If it should be held that venue cannot be raised by special exception, such conclusion could not affect the decision of the Court of Civil Appeals in remanding this cause and ordering it transferred to the proper county, for the reason that the record shows that a plea of privilege was filed and acted on by the trial court. As the action of the court in overruling the plea of privilege and in overruling the special exception raising the point clearly appears from the record, no bill of exception was necessary to preserve the point and present it in the appellate court. Vernon Sayles' Statutes, Art. 2062; Withers v. Crenshaw, 155 S.W. 1189; Crowell School District v. Bank, 163 S.W. 339; Western Union Tel. Co., v. Forest, 157 S.W. 204; Gibson v. Pierce, 146 S.W. 983; Harbinson v. Cottle County, 147 S.W. 719; St. L.B. M.R. Co. v. Webber, 210 S.W. 677. When any informality exists in the manner of bringing the case in the Court of Civil Appeals, all parties are required to file their objections by motion within thirty days after the record is filed, and failure to do so would be deemed a waiver of such errors or defects that are not jurisdictional. Rule of Courts of Civil Appeals, 8, 9 and 22, 142 S.W., XI and XII; Tompkins v. Pendleton, 160 S.W. 290; McLane v. Haydon, 178 S.W. 1197; Crawford v. Wellington Ry. Committee, 174 S.W. 1004; Royal Ins. Co. v. Texas G. Ry., 116 S.W. 46; Railway v. Stoker, 102 Tex. 60; Railway v. Waggoner, 102 Tex. 260 [ 102 Tex. 260]; Martin v. Rutherford, 153 S.W. 156.
App.), 291 S.W. 868; Clem v. Evans (Com. App.), 291 S.W. 871, 51 A. L. R., 1135; Withers v. Crenshaw, 155 S.W. 1189; Newton v. State, 98 Texas Crim. App., 582, 267 S.W. 272; Reitler v. Harris, 223 U.S. 437, 56 L.Ed., 497; Hawkins v. Bleakly, 243 U.S. 210, 61 L.Ed., 678; Hawes v. Georgia, 258 U.S. 1, 66 L.Ed., 431; Minneapolis St. L. R. R. Co. v. Minn., 193 U.S. 53, 48 L.Ed., 614; extended note, 51 A. L. R., 1139, and following. 12 In determining that land applied for was unsurveyed school land and therefore subject to sale under the terms of Article 5323 and in selling it under that law, the Commission was not exercising or attempting to exercise judicial power.
It was unnecessary for appellee to introduce this ordinance in evidence as the certificate, by the terms of the statute, when introduced in evidence established a prima facie case. Taylor v. Boyd, 63 Tex. 533; Withers v. Crenshaw, 155 S.W. 1189; Dillon v. Whitley, 210 S.W. 329; City of Webster Groves v. Reber (Mo.App.) 212 S.W. 38; Newman v. Warner-Quinlan Co. (Okla.) 177 P. 375. As it would be presumed in the absence of the ordinance that it was sufficient, and the burden was on appellants to overcome such presumption, they could not be injured by the introduction in evidence of such ordinance.
If the legislature is given authority to legislate upon a subject by a provision of the Constitution other than Section 56, Article III, such authority carries with it the right to enact all provisions which could legitimately be embraced in the bill if Section 56 were not a part of the Constitution. Smith v. Grayson County, 18 Texas Civ. App. 153[ 18 Tex. Civ. App. 153]; City of Dallas v. Western Elec. Co., 83 Tex. 243 [ 83 Tex. 243]; Tex. Sav. Real Est. Ass'n. v. Heirs of Pierre, 31 S.W. 426; 10 Texas Civ. App. 453[ 10 Tex. Civ. App. 453]; State v. Hanscom, 37 S.W. 453; R'y. v. Galveston, 96 Tex. 520; Withers v. Crenshaw, 155 S.W. 1189; Cravens v. State, 57 Texas Crim., 135, 122 S.W. 29, 136 Am. St. Rep., 977; City of Oak Cliff v. State, 77 S.W. 24; Altgelt v. Gutzeit, 187 S.W. 222. The contemporaneous and particular construction of a statute by those whose duty it is to carry it into effect, though not absolutely controlling, is entitled to great weight by the court.
Ilseng v. Carter (Tex.Civ.App.) 158 S.W. 1163; Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189 (writ of error dismissed for want of jurisdiction); Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 471 (writ of error denied); Alvord National Bank v. Waples-Platter Gro. Co., 54 Tex. Civ. App. 225, 118 S.W. 232; Dobson v. Zimmerman, 55 Tex. Civ. App. 394, 118 S.W. 236; Bishop v. Mount (Tex.Civ.App.) 152 S.W. 442. It follows, therefore, that the special exceptions to plaintiff's petition must be considered as having been waived by the defendants, and the assignments of error based thereon are accordingly overruled.
The assignment must be overruled on the ground that the record discloses no order of the court sustaining any exception of the character specified. The record, it is true, contains a bill of exception, which recites that the court erred in sustaining an exception to one of defendants' allegations relating to the location of the land, but the question cannot be presented in such way as we had occasion to decide in the case of Withers v. Crenshaw, 155 S.W. 1189, in an opinion not yet published, bills of exception being expressly prohibited by rule 53 "to the judgments of the court rendered upon those matters which constitute the record proper in the case." 102 Tex. xliv, 142 S.W. xxi.
District court rule 53 (142 S.W. xxi); Jackson v. E. L. Rice Co. (Tex.Civ.App.) 295 S.W. 352; Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 469; Ilseng v. Carter (Tex.Civ.App.) 158 S.W. 1163; King-Collie Co. v. Wichita Falls Warehouse Co. (Tex.Civ.App.) 105 S.W. 748; Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189; Southern Casualty Co. v. Morgan (Tex.Civ.App.) 299 S.W. 476; Alsabrook v. Bishop (Tex.Civ.App.) 295 S.W. 646. We doubt, however, if appellee's petition is sufficient to state a cause of action under either of the two theories mentioned. If so, an error of a fundamental nature is involved which requires our notice, even in the absence of an assignment.
This matter was fully considered in Daniel v. Daniel (Tex.Civ.App.) 128 S.W. 469. To the same effect see Withers v. Crenshaw (Tex.Civ.App.) 155 S.W. 1189; Ilseng v. Carter (Tex.Civ.App.) 158 S.W. 1163; King-Collie Co. v. Wichita Falls, etc. (Tex.Civ.App.) 205 S.W. 748, and cases there cited. In view, however, of retrial, it is not improper to say that the petition is objectionable in the particulars indicated.
The only proper showing for such a judgment would be an order to that effect appearing in the minutes of the court. Withers v. Crenshaw, 155 S.W. 1189. Reversed and remanded in part; affirmed in part.
If the authority to legislate by special act upon a certain subject is given by a provision of the Constitution other than section 56, art. 3, such authority carries with it the right to enact all provisions which could legitimately be embraced in the bill if section 56 was not a part of the Constitution. Smith v. Grayson County, supra; City of Dallas v. Western Electric Co., 83 Tex. 243, 18 S.W. 552; Texas Savings Real Estate Ins. Ass'n v. Heirs of Pierre, 10 Tex. Civ. App. 453, 31 S.W. 426; State v. Hanscom, 37 S.W. 453; Railway v. Galveston, 96 Tex. 520, 74 S.W. 537; Withers v. Crenshaw, 155 S.W. 1189; Cravens v. State, 57 Tex.Cr.R. 135, 122 S.W. 29, 136 Am.St.Rep. 977. The authority to enact special road laws carries with it the right to regulate the affairs of the county in all such matters as may appropriately be connected with or subsidiary to the object of creating an efficient road system.