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but in the proceedings neither objected nor of facts, without conclusions of law or fact consented to the proposal for a receivership. filed by the trial judge, and the judgment

No member of the firm of Castleberry, Lawrence & Rodden was present, nor were they represented.

The final decree was rendered after a hearing before the court, and a motion for new trial was not filed by either of the appellants. The assignments of error in the Court of Civil Appeals assailed the ruling of the trial court in classifying the debts of the receivership as superior to the mortgage debts of the appellants, and ordering their payment out of the proceeds of the property directed to be sold, accordingly.

Four questions are certified by the honorable Court of Civil Appeals as follows:

"(1) Whether or not, under the statute and the present rules for the courts of the state, it was necessary for appellants to have made a motion for new trial in the trial court in this cause to entitle them on appeal to a revision of the judgment, either as pertaining to question of fact or question of law, or as well to questions of law as to questions of fact involved in the case. ('A fundamental error' excepted from the question.)"

was assailed as being contrary to the law and the evidence. Having in mind, as it must be assumed, the rule early announced in Foster v. Smith, 1 Tex. 70, and constantly since adhered to, that in jury trials the grounds of complaint against the verdict must, in a motion for a new trial, be called to the attention of the trial court to entitle to revision upon appeal questions essentially involving the jury's action, it was held that in trials without a jury a different rule prevails, since there the judgment is wholly the act of the court itself, rendered upon a consideration of all phases of the evidence, and presenting a question of law, as to which

the judge having once ruled, and it not being presumable that he will change his ruling-there could be no reason for requiring a motion for a new trial. The decision was also rested upon the statute, then article 1333, R. S. 1895, which, in its relation to trials before the court, declared:

And in the event of negative answer to the the court to cause it to be noted on the record foregoing:

"(2) Whether or not the evidence, which is fully set out above, when considered with reference to the pleadings and motions in intervention of each of the appellants, is sufficient to support the conclusion of fact, as comprehended in the judgment of the trial court, that

"And it shall be sufficient for the party excepting to the conclusions of law or judgment of in the judgment entry that he excepts thereto, and such party may thereupon take his appeal or writ of error without a statement of facts or further exceptions in the transcript, but the transcript shall in such case contain the *** conclusions of fact and law aforesaid and the judgment rendered thereon."

"(a) Appellant D. C. Craver acquiesced in Such is still the statute law, this provision and consented to the administration of the prop-being, in exact terms, article 1991, R. S. erty by a receiver, and to the incurring of the 1911. The question remains, therefore, condebts by the receiver as such in continuing the trolled by that decision. business and operation of the plant; that "(b) Appellant National Bank of Daingerfield acquiesced in and consented to the administration of the property by a receiver, and to the incurring of the debts by the receiver as such in continuing the business and operation of the plant; that

"(c) Appellants Galt & Galt acquiesced in and consented to the administration of the property by a receiver, and to the incurring of the debts by the receiver as such in continuing the business and operation of the plant; that

"(d) Appellants Castleberry, Lawrence & Rodden acquiesced in and consented to the administration of the property by a receiver, and to the incurring of the debts by the receiver as such in continuing the business and operation of the plant.

"(3) Whether or not the trial court erred, as done, in adjudging the necessary debts incurred by the receiver in continuing the business and operation of the plant during the receivership to be paid from the proceeds of the sale of the specific property covered by appellants' mortgages in priority and before the payment of

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(a) Appellant D. C. Craver's debt and mortgage;

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(b) Appellant National Bank of Daingerfield's debt and mortgage; "(c) Appellants Galt & Galt's debt and mortgage; and

"(d) Appellants Castleberry, Lawrence & Rodden's debt and mortgage."

The statute is plain in its declaration that upon causing the exception to be noted in the judgment entry, the party may, without further formality, take his appeal or writ of error. If he so elects, he may do so without a statement of facts, but upon the judge's conclusions of law and fact, where request has been made that they be filed. has been made that they be filed. He may appeal only upon a statement of facts, or without either conclusions of fact or a statement of facts, since the filing of neither is made a condition of the right of appeal. Whatever be the course pursued in these matters, it is not necessary in such trials that a motion for a new trial be filed, though it is an optional and commendable practice.

[2] Because of the adoption by this court on January 24, 1912, since the decision of Greer, Mills & Co. v. Featherston, of amended rule 24 (142 S. W. xii), providing that "a ground of error not distinctly set forth in a motion for a new trial in the cause shall be considered as waived," it has been ruled by some of the Courts of Civil Appeals hat the holding in that case is no longer authoritative. But a construction of amend

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[1] The first question was definitely set- ed rule 24, which gives it that force, itself tled by Greer, Mills & Co. v. Featherston, 95 invalidates the rule. This court, as emTex. 654, 69 S. W. 69. The trial there con-phasized in Railway Co. v. Beasley, 155 S. W. sidered was before the court, without a jury, 183, where both this rule and amended rule the appeal was prosecuted upon a statement | 25 (142 S. W. xii) were considered, is by

script shall contain them, means only that they are to be so included in the record when a party has requested that they be filed.

the Constitution denied the authority to es- the filing by the judge of his conclusions. tablish a rule of procedure which is incon- The direction of the statute that the transsistent with a statute; and the rule is therefore to be understood as without application to a trial in which the statute declares the appeal may be taken without the necessity of a motion for a new trial. Certainly it should be considered as in harmony with an express decision of this court that such is the effect of the statute in trials of this nature.

[3] No confusion on the subject is found in the rules when they are considered as a body and in the light of the decisions of this court, for in other rules it is clearly recognized that not in all trials is a motion for a new trial necessary in order for the appeal to be considered. Rule 71a for the district and county courts (145 S. W. vii) reads:

"71a. A motion for a new trial shall be filed in all cases where parties desire to appeal from a judgment of the trial court, or sue out a writ of error in the cause, unless the error complained of is fundamental, except in such cases as the statute does not require a motion for a new trial."

[5] Upon the other questions, it is hardly necessary to restate the general rule that a receivership is always subject to vested rights. As broad as are the powers of a court of chancery, it is without authority to impair the force of contracts. Where the court takes charge of railroads or other corporations affected with a public use, and undertakes to operate them through a receiver, the necessary debts of such operation may, as against all parties to the suit, be made a prior lien upon the income, and, if that be insufficient, upon the property itself. But, as has been frequently stated, this is an extraordinary power; and it is exercised only because of the public duty resting upon such corporations and the public interest accordingly involved in the continuance of their operation.

[6] On the other hand, the conduct of the This exception is without meaning unless business of an insolvent private corporation, it refers to trials before the court without a or an insolvent person, is no part of the duty jury. This is also true of the provision of of a court of equity; and the authority, if rule 101a for the same courts (159 S. W. it exists, for the displacement in such rexi), adopted to meet the act of the Thirty-ceiverships of a vested lien for indebtedness Third Legislature (chapter 136), respecting assignments of error, that:

"All errors not distinctly specified in such motion, or in the assignments of error where a motion for a new trial is not filed, shall be waived."

[4] That the question in all of its phases may be relieved of any doubt we have deemed it proper to state in this opinion that the right to have the appeal considered, in cases of this character, without having filed a motion for a new trial, is not dependent upon conclusions of fact or law being filed by the trial judge, as seems to have been affirmed by two of the Courts of Civil Appeals in Cooney v. Dandridge, 158 S. W. 177, and Moore v. Rabb, 159 S. W. 85, each citing the decision of the Court of Civil Appeals for the Fourth District in American Rio Grande Land & Irrigation Co. v. Mercedes Plantation Co., 155 S. W. 286. In its application to trials before the court, article 1991, after declaring that the appeal may be taken upon exception to the conclusions of law or the judgment being noted in the judgment entry without a statement of facts or other exceptions in the transcript, does provide that in such cases the transcript shall contain the conclusions of fact and law, as it is also required to contain the judgment rendered. It is not made the duty of the judge, however, to file his conclusions except at the request of one of the parties, and the making of such request is left optional with the parties. Article 1989. It cannot therefore be supposed that in such cases the right of appeal, without other action than causing due

incurred through an operation of the business by the court must be found in an estoppel which is justly enforceable against the owner of the lien. The distinction which governs the question, according to whether the property is impressed with a public use or is purely private in its nature, is generally recognized, and is announced in the decision of this court in Clint v. Houston Ice & Brewing Co., 169 S. W. 411.

Where a lienholder procures the appointment of a receiver with the power to operate the property, which is subject to his lien, in a continuance of the business to which it is devoted, it is only just that the consequent expenses should take precedence over his lien, since it must be anticipated that such operation will be attended with cost, and possibly in excess of the income. Heisen v. Binz, 147 Ind. 284, 45 N. E. 104. The same rule should be applied to a party who, while not directly the applicant upon whose petition the receiver is appointed, is privy to the action which results in the appointment. But the indebtedness of the receiver has no right of priority over the vested lien of a creditor who neither applied for the receivership nor was a party to its procurement, merely because he is a party to the suit. Metropolitan Trust Co. v. Railroad Co., 103 N. Y. 245, 8 N. E. 488.

These, in brief, are the principles which, in our opinion, should control the decision of the second and third questions.

[7, 8] The respective liens of the appellants, Craver, Galt & Galt, and Castleberry,

subordinated to the indebtedness of the re

CO. (No. 2670.)

(Supreme Court of Texas. Nov. 10, 1915.) 1. STATUTES 241-CONSTRUCTION-PENAL Аст.

An act of the Legislature penal in its nature should be strictly construed.

[Ed. Note.-For other cases, see Statutes, Cent. Dig. §§ 322, 323; Dec. Dig. 241.] 2. STATUTES 47 VALIDITY CERTAINTY AND DEFNITENESS-PENAL ACT.

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An act, penal in its nature, levying penalties upon any person failing to erect a shed wherein railroad repair work may be conducted, must be plain enough for those operating the industry affected to know and realize whether by engaging in an act of repair without erectif such act is not sufficiently plain in meaning for those engaged in railroading to understand its terms and provisions, it must be held void for uncertainty.

Cent. Dig. § 47; Dec. Dig. 47.]
[Ed. Note. For other cases, see Statutes,

ceivers. Neither of them applied for the re- STATE v. INTERNATIONAL & G. N. RY. ceivership, and, according to the statement of the case made by the Court of Civil Appeals, neither of them was responsible for it. It was Craver's suit, already instituted for the enforcement of his lien, that was made use of by intervening creditors to obtain the appointment of the receivers. It could not be held necessary under such circumstances for him to assert the superiority of his lien, for he might well assume that its rank would be preserved by the court, yet he did so with reasonable promptness. He followed his motion, made at the January term of the court, after the appointment of the receivers in the preceding November, to prevent the impair-ing the shed they would breach its terms, and, ment of his lien through the receiver being required to desist from the cutting of the timber, by successive motions that the receivership be closed and his lien be given effect by a sale of the property. His mere presence at the creditors' meeting at which the receivership was determined upon did not make him a party to the receivership. He did not participate in the discussion and took no part in the proceedings. Nor did the presence of a member of the firm of Galt & Galt at that meeting affect them with responsibility for the receivership, since it does not appear that their representative gave any consent to the proposal or took any action upon it. No member of the firm of Castleberry, Lawrence & Rodden was present at the meeting; nor were they represented. Galt & Galt and Castleberry, Lawrence & Rodden intervened in the suit, but, it seems, that was after the court had directed that creditors, desiring to establish their claims, should enter the suit for that purpose. Both asserted in their pleas of intervention the precedence of their claims.

[9] The attitude, however, of the National Bank of Daingerfield was different. It was active in the procurement of the receivership; its cashier serving as one of the committee selected at the creditors' meeting to recommend to the court a receiver to be appointed with such powers as, in their exercise, produced the receivership's indebtedness. Its lien, therefore, is not entitled to prevail over such indebtedness.

It is our opinion, therefore, that the trial court incorrectly concluded that the appellants, Craver, Galt & Galt, and Castleberry, Lawrence & Rodden, acquiesced in and consented to the administration of the property by a receiver, and erred in adjudging the debts of the receivers as entitled to prior payment from the proceeds of property covered by their liens, but correctly determined that the National Bank of Daingerfield consented to the receivership, and properly subordinated its lien to the receivership indebtedness in the judgment; and the second and third questions are so answered.

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3. STATUTES 47-VALIDITY CERTAINTY AND DEFNITENESS-PENAL ACT.

Where an act of the Legislature requiring persons engaged in the repair of railroad equipment to erect a shed therefor except in case of light repairs was as definite in meaning as the nature of the subject would allow, the rule that a penal act must be certain in its provisions was complied with.

[Ed. Note.-For other cases, see Statutes,
Cent. Dig. § 47; Dec. Dig. 47.]
4. STATUTES 47-CERTAINTY-PENAL ACT.
Rev. St. 1911, arts. 6581, 6582, require
the erection and maintenance of a building or
shed by every person, corporation, or receiver
engaged in constructing or repairing railroad
cars or other railroad equipment, and provide
a penalty of from $50 to $100 at suit of the
state for each ten days of its violation, contain-
ing the exemption that the act shall not apply
at "points where it is necessary to make light
repairs only." In the state's suit to collect
the penalties defendant contended that the act
was too indefinite in its terms to be enforceable,
as "light repairs" was a relative term and whol-
ly unintelligible. Held, that the statute in ques-
tion was sufficiently definite for those affected
by it to understand its meaning so as to know
under what circumstances they would be trans-
cending it, since no plainer words than "light
repairs," conveying a clearer meaning, could
have been used by the Legislature in limiting
the intended exemption, so that it was not void
for uncertainty, especially in view of the fact
that the term, as used, was not a portion of the
act penalizing the infraction of the provision,
and not a portion creating a quasi penal offense,
but was used in a provision exempting from suit
or prosecution under the act persons affected by
its provisions.

Cent. Dig. 8 47; Dec. Dig. 47.]
[Ed. Note.-For other cases, see Statutes,

Error to Court of Civil Appeals of First
Supreme Judicial District.

Suit by the State against the International & Great Northern Railway Company to recover penalties for violation of Rev. St. 1911, arts. 6581, 6582. Judgment for defendant was affirmed by the Court of Civil Appeals (165 S. W. 892), and the State brings error. Reversed, and cause remanded for new trial.

B. F. Looney, Atty. Gen., and Luther Nickels, Asst. Atty. Gen., for the State. Wilson, Dabney & King, of Houston, for defendant in error.

the act as operatives and managers of such industry could not comprehend its meaning, then the act should be held inoperative and void for uncertainty of meaning. The provisions of the act, in order for it to be ening for those operating the industry affected by it to know and realize whether by engaging in an act of repair they would breach its terms. If the act meets and fulfills the requirements of this rule, it would be sufficiently definite in meaning to be operative. If it is not sufficiently plain in meaning for those engaged in the line of industry affected to so understand its terms and provisions, then the act would and should be held void for uncertainty, as it would be inexcusable for a government to fine or punish its citizens for an infraction of a law which in its terms could not be understood by them. But it is equally true that, if the act of the Legislature is as definite in meaning as the nature of the subject would allow, no more than this should be expected to meet the rule of certainty required; to hold otherwise would be to nullify the power of the Legislature to legislate at all on a proper subject for its consideration.

YANTIS, J. Suit was by the state of Tex-forceable, should be plain enough in meanas to recover penalties for the alleged violation of articles 6581 and 6582, Revised Statutes 1911, which required the erection and maintenance of a building or shed by every person, corporation, or receiver engaged in constructing or repairing railroad cars, trucks, or other railroad equipment, and provided a penalty of from $50 to $100 for each ten days of its violation. The act has several exemptions, by the terms of which such person, corporation, or receiver would be absolved from its penalties. Among these exemptions is the provision that the act shall not apply at "points where it is necessary to make light repairs only." A general demurrer was sustained to the state's petition upon the ground that the act was too indefinite in its terms to be enforceable, the trial court holding that the term "light repair' is a relative term, and wholly unintelligible." The Court of Civil Appeals affirmed the judgment of the trial court, adopting its opinion, which was in writing, for its own opinion, and which can be found in 165 S. W. 892.

The act of the Legislature which is assail

ed is as follows:

"Art. 6581. Every person, corporation, or receiver, engaged in constructing or repairing railroad cars, trucks or other railroad equipment, shall erect and maintain a building or shed at every station or other point where as many as five men are regularly employed on such repair work, the building or shed to cover a sufficient portion of its track so as to provide that all men regularly employed in the construction and repair of cars, trucks, or other railroad equipment shall be sheltered from rain and protected from other inclement weather. The provisions of this article shall not apply at points where less than five men are regularly employed in the repair service, nor at division terminals, or other points where it is necessary to make light repairs only on cars, nor to cars loaded with time or perishable freight, nor to cars when trains are being held for the movement of said cars.

"Art. 6582. Any person, corporation, or receiver who shall violate the provisions of the foregoing article shall be liable to the state of Texas for a penalty in any sum not less than fifty dollars nor more than one hundred dollars, and each ten days of such failure or refusal to so comply shall be considered a separate infraction authorizing the recovery of a separate penalty; provided, however, that all persons, corporations, or receivers, affected by the preceding article, shall have until June 1, 1911, within which to comply with the provisions thereof." [1-3] The holding of the trial court, and of the Court of Civil Appeals, that the statute in question was too indefinite in its terms to be enforceable, presents the only question for our determination. It will be observed that the act of the Legislature in question is penal in its nature, and for this reason it should be strictly construed. Construing it strictly, if its provisions are vague and uncertain of meaning to a degree that those

[4] It is worthy of notice to observe that the term "light repairs," as used in said section, is not a portion of the act which penalizes the infraction of its provision, and not a portion of the act which creates the quasi penal offense, but the term is used in a provision exempting from suit or prosecution under the act the persons affected by its provisions.

It is one of the defenses to a prosecution under the act which the act itself provides for the benefit of those engaged in the construction and repair of railroad equipment. As used in this connection, we think the meaning of that portion of the act of the Legislature which creates the offense is not rendered as uncertain as it would be if the term "light repairs" constituted an ingredient of the offense itself.

The subject of legislation was the protection of those engaged in repair work from exposure to inclement weather. This was a proper subject for legislation, and the Legislature

was within its constitutional powers in considering the subject. It was their duty, however, in passing upon it, to write the law plain enough to advise persons affected by it when and under what circumstances their acts and conduct would breach its terms. At the same time no one should contend that it was the Legislature's duty to accomplish in expression of clearness that which is impossible. While within their jurisdiction they were legislating upon a proper subject, could the Legislature have made this exemption any plainer in meaning than they did make it? The term "light repairs" is composed of two words of common and constant use by those engaged in

At a glance it is seen, and requires no argument to establish, that each of said provisions in the water-closet law contains no greater degree of certainty than the repair statute. The water-closet statute was by this court held to be suitable to the subjectmatter of the act, and not violative of the Constitution, or inoperative on account of uncertainty. In passing upon that case this court, speaking through Mr. Justice Phillips, clearly expressed the true rule, and the reason therefor, in the following language: violative of either the federal or state Consti"Neither do we regard the act inoperative or tution because of any vagueness or uncertainty in its terms. A requirement that the waterclosets be kept in a reasonably clean and sanitary condition, that they be located within a reasonable * * * distance from the passenger depots, or be kept in connection therewith, and that they be kept well lighted, presents no difficulty to the understanding, and should present none in its observance. Its terms are suitable to the subject-matter of the act; and, having regard for the difference in conditions at the stations upon railway lines where it is made operative, the use of more specific language would very probably have provided only an arbitrary and impracticable rule." State v. T & P. Ry. Co., 154 S. W. 1159.

together, should be reasonably plain in mean-, ute involved in the instant case. In the ing to any person; and, when the term water-closet statute (Acts 29th Leg. c. 133), "light repairs" is considered by those en- which was penal in its nature, one of the gaged in a special line of industry and call- requirements of the railroad companies was ing, such as the railroad business, it is pos- to keep water-closets or privies in a "reasible that it might have a technical mean- sonably clean and sanitary condition." Aning in common use as applied to such in- other of its provisions was that said waterdustry, and in such event the expression closets should be maintained "either within "light repairs" would mean what it is com- its passenger depots, or in connection theremonly understood to mean among those en- with, or within a reasonable and convenient gaged in such special line of industry. But, distance therefrom." Another was "to keep aside from the possibility of this technical said water-closets and depot grounds admeaning, the inquiry is pertinent as to jacent thereto well lighted at such hours in whether the Legislature could have used the nighttime as its passengers and patrons plainer words than "light repairs" and at such stations may have occasion to be at conveyed a clearer meaning than that term the same." imports. What clearer expression could have been used? What could have been provided in the act to make the meaning plainer? It occurs to us that a more definite expression could not have been used to cover the subject intended. If a definition of the term "light repairs" had been attempted, it would have been impossible of construction, unless a catalogue of all repairs that might be considered “light” was embraced in the act. This would have been indeed a difficult, if not an impossible, task, when all the separate parts of the complicated machinery in use in the equipment and operation of railroads which might need repairs were considered, and the character of the repairs to each of said pieces of machinery, whether "light" or otherwise, were taken into account. The task of cataloguing all repairs on all the machinery of a railroad company, and of properly classifying the repairs which would be "light repairs" would appear entirely unreasonable to demand of the Legislature. Such a rigid requirement would be too great a restriction upon the legislative functions, and, if followed, would shorten the arm of the Legislature to an extent that would amount to a serious hindrance to the exercise of their constitutional functions. We know of no rule of construction that would authorize us to nullify an act of the Legislature because of uncertainty in meaning, when from the nature of the subject legislated upon no more definite meaning could reasonably be expressed, the effect of which would be to prohibit legislation upon the subject. What constitutes "light repairs" in any stated line of industry should find little difficulty among those engaged in that particular line of employment. We think the statute in question is sufficiently definite for those affected by it to understand its meaning so as to know it to understand its meaning so as to know under what circumstances they would be transgressing its provisions. This is all that is or should be required.

We think the rule stated, and the reasons given therefor, in that case by this court, have direct application to the question involved in this case.

In 1907 the federal Congress passed an act regulating the hours of service for the employés of common carriers. Act March 4, 1907, c. 2939, § 2, 34 Stat. 1416 (U. S. Comp. St. 1913, § 8678). Among its provisions is this:

Telegraph operators, train dispatchers, etc., are not permitted to serve more than nine hours in the twenty-four hour period in offices operated continuously night and day, or thirteen hours in offices operated only during daytime, except in case of emergency, when the employés named in this proviso may be permitted to be and remain on duty for four additional hours in the twenty-four hour period, or not exceeding three days in any week.

The constitutionality of this act of ConSeveral expressions used in the act of the gress was assailed on the ground that the Thirty-First Legislature, commonly known as use of the term "except in case of emergency” the "Water-Closet Law," do not seem more rendered the act so uncertain and vague as certain than the term "light repairs"; yet to be incapable of enforcement as a penal this statute has been sustained against the statute. This contention was overruled by

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