GLASS et al. v. SMITH et al., 244 S.W.2d 645

CALVERT, Justice. This case involves the right of respondents (six members of the Fire Department of the City of Austin who are also signers of an initiative petition) to a writ of mandamus to compel petitioners (the City Council, City Manager and City Clerk of the City of Austin) to perform certain duties prescribed by the charter of the City of Austin in the calling and holding of an election for approvaf or rejection by the qualified voters of the City of Austin of a proposed ordinance classifying policemen and firemen, fixing their pay, designating certain holidays, etc.

The full text of the proposed ordinance is set out in the opinion of the Court of Civil Appeals and need not be repeated here. The trial court granted the writ of mandamus as prayed for by respondents and that judgment was affirmed by the Court of Civil Appeals. 238 S.W.2d 243. The proposed ordinance was initiated by a requisite number of citizens of the City of Austin under the provisions of

Article IX of the Charter of the City of Austin.

Section 1 of

Article IX provides that “The citizens of the City of Austin may propose and submit to the City Council ordinances * * * ” by petition with “a request that the same be enacted into law by tire Council.” The

section then directs that “the Council shall either (

a) pass the ordinance set out in said petition without alteration within ten days * * * or (

b) submit the same to a vote of the qualified voters of the City at a special election to be called for that purpose within forty days * *

Section 2 provides for publication of the proposed ordinance by the City Clerk. It Í9 conceded by petitioners that all procedural requirements for submission of the proposed ordinance have been met and no objection is made to its form. Refusal of petitioners to- comply with the mandatory provisions of the Charter for the calling and holding of the election is based upon their contentions that the subject matter of the proposed ordinance is not legislative ini character, and that the ordinance, if adopted, would be void.

It follows, they contend, that the calling and holding of the election would be a vain and useless procedure and that a court of equity should not and will not issue a writ of mandamus to compel the performance of a vain and useless act. Petitioners assign several reasons for their view that the proposed ordinance would be invalid. They may fairly be summarized as follows:

(1) Because the proposed ordinance is in conflict with

Article 1269m, Vernon’s Annotated Civil Statutes, (Acts 1947, 50th Leg., p. 550, ch. 325 as amended by Acts 1949, '51st Leg., p-. 1114, ch. 572 § 6,) in that whereas the proposed ordinance , permits the electorate- to create and provide classifications of firemen and policemen

Article 1269m confers that power upon the Civil Service Commission and the City Council exclusively.

(2) Because the proposed ordinance is in conflict with

Article 1583-2, Vernon’s Annotated Penal Code, in that that

article also vests in the -City Council exclusively power to- set up the proposed classifications;

(3) Because the Charter of the City of Austin vests in the City Council exclusively authority to deal with the subject matter of the proposed ordinance;

(4) Because the proposed classifications are set up on a basis contrary to- the requirements and provisions of

Article 1269m;

(5) Because the proposed ordinance is based upon a legislative act which is itself void because violative of

Article III,

Section 56 of the Constitution of Texas, Vernon’s Ann. St. With these questions- before it the Court of Civil Appeals concluded that the subject matter of the proposed .ordinance was legislative in character, and,- having so held, then refused, on authority of City of Austin v. Thompson, 147 Tex. 639, 219 S.W.2d 57 and City of Dallas v. Dallas Consolidated Electric Street Railway Co., 105 Tex. 337, 148 S.W. 292, to consider or pass upon any of the other questions touching the validity of the ordinance.

The City of Austin and City of Dallas cases were cases in which thi9 Court held that writs of injunction would not issue to restrain the holding of void elections duly called by those charged with the duty and responsibility of calling and holding elections. • A like holding was made by the Commission of Appeals in the case of Winder v. King, Tex.Com.App., 1 S.W.2d 587. The basis of the decisions in the City of Austin and the Winder cases was that the courts will not interfere with the exercise by the people of their political right to hold elections.

The same idea was involved in the decision in the City of Dallas case but that decision involved also- another theory to- be noticed later at greater length.

After referring to the City of Austin and the City of Dallas cases, the Court of Civil Appeals in the instant case said that “as a corollary to the rule of nonjudicial interference with elections the courts are duty bound to prevent all interference with the political power of the people.” [238 S.W.2d 249] It was in keeping with this pronouncement that the Court of Civil Appeals held that the writ of mandamus would issue irrespective of the possible invalidity of the proposed ordinance. Petitioners vigorously attack this holding of the 'Court of Civil Appeals-.

While we do not agree with the full import of the rule announced by the Court of Civil Appeals, we do- agree with its conclusion that respondents being otherwise entitled to have the initiative election called and held, cannot be defeated in that right by the refusal of petitioners to perform purely ministerial duties on the ground that in their opinion the ordinance would be -invalid if adopted.

We believe also that to determine whether respondents are otherwise entitled to have the election called and held the court’s inquiry should be on a broader basis than that established by the opinion of the Court of Civil Appeals. As heretofore indicated, the inquiry of the Court of Civil Appeals extended only to- a determination of whether the subject matter of the ordinance was legislative in character.

But to entitle respondents- to- a writ of mandamus on the ground that they have a legal right to have the election called and held and that petitioners are under a legal duty to order and to hold it, it is not enough that the subject matter of the proposed ordinance be legislative in character but it must also appear that the subject matter of the ordinance has not been withdrawn from the field in which the initiatory process is operative. In the case of Taxpayers’ Ass’n of Harris County v.

City of Houston, 129 Tex. 627, 105 S.W.2d 655, 657, this -Court said that “the power of initiative and referendum * * * is the exercise by the people of a power reserved to them, and not the exercise of a right "granted”, and that “in order to protect the people of the city in the exercise of this reserved legislative power, such charter provisions should be liberally construed in favor of the power reserved.” Even so, the field in which the initiatory process is operative is not unlimited. It is first limited by the very nature of the proceeding.

When the people exercise their rights and powers under the initiative provisions of a city charter they are acting as and become in, fact the legislative branch of the municipal government. Accordingly, city charters frequently expressly limit the right of initiative to- legislative matters. But even though a charter contains no such express limitation — and there is none in the Charter of the City of Austin — the limitation is usually read into the charter by the courts. Southwestern Telephone & Telegraph Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321; Denman v.

Quin, Tex.Civ.App., 116 S.W.2d 783 (writ ref.); McQuillen on Municipal Corporations, 3rd Ed., Vol. 5, p. 253, Sec. 16.55. The field where the initiatory process is operative may also be limited by general law.

Article XT,

Section 5 of our Constitution provides that no city charter shall contain any provision inconsistent with the general laws of this state. Any rights conferred by or claimed under the provisions of a city charter, including the right to an initiative election, are subordinate to the provisions of the general law. It follows that the Legislature may by general law withdraw a particular subject from the field in which the initiatory process is operative. Again, the field may be limited by the city charter itself.

Other provisions of the charter may withdraw from the people the power under the initiative provisions to deal with a particular subject. The limitation by the general law or by the charter of the field in which the initiatory process is operative may be either an express limitation or one arising by implication. Such a limitation will not be implied, however, unless the provisions of the general law or of the charter are clear and compelling to that end.

From what has been said it follows that we must first determine whether the initiative election sought by respondents is within the field in which the initiatory process is operative and therefore one which they have a legal right to have held. That tlie scope of our inquiry should be thus extended is indicated by the opinion of this Court in the case of Dallas Ry. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106, and that the Court is justified in extending it this far and no further is indicated by the opinion of the Supreme Court of Massachusetts in the case of Bowe v.

Secretary of the Commonwealth of Massachusetts, 320 Mass. 230, 69 N.E.2d 115, 167 A.L.R. 1447. In the Geller case this Court held that the referendum provisions of the charter of the City of Dallas did not apply to an ordinance authorizing a change of street railway rates. Referring to the provisions of the charter providing for a fair hearing, inspection of books, attendance of witnesses, etc., preliminary to the passage of a rate ordinance, the court said: “we think it clear that the charter provisions themselves reserve from referendum the fixing and regulating of the

schedule of rates.”. [114 Tex. 484, 271 S.W. 1107.] In the Bowe case it appears that the Constitution of Massachusetts provided for popular initiative on a state level, but the very constitutional provision authorizing the initiative limited ■ that right by -providing that no proposition inconsistent with the individual’s right to freedom of the press, freedom of speech, freedom of elections, and the right of peaceable assembly should be the subject o-f initiative or referendum petitions.

Initiative proposals to regulate certain activities of labor unions were attacked on various grounds, among them that the proposed laws would violate the Fourteenth Amendment to the Constitution of the United States with respect to the equaí protection of the laws and other provisions of the federal and state Constitutions, and also that they would violate the plaintiffs’ right to freedom of speech, freedom of the press, peaceable assembly, etc.

The Massachusetts Court declined to decide in advance the substantive validity questions but held that it not only could but should decide in advance whether the subject matter of the proposals had been reserved from initiative procedure, saying: “We think that the question whether an, initiative provision relates to an excluded matter is a justiciable question.” [69 N.E.2d 128, 167 A.L.R. 1447.] From these cases it will appear that the theory upon, which we proceed in this case in deciding some of the questions challenging the validity of the 'proposed ordinance and in refusing to decide others is no new or novel theory or approach to those questions.

We agree with the conclusion of the Court of Civil Appeals that the subject matter of the proposed ordinance is legislative in character. This seems to' us to be settled by the opinion of this Court in the case of Taxpayers’ Ass’n of Harris County v. City of Houston, 129 Tex. 627, 105 S.W.2d 655. The fact that the proposed ordinance involved in that case fixed only minimum salaries whereas the proposed ordinance here sets up a fixed scale of salaries renders the proposal here nonetheless legislative in character.

See McQuillen on Municipal Corporations, 3rd Edition, Vol. 5, § 16.57, pp. 262 and 263, and the cases there cited. The other matters included in the proposed ordinance — classification of firemen and policemen, providing for overtime, setting holidays, etc. — certainly are the general type of matters defined as legislative by the court in the case of Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783 (writ ref.).

Has the subject matter of the proposed ordinance been withdrawn, expressly or by necessary implication, by either the general law or the city charter, from the field in which the initiatory process is operative? Petitioners do not contend that there is any general law or any provision of the Austin City Charter expressly providing that ordinances of the type here involved may not be adopted by the people at an initiative election, but they do contend that both the general law and the charter confer on the city council exclusively the authority to pass ordinances dealing with the subject matter of this ordinance.

If this- contention is correct, it follows that by necessary implication the subject matter of the ordinance has been withdrawn from the field in which the initiatory process is operative. As the basis of their contention that authority to deal with the matter here involved is conferred by general law upon the Civil Service Commission and the City Council exclusively, petitioners refer us to> Sections 8 and 12 of

Article 1269m, V.A.C.S., and

Section 3 of

Article 1583-2, V.A.P.C. In neither of these articles of the statutes is authority to deal with the matters involved expressly conferred exclusively upon the Civil Service Commission and the city council.

Article 1269m,, Vernon’s Annotated Civil Statutes,, is a Civil Service Act for firemen and policemen. Sections 8 and 12 are the only sections of the Act which deal with the creation of classifications.

Section 8 in part provides: “The Commission (Civil Service Commission) shall provide for the classification of all firemen and policemen. Such classification shall be provided by ordinance of the City Council, or legislative body * * * ”. The following provisions appear in

Section 12: “All positions in the Fire Department, except that of Chief or head of the Department, and in the Police Department, except that of Chief or head of that Department, shall be classified by the Commission and the positions filled from the eligibility lists as provided herein. All offices and positions in the Fire Department or Police Department shall be established by ordinance of the City Council or governing body * * * ”, In reality petitioners’ contention suggests two inquiries, viz.:

(1) Did the Legislature, by providing that classification should “be provided by ordinance of the City Council, or legislative body”, intend to imply that the power to pass such an ordinance was reserved or withdrawn from the initiative process and was vested exclusively in the City Council? and

(2) Did the legislature, by providing that the Civil Service Commission should “provide for the classification of all firemen and policemen”, intend to limit the power of the City Council so, that it was authorized to include in a classification ordinance only the classification created and provided by the Civil Service Commission? The legislative direction that classification “shall be provided by ordinance of the City Council”, does not negate the right and power of the people to pass the classification ordinance. The legislature’s use of the words “City Council, or legislative body” is simple of explanation.

All legislative powers conferred by statute on municipalities in this state are conferred on the “City Council” or “City Commission”. It is to be doubted that there exists anywhere in our statutes a provision that a given legislative power of a municipality may be exercised “by the people” or “through the initiative”.

If it were held that legislative powers could not be exercised by the people through the initiative in all cases in which the statutes provide that they shall be exercised by the “City Council”, the people would be shorn of all right to exercise any of the statutory powers conferred on municipal governments and the initiative would become an empty symbol. There can be no right or power existing in the people of Austin to adopt an ordinance through the initiative process if the power to adopt it is not lodged in the City Council in the first instance.

Before the right to an initiative election under the Austin City Charter exists, an opportunity to .pass the proposed ordinance must have been afforded the City Council and the City Council must have declined to pass it. The charter contemplates that the people’s right to- initiate an ordinance exists only where the council has been given the power to pass the ordinance. Moreover,

Article 1269m confers upon the City Council other powers and duties such as the duty to confirm the appointment of Civil Service Commissioners, the fixing of the salary of the Director, the confirmation of the appointment of Fire and Police 'Chiefs, making provision for office space, extending leaves of absence for injuries, and establishing and abolishing offices and positions, but of these only the power to classify and the power to create and abolish offices and positions are directed by the Legislature to be exercised by ordinance.

The Legislature itself recognized the subject matter of classification to be legislative in character and it did not by any language used in the Act clearly imply that the peo-pie should not have the right to deal with the subject matter through the initiative. Adverting now to the claim that the Act confers the-power to create classifications upon the Civil Service Commission exclusively. It is the language quoted from

Section 8 and not that quoted from

Section 12 of the Act that empowers the Civil Service Commission to “provide for” classification of firemen and policemen. The language quoted from

Section 12 simply directs how the power to classify shall be exercised. It adds nothing to the power conferred by

Section 8. If the language of

Section 8 is held 'to vest in the Commission exclusively the power to create classifications it necessarily follows that it must also be held to be a limitation on the power of the City Council to act independently in the enactment of a classification ordinance. If Commission action in creating the classifications is a necessary prerequisite to passage by the Council of a classification ordinance, there can be no doubt but that the matter is, by necessary implication, withdrawn from the initiative field for the limitation thus imposed on the power of the Council would exist also on the power of the people.

This would be true because there is no place in the initiative procedure for creation of the classifications by the Commission. It becomes important, therefore, to determine whether the Legislature intended that the power of the City Council to pass a classification ordinance should be limited to the passage of an ordinance prepared by the Civil Service Commission. It is not to be doubted that in the absence of constitutional inhibition (and we know of none here) the Legislature could have conferred classification power upon the Civil Service Commission exclusively.

Since, however, the Legislature itself declared that classifications should be provided by ordinance of the City Council, we cannot look with favor on the view that the Legislature intended at the same time to strip the Council of all discretion in the creation of classifications. The Legislature could have provided for the creation of classifications by the Commission by rule or resolution, obviating any necessity for action by the Council. It could have provided simply that the power to create classifications should be exercised “only” or “exclusively” by the Commission. That it did not do so is significant.

The City Council in the aldermanic form of municipal government and the City Commission in-the Commission form of government has always been the primary repository of municipal legislative powers in this state. If the legislature had intended that the Civil Sendee Commission should supplant the City Council in the exercise of any legislative power it could and should have made that intent known in clear and unmistakable language. Civil Service Commissions are usually regarded as administrative agencies exercising only purely administrative powers.

It has been said that “The fact that the commission (Civil Service Commission) is authorized by statute to malee rules does not authorize it to divest the.city council of its legal rights as governing body of the city”. Jazwinski v. City of Milwaukee, 253 Wis. 17, 33 N.W.2d 224, 226. If it were held that the Act invests the Commission exclusively with power to' create classifications its failure to act would deprive the Council of the power to act and would deprive those entitled thereto of the benefits under the Act.

To so hold would also be to deny to the Council the power before passing an ordinance prepared by the Commission to change or alter the classifications in any material respect. These things argue against a holding that the language of

Section 8 vests the power to create classifications in the Commission exclusively. We hold that the language of

Section 8 of the Act simply requires the Commission to act in aid of the City Council in the creation of classifications to be embraced in a classification ordinance. So concluding, we hold further that the language of

Section 8 is not a limitation on the power to pass a classification ordinance and does not withdraw the subject matter of such an ordinance from the operative field of the initiative. What has been said disposes of the contention that

Article 1583-2, V.A.P.C. confers upon the City Council exclusively power to classify firemen and policemen by its provision that classifications and salary scales should be set up by all “municipal governments” within thirty days after the effective date of the act. The charter provisions to which we are referred as conferring exclusively on the city council authority to 'deal with the subject matter of this ordinance are those which vest in the city council power to control departmental organization, to manage the fiscal affairs of the city and to fix wages and salaries of officers and em-' ployees.

The particular provisions are no different in their wording from the many other charter provisions which confer certain powers or impose certain duties on the city council. There are dozens of such provisions in the charter. In addition to the many separate provisions,

Section 1 of

Article XI of the .Charter reads as follows: “The City Council shall be vested with the power and charged with the duty of adopting all laws and ordinances not inconsistent with the Constitution and laws of the State of Texas, touching every object, matter and subject within the purview of the local self-government conferred by this act upon the citizens of the City of Austin.” If the mere fact that a particular provision directs that the City Council exercise a particular legislative power were held to exclude the right of the people to exercise the same ■power, it might well be argued that

Section 1 of

Article XI of the Charter completely nullifies the initiative provision of the Charter. Of course it does not. The Charter is to -be read as a whole and its various provisions harmonized as far as possible, Dallas Ry. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106, 1108, keeping in mind the rule laid down in the City of Houston case that the provisions should be liberally construed in favor of the power of initiative reserved in the people.

Having held that the subject matter of the proposed ordinance is legislative in character and therefore normally subject to the initiatory process we would not hold that it was •' withdrawn from that field and placed within the exclusive jurisdiction of the City Council by the Charter unless we were driven to that result by express provision of the Charter or by clear and necessary implication of other Charter provisions. We find no such impelling provisions or language in this Charter. Cited by petitioners for a contrary holding is the case of McElroy v. Hartsfield, 185 Ga. 264, 194 S.E. 737.

That case was decided by a divided court and the reasoning of the majority was rejected by this Court in the City of Houston case. We do not choose to follow the majority opinion in the Mc-Elroy case.

In all the Texas cases called 'to our attention in which it has been held that the people of a municipality could not validly exercise a delegated legislative power through initiative proceedings, it will be found that authority to act was expressly conferred upon the municipal governing body exclusively, or there was some preliminary duty such as the holding of hearings, etc., impossible of performance by the people in an initiative proceeding, by statute or charter made a prerequisite to the exercise of the legislative power. Into this class fall the cases of McCutcheon v.

Wozencraft, 116 Tex. 440, 294 S.W. 1105; Southwestern Telegraph & Telephone Co. v. City of Dallas, 104 Tex. 114, 134 S.W. 321; Lindsley v. Dallas Consolidated St. Ry. Co., Tex.Civ.App., 200 S.W. 207; Dallas Ry. Co. v. Geller, 114 Tex. 484, 271 S.W. 1106; Denman v. Quin, Tex.Civ.App., 116 S.W.2d 783 (writ ref.). There is no such impediment presented by the statute or charter in the passage by the people of the proposed ordinance involved in this case.

What we have said disposes of all the reasons assigned by petitioners for contending that the proposed ordinance if adopted would nevertheless be invalid except those shown as Numbers (4) and (5) in the first part of this opinion. These contentions present questions which we do not reach and will not determine at this time. It may be added, in passing, that the contention that

Article 1269m is void because it is a local or special law passed in violation of

Article III,

Section 56 of the Constitution, was directly before this Court in the case of Fire Department of the City of Ft. Worth v. City of Ft. Worth, 147 Tex. 505, 217 S.W.2d 664, and -although the Court did not write on the question the contention was necessarily overruled when the Court declared the act constitutional.

Since the subject matter of the proposed ordinance is legislative in charac- ' ter and neither the general law nor the City Charter of the City of Austin has withdrawn from the people the right to deal with the subject matter thereof under the initiative provisions of the Charter, it follows that the respondents are undertaking to exercise only such rights as are legally theirs.

When the' people exercise their rights and powers under the initiative provisions of a city charter and thereby become the legislative branch of -the city . government, the members of the City Council, like other city officials and employees, become ministerial officers in the legislative process, burdened with the mandatory obligation of performing the duties imposed upon them incidental to carrying out the initiative procedure.

There is nothing in the charter that qualifies the mandatory duty of petitioners in the calling and holding of initiative elections so that they may decline to hold those which in their opinion might result in" the adoption of void ordinances. Furthermore, the duty to call and hold the election is one imposed by the charter in order that the legislative machinery of the city may function to the full extent of its intendment. It was this phase of the factual background that appears to have been chiefly responsible for the refusal of this Court to issue a writ of injunction in the case of City of Dallas v.

Dallas Consolidated Electric Street Ry. Co., supra, to prevent the canvass of the votes cast in an initiative election. The opinion of the Court in that case, much of which is quoted in the opinion of the Court of Civil Appeals in this case, clearly points out that there should be no judicial interference with the legislative process.

If the courts into whose province the duty is committed by the Constitution to adjudge the validity or invalidity of municipal legislation will not themselves interfere with the legislative process how could they justify their inaction while ministerial officers, usually without judicial training, interrupted that process ? The same cogent and persuasive reasons which prompt judicial noninterference with the legislative process should compel the courts in proper cases to prevent interference by others with that process.

There may be those whose political philosophy cannot accept the initiative and referendum as a sound investment of political power. But the wisdom of the initiative and referendum is not the question here; the question of their wisdom was foreclosed when they became a part of the Austin Charter. They are as much a part of the Charter as is the provision for a City Council.

Once the people have properly invoked their right to act legislatively under valid initiative provisions of a city charter and the subject matter of the proposed ordinance is legislative in character and has not been withdrawn or excluded by general law or the charter, cither expressly or by necessary implication, -from the operative field of initiative, members of the City Council and other municipal officers should be compelled by the courts to perform their ministerial duties so as to permit the legislative branch of the municipal government to function to the full fruition of its product, though that product may later prove to be unwise or even invalid.

The Charter of the City of Austin requires the publication of penal ordinances by the City Clerk before they may become effective. If the City Council should pass a penal ordinance, can it be thought that the courts would stand idly by and permit the 'City Clerk to interrupt the legislative process by refusing to publish the ordinance because he thought it invalid? We think not.

If the courts will compel ministerial officers to act to complete the legislative process when the City Council acts as the legislative body of the City they ought also to act to compel ministerial officers to complete that process when the people act as the legislative branch of the municipal government. The Texas cases relied upon by petitioners for their contention that all questions touching the validity of the proposed ordinance ought to be adjudicated in this proceeding and the writ of mandamus refused if the ordinance be found to be invalid are McCutcheon v.

Wozencraft, 116 Tex. 440, 294 S.W. 1105; Holman v. Pabst, Tex.Civ.App., 27 S.W.2d 340 (writ ref.) and McCarty v. Jarvis, Tex.Civ.App., 96 S.W.2d 564 (writ dism.). The McCutcheon case has already been mentioned in this opinion. In that case this Court refused 'the issuance of a writ of mandamus to compel officials of the City of Dallas to call and hold an initiatory election so that the electorate of the City of Dallas might vote on a proposed ordinance granting to a bus company a franchise to use city streets. The proposed franchise had been refused by the City Commission before the initiative petition was filed.

A reading of the opinion of the court will reflect that a general law expressly conferred upon the City Council exclusively the authority to pass the ordinance, thereby by necessary implication withdrawing the matter from the field in which the initiatory process was operative. Moreover, the general law expressly provided for a referendum vote on such ordinances only when the City Commission had voted to grant the franchise, here again by necessary implication withdrawing the right to a vote when the franchise was refused by the City 'Commission.

The opinion in the McCutcheon case is in complete harmony with the rule we have announced in this case. The case of Holman v. Pabst is also in harmony with and not contrary to the rule we have announced. That case did not involve the legislative powers of the people under the initiative provisions of a city charter but it did involve their legislative powers in a local option election. In that case the Commissioners Court refused to call and hold a local option stock election on the ground that the law providing for the election was invalid.

The Galveston Court of Civil Appeals, in an opinion approved by this Court through the refusal of a writ of error, held void the act imposing the duty to call and hold the election and refused to require the holding thereof. In other words, there was no valid law imposing any ministerial duty on the officials. In the case of McCarty v. Jarvis three distinct questions were decided by the Ft. Worth Court of Civil Appeals, one of which was identical with the question here. By dismissing an application for writ of error this Court declined to place its full approval on all the holdings there made.

The case therefore has no precedential value on the question involved here, and in so far as the holding in the McCarty case is in conflict with our holding in this case, the McCarty case is overruled. In addition to the Texas cases here reviewed both parties cite a number of cases from other states. We see no need to review these cases. The judgment of the Court of Civil Appeals is affirmed. SMEDLEY, GARWOOD, GRIFFIN and WILSON, JJ., dissenting.