C. E. FLETCHER et al., Plaintiffs in Error, v. W. B. HOWARD et al. Defendants in Error, 40 S.W.2d 52

SHORT, O. The Attorney General of the state has filed a motion for rehearing on behalf of the defendants in error in this case. We have given this motion careful consideration, and believing that the original opinion is correct, we overrule the motion.

However,. in view of the serious contention made that a certain portion, which we have italicized, of a certain paragraph in the opinion, restrains the highway commission of the state of Texas from locating and designating state highways within this state, which, of course, the Supreme Court could not do, and which another portion of the opinion expressly declares, we deem -it proper to say that the language emphasized was used in view of the issues made by the pleadings, having reference only to the location of the original highway No. 4, and having no reference whatever to the new highway No. 4, as located and designated by the state highway commission.

This paragraph, a portion of the language of which we have italicized, is as follows: “ ‘The defendants who compose the Highway Commission likewise be restrained from appropriating any part of said proceeds towards the building and paving of any other roads than said highways Nos. 4 and 5 as they .exist and did exist on and prior to December 21, 1927; further, that they he restrained from changing the location of said highway No. ⅛ as it is and was designated and used on and prior to December 21, 1927.’ ”