The Texas Company v. Stephens

103 S.W. 481, 100 Tex. 628, 1907 Tex. LEXIS 303

• Court: Texas Supreme Court
• Decided: June 26, 1907
• Status: Published

Opinion

WILLIAMS, Associate Justice.

This was an action brought by the plaintiff in error in the District Court of Travis County against the defendants, J. W. Stephens, Comptroller of Public Accounts; J. W. Robbins, State Treasurer; R. V. Davidson, Attorney-General, and J. W. Brady, County Attorney of Travis County, its purpose, generally stated being to obtain an injunction to restrain the defendants from proceeding to enforce against plaintiff the provisions of chapter 148 of the Acts of the Twenty-ninth Legislature, generally called the “Kennedy Bill,” by which certain taxes'were levied. The complaint was founded upon contentions that the entire Act, and more especially sections 9, 11, 12 and 13 thereof, which more immediately affected the plaintiff, are unconstitutional and void, and also that the defendants, upon an erroneous construction of those sections, were about to proceed to require of plaintiff reports and to charge it with liabilities and subject it .to prosecutions and suits not warranted by their provisions.

The defendants took various exceptions to the petition, involving, among others, the propositions that no cause for an injunction against them was shown and that the action was, in effect, one against the State. They, however, affirmatively set up facts upon which they contended that plaintiff was liable to the State under the Act referred to for taxes and prayed for judgment therefor in behalf of the State. In no other way was the State made a party to the proceedings.

Upon final hearing the District Court held the Act valid, and that. upon a proper construction of its provisions, the plaintiff was liable for some of the sums of money and was not liable for others, which the defendants claimed of it. Judgment was rendered adjudging that the defendants recover of the plaintiff the sums for which plaintiff was held to be held liable, and acquitting it of all other liability. No disposition of the preliminary injunction which had been issued appears, except inferentially, to have been made. The plaintiff appealed to the Court of Civil Appeals, assigning as errors the rulings of the trial court against it, and the defendants filed cross-assignments upon the rulings against them. The Court of Civil Appeals reformed the judgment so as to adjudge a recovery by the State of the sums adjudged below to the defendants, and in all things else affirmed the action of the District Court.

The plaintiff alone has applied for a writ of error, and we are not advised by anything said or done in this court by counsel for defendants whether or not they expect action at our hands upon their cross-assignments presented in the Court of Civil Appeals. We deem it proper to say that, as causes must be brought to this court upon petition for writ of error specifying the grounds upon which the writ is sought, and as our consideration must be confined to the grounds so specified,' assignments made in the Court of Civil Appeals, but not embraced in some form in a petition for writ of error, lay no basis for a review by this court of the judgment of the Court of Civil Appeals. Such assignments are looked to only for the purpose of ascertaining whether or not the points made in the petition were raised in the Court of Civil Appeals. The case is therefore before us only upon plaintiff’s petition and is so presented as to confine us to the points made therein in reviewing the action of the Court of Civil Appeals.

One of the objections is that the Court of Civil Appeals erred in rendering judgment in favor of the State when the State was not a party to the action, and we must hold that it is well taken. Whether or not the Attorney-General would have been authorized to make the •State a party by cross-action to recover the taxes due, we need not decide.. He did not assume to do so. The answer is by “the defendants” and they merely pray that the State recover, etc. Nowhere do we find that there was ever an intention on the part of the Attorney-General to make the State a party or to sue in its name.

The idea of the defendants, in pleading as they did, doubtless was to obtain a construction of the statute, determining and declaring the extent of the plaintiff’s liability put in issue by the petition in accordance with their own contention; and probably the judgment of the District Court was intended only as an adjudication of these issues. It went too far, however, as was held by the Court of Civil Appeals, in adjudging a recovery by the defendants in the ordinary form of judgments for the recovery of money. The defendants had no such right of action for the taxes as entitled them to such a judgment.

We shall return to the question as to the character of judgment to be rendered after other questions shall have been disposed of.

In its attack upon the validity of the statute the plaintiff has invoked many provisions of the State and Federal Constitutions, and urged many propositions which have so little relevancy that they require no further notice. We shall confine our attention to those which seem to us to present real questions. One of them is that the sections before referred to, which are the ones applying to the businesses in which plaintiff has been engaged, levy an ad valorem tax upon the value of its property in excess of the rate allowed by the Constitution. This contention has been made with reference to a number of like statutes in this State and has invariably been overruled. (Stephens v. State, 4 Texas, 137; Albrecht v. The State, 8 Texas Ct. App., 216; The State v. Galveston, H. & S. A. R. R. Co., 16 Texas Ct. Rep., 909; 2 Cooley on Taxation, pp. 1094, 1095, 1105, 1106, 1107, 1109 and authorities cited.)

In the case of Producers Oil Co. v. The State, in which this court recently refused a writ of error, the point was made that the tax levied by section 13 of the Act under consideration upon producers of oil was a tax upon property. But the courts below held otherwise, and this court in refusing the writ of error approved the holding. The taxes in the Act are levied because the persons specified are engaged in particular, defined businesses, and are laid upon the carrying on of those businesses. The amounts of the taxes to be paid by those engaged in the businesses are to be ascertained by various standards depending upon the characters of such businesses, but in no instance is a tax laid upon all or any of the property owned by such persons. Had the statute simply defined the businesses and imposed a tax of a fixed sum upon each, no one would have questioned that it was a tax upon the doing of the businesses, in other words, an occupation .tax. The fact that the amount of the tax is to be determined, in prescribed methods, from the value, or extent, or magnitude of the businesses done can not convert it into an ad valorem tax upon the property of the persons conducting them. We could only hold that it does by disregarding •not only the nature of the provisions themselves and the language in which they are expressed, but the course of judicial decision here and elsewhere and of former legislation in this State, by which such laws have been treated as imposing occupation taxes.

As especial reliance to sustain this contention is placed upon the language of section 9, we may as well discuss it at this point, and, as other questions arise out of it, we set out its material provisions. It provides, that each and every person, association or corporation, “which shall engage ... in the wholesale business of coal oil, naphtha (sic), benzine or any other mineral oils refined from petroleum, and any and all mineral oils, shall pay an annual tax of two percent upon their gross receipts from any and all sales in this State of any of said articles, . . . and an. annual tax of two percent of the cash market value of any and all of said articles that may be received or possessed or handled or disposed of in any manner other than by sale in this State; and it is hereby expressly provided that delivery to or possession by any person, etc., in this State of any of the articles hereinabove mentioned . . . from whatever source the same may have been received, shall for the purpose of this Act, be held and considered such a sale and such ownership and possession of such articles and property (when no sale is made) as will and shall subject the same to the tax herein provided for.”

The concluding language quoted is appropriate to the levy of a tax upon the property mentioned, but it is controlled by the leading provision defining the business on the doing of which the tax is imposed. This, when considered in connection with the general scope and purpose of the statute, fixes the character of the tax, and all of the other provisions of section 9 must be viewed as merely dealing with the incidents of the business taxed, and as specifying more fully the elements of value to be taken into account in arriving at the amount charged upon the pursuing of the occupation and as probably intended, also, to prevent evasions. When the character of the business and of the tax upon it are ascertained, the operation of the incidental provisions, inapt as the language is when applied to such a subject, may be in most cases determined without great difficulty. The persons referred to as receiving, possessing, handling or disposing of the specified commodities are those first mentioned as engaged in the wholesale business of oil, etc., from which it follows that the receiving, etc., must be while they are so engaged; that is, as a part or incident of that business. The provision specially relied on as characterizing the tax as one upon the property can not be isolated from those which control its meaning, and when all are considered together, no doubt is left as to their character. It is urged that it is apparent from the statute itself that it is a mere evasion of section 9, article 8, of the Constitution, limiting the rate of taxation upon property to thirty-five cents on the one hundred dollars valuation; but the power to impose taxes on occupations is expressly given by the same article, with no limitation as to their amount or the manner in which it shall be ascertained, and, as we have already shown, the method here employed had been sanctioned by judicial decisions and legislative practice long before the adoption of the present Constitution. The courts have no authority to interfere merely because heavier burdens are imposed than ever before, if that be the fact.

Another objection is that the statute discriminates between plaintiff and others pursuing occupations which belong to the same class, in imposing heavier taxes upon plaintiff than are imposed upon them, and is therefore violative of the Constitution of the State, which provides thát “occupation taxes shall be equal and uniform upon the same class of subjects within the limits of the authority levying the tax,” and also violative of the fourteenth Amendment of the Constitution of the United States in that it denies to plaintiff the equal protection of the laws. The very language of the Constitution of the State implies power in the Legislature to classify the subjects of occupation taxes and only requires that the tax shall be equal and uniform upon the same class. Persons who, in the most general sense, may be regarded as pursuing the same occupation, as for instance merchants, may thus be divided into classes and the classes may be taxed in different amounts and according to different standards. Merchants may be divided into wholesalers and retailers, and, if there be reasonable grounds, these may be further divided according to the particular classes of business in which they may engage. The considerations upon which such classifications shall be based are primarily within the discretion of the Legislature. The courts, under the provisions relied on, can only inter fere when it is made clearly to appear that an attempted classification has no reasonable basis in the nature of the businesses classified, and that the law operates unequally upon subjects between which there is no real difference to justify the separate treatment of them undertaken by the Legislature. This is the rule in applying both the State and Federal Constitutions, and it has been so often stated as to render unnecessary further discussion of it. (The State v. Galveston, H. & S. A. R. R. Co., supra.)

The objection urged along this line is more particularly directed against section 9 because it is said to levy higher taxes upon those engaged in the “wholesale business of oil,” etc., than upon others engaged in wholesale businesses of other commodities. This is predicated entirely upon a comparison of the laws levying taxes upon the several classes of business and upon the bare fact that they levy different amounts or by different standards, and is therefore a mere assumption of the true point of controversy, which is, whether or not there was reasonable ground for the discriminations made by the Legislature! We have not been aided by a showing of any facts by which a comparison might be made of the characters of the different businesses and of the conditions under which they are pursued. That there may be differences, affecting the question, between' the “wholesale business of oil,” etc., and wholesale businesses carried on with other articles of commerce, is obvious. Differences in the profits derived, in the extent of the consumption of the articles and, therefore, in the facility with which the burdens may, in a course of business, be distributed among consumers generally, and other conditions that might be supposed, could properly be taken into consideration by the Legislature in making classifications and determining the amount of the tax to be laid upon each; and it would be only an extreme and a clear case that would justify an interference by the courts with the legislative action. We see nothing of the kind in this law. The mere fact that discrimination is made proves nothing against a classification which is not, on its face, an arbitrary, unreasonable or unreal one.

The attack upon the statute because of the severity of the measures authorized for its enforcement and of the penalties prescribed is met by the fact that the question as to their validity is not now involved. None of them were enforced in this case, and we think it quite clear that they do not affect the right of the State to collect the taxes, themselves, which is all that is now before us.

Other objections may best be considered in construing the several sections of the law to which they relate.

Much is said of the effect of the law in piling up taxes upon the same property in its passage through different processes and its employment in different businesses. Since the taxes are upon occupations and not on property, such complaints, of course, present nothing for the court unless they involve questions as to the power of the Legislature, or as to the construction of the different provisions of the statute. With its alleged iniquity, merely, the court has nothing to do. A little attention, however, to a few obvious propositions will suggest the solution of almost all of the difficulties of this character. The same person or corporation may carry on several different businesses and, of course, may be taxed in respect of each. But when the Legislature has defined and taxed one business, it is not to be assumed that it has intended to again tax the same business under another name; nor is it to be assumed that it has intended to tax, as a distinct business, that which is a mere incident of another business which has been defined and taxed as a whole.

Sections 9, 11, 12 and 13, under which it was sought to make plaintiff liable,- levy taxes upon those engaged in the following businesses: 1. (section 9) The wholesale business of oil, etc. 2. (section 11) The leasing, renting, operating, hiring or charging mileage for the use of various classes of cars, including tank cars. 3. (section 12) Owning or operating pipe' lines for various purposes. 4. (section 13) Producing oil from wells.

During the periods in question the plaintiff, in this State, produced crude petroleum from wells upon one tract of land owned by it, and purchased crude petroleum produced by others. Some of this it sold in its crude state, both to consumers and retailers, some at points within the State and some at points without the State. Other crude oils, so purchased and produced, it refined into the various products named in section 9 of the statute and sold these refined products, partly to consumers and partly to retailers, and partly within and partly without the Státe. These are the facts upon which its liability under section 9 depends. It also during the same periods leased or rented to railroads, for the transportation of oil, its tank cars at the rates fixed by the Eailroad Commission of this State. This raised the question under section 11. It also operated pipe lines, transporting the oil of others for hire and also transporting its own oil. For this, upon both kinds of transportation, it was charged with liability under section 12. It also, as stated above, produced oil from its own wells, to which business section 13 applies.

Taking up first the question as to its liability under section 9 we observe that the courts below held that it was not liable for sales of oil in its crude state, whether purchased or produced by it, this upon a construction of section 9 that its language includes only products refined from petroleum and not the crude oil. So that the question which is left is as to plaintiffs liability to be charged in respect of the sale of such refined products. Its first contention is, that when the caption of the statute and section 9 are construed together, the tax is found to be imposed only on wholesale dealers, and that it was not such in any proper sense of the phrase.

The caption of the Act, so far as it is necessary to quote, entitles it an Act for the levy and collection upon individuals, etc., “owning, operating, managing or controlling for profit ... the business of . . . wholesale dealers in coal oil,” etc.

Section 9 requires only that those upon whom the tax is imposed shall “engage in . . . the wholesale business of oil,” etc., and adds the other provisions specifying the elements to be taken into consideration in arriving at the value or basis for estimating the amount to be charged.

The word, wholesale, accurately imports a selling, and “to sell by wholesale, is to sell by large parcels, generally in original packages and not by retail.” (Bouvier.) The word is defined by the International Dictionary as the “sale of goods by the piece or large quantities, as distinguished from retail,” and this is its accurate popular meaning. The words used in section 9 therefore require nothing more than the engaging in the business of selling in the way properly designated by the word, “wholesale,” as thus defined. But it is urged that we must add the word “dealer” taken from the caption so as to define the business as that of wholesale dealer, which may be granted; and it is then argued that by judicial interpretation a dealer is one who buys to sell again, and not one who buys to keep or produces to sell; that both the elements of buying and selling must be present to constitute the business of a dealer. Decisions are cited which hold that such was the meaning of the word as employed in statutes undergoing interpretation, and all of them are probably sound, as constructions of those statutes. Some of them say that such is its” popular meaning- and, therefore, its legal meaning in a statute, unless there be something else to control. But certainly that is not its only popular use, nor do the decisions referred to so hold, and we doubt if it is most commonly so limited in actual use. The law attaches no absolute signification to the word, less than such as it may properly have in general use. It is quite plain that the statute in question, when it describes the business intended as “the wholesale business of oil” and, by way of caution, adds the other provisions above set out, which, in effect, make it immaterial how the possession, etc., of the commodities may have been obtained, does not mean a business so restricted as the definition, which is contended for, of the word “dealer” would make it. But it is said that the section 9, unless so construed, would embrace subjects not covered by the caption and violate the Constitution. This assumes that the words in the caption could have no other meaning than that ascribed to them in this contention and that it was out of the power of the Legislature to define, in the body of the Act, the sense in which those words were employed in the caption. It seems clear that the terms “business of wholesale dealer,” in the title were sufficient to point attention to any admissible definition of the business intended that might be introduced into the body of the Act. It may be true that, under a caption expressed in such specific language, it would not have been permissible to tax a business which no sense of that language could be made to embrace, but that is not what this statute attempts. In our opinion, the word, dealer, as accurately applies, according to popular use, to one engaged as must be those described in section 9 as to one who buys to sell again. One who acquires, possesses, handles and sells oil may properly be said to deal in oil whether he has bought it to sell again or not.

It will be seen that the plaintiff buys crude oil, refines it into the different products and sells those products. We can perceive no sound reason for holding that to this extent, at least, plaintiff is not a wholesale dealer according to its own definition. The fact that the commodity is separated into different articles and is improved and rendered fit for more enlarged uses, after purchase of the crude oil and before sale of the refined product, should have no decisive influence upon the applicability of this statute, even if it were necessary that the plaintiff should be found to be a dealer in the sense contended for. Were we to hold that, in refining and selling the oil produced by itself plaintiff is not a dealer in such oil, it would still be true that in carrying on the other part of its business, in buying and refining crude oil and in selling the refined product, it would be a dealer, taxable as such; and there is good authority for the proposition that in ascertaining the amount of the tax applicable to such business the entire amount of its sales from its entire stock thus made up should be taken into account. (Union Oil Co. v. Marrero, 52 La. Ann., 357.) But as we have seen, no such interpretation of the statute is permissible. The plaintiff’s entire wholesale business in the commodities mentioned in section. 9 falls within its terms.

This involves the question as to plaintiff’s liability to be charged in respect of sales of articles refined from oil produced by it. As we have before indicated, the tax is not laid upon the doing of that which is nothing more than an incident of another business defined and taxed. The business of producing oil is so defined and taxed, and a necessary incident of such business is the selling of the product. The doing of this by wholesale is as much an incident as the selling by retail; and we are not prepared to hold that the mere refining of the oil by the producer before selling would alter the case. But the plaintiff’s business of selling is more than that. It procures the stock of crude oil by production and purchase, refines it, indiscriminately, and thus obtains its stock of refined products with which it conducts a wholesalé business in coal.oil, naphtha, etc. It thus brings itself within the very terms of the statute. (Union Oil Co. v. Marrero, supra.) The provisions of section 9 concerning articles received, possessed, handled, or disposed of otherwise than by sale, and that concerning delivery to or possession by any person, etc., of such articles, were intended both to indicate the character and scope of the wholesale business to be taxed and the values to be taken into account in determining the amount of the tax, and they leave no doubt of the correctness of the conclusion just announced, if the preceding language would admit- of any. Difficulties might be presented by the facts of particular cases in determining the property to be considered under the special provisions just referred to, in estimating the amount of the tax, but none such arise in this case, the court below having based its estimate on- sales only. Those provisions clearly reveal the intention of the Legislature with respect to the character of the wholesale business which is taxed.

With reference to the contention that plaintiff’s business, insofar as it consisted of sales and deliveries out of the State, was not within the taxing power of the Legislature, we deem it sufficient to say that the occupation taxed was carried on wholly within the State and that occupation is the subject of the tax. Particular sales are not taxed, the volume of the business being consulted merely to determine the amount of the tax upon the occupation. The commerce clause of the Constitution of the United States does not apply to the case. (Ficldin v. Shelby County, 145 IT. S., 31.)

Sales to consumers may be by wholesale, in the sense of this statute, as well as sales to retailers, and the court below did not err in holding that the tax was to be estimated with reference to all such sales. This disposes of all questions arising under section 9 of the Act.

The judgment of the District" Court exempted the plaintiff from liability under section 11 concerning tank cars, and no question is before us as to the correctness of that holding.

Section 12 declares that “every individual, joint stock association, company, copartnership or corporation . . . which owns or operates a pipe line or lines within the State of Texas, whether such pipe lines be used for the transmission of oil, natural or artificial gas, whether the same be for illuminating or fuel purposes or for any other purpose, or for steam, for heat or power, or for the transmission of articles by pneumatic or other power, shall be deemed and held to be a pipe line company.” It then requires quarterly reports, showing charges and freights within this State paid to or uncollected by such pipe line company, or account of any business transacted by it in the capacity of a pipe line company as defined; and that each pipe line company engaged in conveying oil shall report, as a part of its gross receipts, such sums as it would have been compelled to pay for conveying oil owned by it and conveyed for itself if it had employed some other pipe line company to convey it. It then requires the payment of two percent on the gross receipts as shown by such report. It is easily deduced from all of the provisions, together, that the tax is levied upon those engaged in the business of transportation’by pipe lines for others for hire or profit, and the title of the Act re-enforces this idea, in that all of the businesses specified in it are to be conducted for profit. To all such section 12 applies; and the position can not be maintained that it exempts from the burden" imposed any business of the same class, that is, such as are engaged in serving the public for hire. There is no doubt that those carrying on such businesses may be properly classified for taxation, apart from the owners of different businesses who, as an incident of their businesses, use pipe lines to transport exclusively their own commodities. The plaintiff falls within the class designated in the Act, and the fact that owners of private businesses, employing pipe lines for their own purposes, are not also subjected to the tax, raises no constitutional objection. (American Sugar Refining Co. v. Seibert, 179 U. S., 94; Pacific Express Co. v. Seibert, 142 U. S., 339; The State v. Galveston, H. & S. A. R. R. Co., supra.)

A more difficult question arises from the provision that, in the amount upon which the occupation tax is to be calculated as against companies transporting oil, there is to be included not only the amount received for service rendered to others, but also a sum calculated as the cost of transporting their own oil, the difficulty being in the fact that the last named imposition is not placed upon the owners of any of the other pipe line businesses mentioned in the twelfth section. This being only a method of arriving at the amount to be charged upon the occupation of transporting for hire, we can perceive no constitutional objection against the mere inclusion of the element mentioned in- ascertaining the scope of the business. The Legislature might have thought, not unreasonably, that the value of the entire use made of his pipe lines by one holding himself out as transporting goods for the public should be looked to, and that this included the benefits resulting from the use in his own business as well from the use in the service of the public.

But if this was the idea, it was adopted with reference to companies transporting oil only, and there is an apparent discrimination against them. The difficulties in the way of sustaining the plaintiff’s contention, that this is not a permissible discrimination, are twofold. In the first place, it is not made to appear, and we do not know judicially that there are in the State any of the other companies or persons transporting the other things mentioned who do not also transport oil. In other words, it is not shown that there is in fact any discrimination between plaintiff and others. In the second place, there is the question of classification to which we have before alluded. The fact that all persons, etc., owning or controlling pipe lines are included in the first part of the section and are taxed as a class, does not, as plaintiff’s counsel seem to argue, preclude further classification and the application of differing rules among them. That is what is done, in effect by the provision in question when it makes a special rule applicable only to those transporting oil; and the contention, if all the necessary facts were shown, would come hack to the question as to whether or not such classification is based upon some real difference between the businesses, or is arbitrary and capricious merely. We can not say, as the cause is presented to us, that the business of piping oil, partly for the public and partly for the owner of the line, does not differ so substantially from the businesses of so transporting the other things as to furnish reason for the application of different rules to them.

We can not see the force of plaintiff’s contention that the provision in .question can not be applied to it because it has no connections between its pipe lines and those of others carrying oil for hire and therefore could not have employed the lines of others. The provision merely intends to get at the basis for estimating the occupation tax and, for that purpose, prescribes a standard for ascertaining the value of the use the owner has made for his own purposes of his pipe lines also engaged in the service of the public.

The propositions attacking the validity of the tax laid by section 13 upon those producing oil from oil 'wells have been heretofore considered by this court in refusing the writ of error in the case of the Producers Company referred to in the early part of this opinion. We shall not consume further time in discussion. The contentions on this branch of the case are all met by the propositions that the taking of oil from oil wells, as conducted by plaintiff and others so engaged, is a business subject to be taxed; that such business is sufficiently indicated in the statute, and the tax is imposed upon it as an occupation tax and not as a tax upon land, or oil, or property of any kind.

The contention that the Kennedy bill did not take effect before July 1, 1905, so as to impose liability for the taxes for such part of the preceding quarter as elapsed after April 17, of that year, can not be sustained. The bill was passed with the emergency clause and by the requisite vote to put it in force upon its passage and, having been approved on April 17, it went into effect at once as a law. Of course it is true, as contended, that the time when taxes became due under it is to be ascertained from the intention manifested by its provisions. It fixes the first quarter as beginning April 1, but its passage through the Legislature having been delayed until that time had passed, it could not operate during the interval from April 1 to April 17. The intention was clearly manifested, however, by its history and by the emergency clause that it should become effective as a revenue producing measure as soon as it could be enacted, and there is nothing in the facts stated to prevent that intention from controlling. (The State v. Galveston, H. & S. A. R. R. Co., supra.)

This disposes of all the objections, deserving discussion, to the action of the District Court and Court of Civil Appeals and it remains only to determine the proper judgment to be rendered by this court. The issues made in the District Court involved the determination of the extent of the liability of the plaintiff, and that was done by the judgment, the particular sums collectible being clearly stated therein. The proper judgment to give effect to the rulings of the court would have been to so far dissolve the injunction previously granted as to allow the defendants to proceed with the collection of such sums, and to perpetuate the writ as to all the others in issue; and that will be the judgment of this court.

Ho question has been made here as to the sufficiency of plaintiff’s allegations to entitle it to an injunction and we shall not discuss that question. We may remark, however, that the case is different in some important respects from that of Stephens v. Bailway (16 Texas Ct. Bep., 918). Both the District Court and the Court of Civil Appeals held the plaintiff liable for all costs, and we discover no complaint of such holdings in the petition for writ of error and it need not be discussed. The judgment of this court will accordingly be in favor of the defendants for all costs except those of the writ of error from the Court of Civil Appeals to this court which will be adjudged against the defendants in error.

Reformed and rendered.