
    BEAUMONT, S. L. & W. RY. CO. v. STATE.
    (No. 6722.)
    (Court of Civil Appeals of Texas. Galveston.
    Dec. 15, 1914.)
    1. Railboads <§=>231L-Maintenance ox Station — Action fob Penalty — Sufficiency of Evidence.
    In an action to recover the statutory penalty for violation of Rev. St. 1911, arts. 6592-6594, requiring railroads to keep the water-closets at stations in a reasonably clean and sanitary condition, evidence held not to warrant a finding as to the length of time that a closet had been in an unsanitary condition.
    [Ed. Note. — Por other cases, see Railroads, Cent. Dig. §§ 764-772; Dec. Dig. <§==>254.]
    2. Penalties <§=>2 — Constitutionality of Statute — “Public Money.”
    Rev. St. 1911, arts. 6592-6594, requiring railroads to keep in a reasonably clean and sanitary condition suitable and separate water-closets for both male and female persons within each passenger station, or at a reasonable distance therefrom, article 6594 of which entitles the county attorney, in suits brought thereunder, to one-fourth of the penalty recovered as a commission, and the county road and bridge fund to the remainder, do not violate Const, art. 3, § 51, declaring that the Legislature shall not make any grant of public money to any individual, association, or corporation; since the term “public money” means money received by officers of the state in the ordinary processes of taxation, etc., and does not apply to money recovered as a penalty.
    [Ed. Note. — For other cases, see Penalties, Cent. Dig. §§ 2, 11; Dee. Dig. <§=2.
    For other definitions, see Words and Phrases, First and Second Series, Public Money.)
    Appeal from District Court, Liberty County; J. Llewellyn, Judge.
    Suit in behalf of the State of Texas against the Beaumont, Sour Lake & Western Railway Company. Judgment for plaintiff, and defendant appeals.
    Reversed and remanded.
    Andrews, Streetman, Burns & Logue, Coke K. Burns, and W. L. Cook, all of Houston, for appellant. C. H. Cain and Marshall & Harrison, all of Liberty, for the State.
   McMEANS, J.

This is a suit brought in behalf of the state of Texas by the county attorney of Liberty county against the Beaumont, Sour Lake & Western Railway Company to recover statutory penalties for the alleged violation of articles 6592-6594, Revised Statutes 1911, requiring each railroad corporation in this state to keep in a reasonably clean and sanitary condition suitable and separate water-closets or privies for both male and female persons at each passenger station on its line of railway within or at a reasonable distance from its depot, for the accommodation of its passengers received or discharged from its cars thereat, and of its patrons and employes who have business with the railroad corporation thereat, and imposing a penalty of $50 for each week for the failure to so keep them. Plaintiff alleged the failure of the defendant to comply with the requirement of the statute at its station of Hull, in Liberty county, to keep tbe water-closet there situate in a reasonably clean and sanitary condition for tbe period of two years.

Tbe case was submitted to tbe jury upon special issues, and, upon tbe coming in of tbé verdict, a judgment was rendered tbereon for $5,200 in favor of the state and against the railway company, from wbicb tbe defendant, after its motion for a new trial bad been overruled, bas appealed.

Tbe jury, in answer to special issues submitted to them, found that defendant’s water-closet at Hull bad been in a condition not reasonably clean or sanitary for a period of 104 weeks. This finding is attacked by appellant by its first assignment of error, in which it makes tbe contention that tbe evidence is wholly insufficient to support such finding.

But three witnesses were introduced in behalf of tbe plaintiff. Tbe first was L. P. Palmer, a farmer residing about a mile from 'the town of Hull. He testified that at times be had occasion to go to Hull pretty often, and sometimes it would be a good while — sometimes two or three times in 1 week, and other times bis visits to tbe town would be 2 or 3 weeks apart; that during tbe times be visited the town be had occasion, once in a while, to go into tbe defendant’s water-closet. It is shown by bis testimony that each time be b,ad occasion to go into tbe closet be found it in an exceedingly filthy and unsanitary condition. He testified that it would be impossible for him to tell bow often be visited tbe closet during tbe period be was testifying about, but that be was there “every once in a while; perhaps it would be once a month, or something like that.” He was not asked, nor did be say, whether on each of these visits tbe closet bad tbe appearance of not having been cleaned since bis last preceding visit.

The next witness was Claude Mitchell, Sr., who upon direct examination testified that for about a week be bad occasion to use tbe closet daily, and that when be first went into it be found tbe closet on tbe ladies’ side in a very unclean and unsanitary condition; that be cleaned that side out, and used lime freely as a deodorizer, but that be never saw tbe inside of tbe closet intended for tbe use of males. On cross-examination be testified:

“I think my actual knowledge of that closet covers about five days. I never used it an entire week, and after the time I quit using it I cannot say anything about its condition.”

Tbe third witness was J. M. Barrow. He testified that be never saw tbe closet but once, and that time bis attention was called to it by tbe witness Palmer. At that time it was in an unclean condition.

Tbe jury, in answer to special issues, found that the closet had been in an unclean and unsanitary condition for tbe period of 104 consecutive weeks, and upon this finding tbe court entered judgment against defendant for tbe penalty of $50 per week for this entire period, aggregating $5,200.

We are of the opinion that tbe evidence did not warrant tbe finding of the jury or tbe judgment rendered thereon. Tbe result of tbe testimony of Palmer is that about once a month for 24 months be found tbe closet unclean and unsanitary. Tbe other witnesses testified that their knowledge of it covered a period of 5 days and 1 day, respectively. It was not shown by Palmer that on tbe occasion of bis visits tbe closet did not have tbe appearance of not having been cleaned since bis last preceding visit. We think that this evidence is not of such definite character as to justify the jury in finding that tbe closet bad been in an unclean and unsanitary condition for 104 weeks consecutively.

By its third assignment appellant complains of tbe action of tbe court in refusing to sustain its general demurrer to plaintiff’s petition. Its contention is that articles 6592-6594 of tbe Statutes are unconstitutional, because of tbe provisions in article 6594, which are to tbe effect that in ease of recovery in suits brought under tbe article tbe county attorney shall be entitled to one-fourth thereof as commission for bis services in prosecuting tbe suit, and tbe remainder thereof shall be paid into tbe road and bridge fund of tbe county. Tbe claim is that these provisions are in contravention of section 51 of article 3 of tbe Texas Constitution, which reads as follows:

“Sec. 51. Tbe Legislature shall have no power to make or grant or authorize the making of any grant of public money to any individual, association of individuals, municipal or other corporations whatever.”

We are of tbe opinion that tbe language “public money,” as used in tbe section quoted, cannot be applied to money received as a penalty for the violation of tbe statute. Tbe state is a nominal party only, and by tbe express provisions of tbe statute tbe recovery belongs to tbe road and bridge fund of tbe county, except that portion of it allowed to tbe county attorney for bis services or commissions, and never at any time was tbe property of tbe state. “By ‘public money,’ as therein used, tbe framers of the Constitution most probably meant moneys received by officers of tbe state, * * * derived in tbe ordinary processes of taxation, and in other ways permissible under the Constitution.” Tarrant County v. Butler, 35 Tex. Civ. App. 426, 80 S. W. 659. It seems to us that the provisions of tbe statute referred to directing tbe payment of one-fourth of tbe recovery to tbe county attorney for bis services and tbe balance into tbe road and bridge fund of tbe county can in no reasonable sense be said to be a grant of public money to an individual or a municipal corporation. “At least it is not so clearly so as that we feel willing to declare the act unconstitutional on this ground.” Tarrant County v. Butler, supra. The assignment is overruled.

For tbe reason that, in our opinion, tbe evidence was not sufficient to justify a judgment for penalty for the violation of the statute for the full period of 104 weeks, the judgment of the court below is reversed, and the cause remanded.

Reversed and remanded. 
      <g=>For other oases see same topic and KEY-NUMBEP. in all Key-Numbered Digests and Indexes
     