sons faith to published difficulty locating as a ceded that no such notice condition to should have no passage ques act avoiding prohibition. within the waters included 56, 57, (Tex. tion. We over Article Const. §§ Gibson v. Sterrett *5 1189; State, this for reason App.) rule our law within the tutional 65 Gavina 144 S. v. W. special opinion, a local the act is not 572, 145 Tex. Cr. R. S. W. 594. contemplation of the consti Appellants’ seems chief provisions upon by appellants. relied against provisions which to be of the acts 343; Finley, 173, Clark v. 54 S. W. W. 93 Tex. fishing penalize for commercial fishermen 255; Rogan, 177, Reed v. Logan 1028, 1029; 94 Tex. 59 S. public permit therefor waters a without State, 74, W. 111 v. Tex. Cr. R. S. 54 commissioner, or, by the as substituted State, Smith 54 Tex. Cr. R. v. 298. statute, later the commission. It is contended 289, 113 S. W. empowered that this the commission is act by appellants It is that contended prescribing penalty, whereas, to make a law a said are in laws acts other conflict contended, exclusively it is such exists they thereby, repealed this state not and that delegated Legislature, and cannot be “indefinitely framed and of such governmental agency. doubtful construction that neither of them true, delegate course, Legislature is It that allegations can be understood.” too These cannot board to an administrative to invoke a decision the courts. prescribing penal a a to make law They point out no laws with said equally competent ty, it is but true that it is may conflict, points acts inbe nor the of such Legislature for the to- authorize commis conflict, duty courts, upon and it is not the purpose pre sion or board scribe duties or for created that motion, (cid:127)their own to search the statutes at upon ascertain conditions large purpose for such conflict for may impos existing which an law striking may down one them. The same purpose effectuating and in the is general allegation be said of the that the designed pursu enacting It the law. unintelligible, acts are in contravention of authority ance of this railroad that commis 6, Appellants article Penal Code 1925. do commissions, sions, utility public stock live point acts boards, sanitary commissions,health and like ambiguous unintelligible. claimed to be agencies functions and adminis exercise their say, connection, It is sufficient to in this that relating sev ter and enforce to their the laws defects, they exist, patent if are not so departments. very In eral their nature obvious to invoke condemnation from a give must be laws them flexible order court motion. own practicable application to the diverse condi So is it claimed that the acts are in tions which exist within the several states. 3, contravention of section principle 35 article is this that upon captions State authority rests, Constitution authority operating because and it is this express specific subject do not game embraced that fish commissions are body many states, the acts wherein it is in Texas and stat that no suit shall attacked, be maintained the utes similar to here up principles commissioner uniformly case of seizure reten of which have been paraphernalia offending tion him of the seq., 179, held. 6 R. C. L. 179 et §§ 180, 181, 481; fishermen. We overrule this contention. The 11 L. “Fish R. C. and Fish purpose acts, specifically expressed eries,” 28, 29, 35, 37; §§ State v. Atlantic captions, regulate their cases Co., is to 617, 969, certain Coast Line R. 56 Fla. 47 So. ; prohibit S.) 639, (N. 32 L. R. A. State note public state, Hanlon, 19, waters of the 662, and v. 77 Ohio St. 82 N. E. 13 subject permissible under Legislature (N. S.) 539, it was for the Rep. 472; L. R. A. 122 Am. St. incorporate purely Sisson, remedial Com. Mass. v. 189 N. 75 E. 1066 630; Rep. (N. S.) 752, 1 Am. L. A. 109 St. R. W. Leslie, S. parte R. Tex. Ex Cr. App.) (Tex. Kibbe,
227; Gibson. Sterrett v. Raymond 16; Tex. Civ. S. W. App. 95 S. W. there contend necessity existing passage of public acts; demand no overrule there was conten these We
their enactment. or neces of the demand tions. sity Legislature to legislation for the determine, is conclu determination upon the courts. sive by appellants It is contended equal process and due act is violative protection State Federal clauses of Constitutions, in contravention vesting
provision Constitution power to the exclusive the make laws. We opinion are of objections. subject to these are not rehearing Appellants’ over- motion ruled. *6 et al. HOUSTON CITY OF et al.
COOMBS No. Appeals Texas. Galveston. of Civil Court 20, 1930. Nov. appellants. Hamblen, Houston, W. Rehearing Jan. Denied Cosby, Neathery, Wil- Sam Rodman S. appellees. Orem, Houston, all of liam D.
GRAVES, J.' against granting protest be- them, injunction temporary of a low whereby they, city the suit Hous- at intervening certain ton and individual owners such, abutting property street interfering were restrained city, removing agents, servants, employees, three houses from obstructive city part Vale abuts street within the on blocks 316 and 324 of what is known as Heights addition, ac- Houston subdivision or cording Company’s Land Omaha Texas & South thereof, duly filed record plat county Harris clerk in the office of the grava- county on October 31st of 1892. The Coombs, Mrs. at men of their the hearing preliminary held thereon undisputed writ, evi- issuance had actually hold- dence shown herself be then property fide a bona claim her that had thereto emanated title thereof, possession “peaceable coupled adverse enjoy- cultivation, use, with its immediately ment,” period for an unbroken years, preceding than more