(concurring).
Believing that the nature of the suit was as described by the State in its pleading, I concurred in the original opinion by this Court. 353 S.W.2d 915. I dissented on re-hearing only because I learned from an unreported opinion that the Supreme Court had passed on the question of the Trial Courts jurisdiction. Neither this opinion nor the only other case to be found on the subject, Lally v. State, Tex.Civ.App., 138 S.W.2d 1111, was cited by the Supreme Court when it reversed this Court, 361 S. W.2d 191.
I believe when this case was before this Court, and I believe now, that the nature of this suit is as described by the State, “a suit for taxes.”
The problem presented is to reconcile the two constitutional provisions involved, each being peremptory in nature. Section 16 of Art. V of our constitution, Vernon’s Ann. St. gives the County Courts “exclusive” jurisdiction of suits where the amount in controversy exceeds $200.00 and does not exceed $500.00.
Sec. 8 of this same Article gives to the District Courts original jurisdiction of suits by the State to recover penalties. How are those constitutional provisions to be reconciled? The problem is not new. It has been repeatedly resolved by application of *292the rule well stated by Judge Powell for the Commission of Appeals in Pierce v. Foreign Mission Board, 235 S.W. 552, in these words:
“ * * * the primary and essential nature of a suit, and not its incidental character, determines the jurisdiction of the courts relative to it.”
See Zamora v. Gonzalez, 128 S.W.2d 166, San Antonio Civil Appeals, writ ref.; Smith v. Armes, 208 S.W.2d 409, and Hudson v. Nowell and Son, 8 S.W.2d 778, both by the Fort Worth Court of Civil Appeals.
No one could gainsay the fact that this is primarily a suit for the collection of delinquent taxes. The penalties sought are derivative only. They flow from and their exaction are wholly dependent upon the tax delinquency.
The cases cited by the Supreme Court on this question are of no help in determining it. There is no question here as to what is or what is not a penalty, as in Jones v. Williams, 121 Tex. 94, 45 S.W.2d 130, 79 A.L.R. 983. The $56.00 sued for here is clearly a penalty imposed for failure to pay taxes. The other case cited, Aulanier v. Governor, 1 Tex. 653, was wholly a suit for recovery of a penalty; no other recovery was sought. Its nature could not be doubtful.
Under the opinion of the Supreme Court, or its implications, suit by the State for $499.00 taxes and a 1 cent penalty must be brought in the District Court despite the constitutional provision giving exclusive jurisdiction to the County Court of the $499.00 claim for taxes. This permits a very small tail to wag a very large dog.
The Supreme Court in remanding the case to this Court states:
“The case of Jones v. Williams, supra, decides that the penalty and interest added to delinquent taxes is not an incident of the taxes, but is a separate and distinct item provided by the Legislature as a punishment for failure to pay taxes, prior to delinquency, and therefore a ‘penalty’ within the meaning of the Constitution. It follows that this suit was properly brought in the district court of Travis County, Texas.”
Does this mean that this Court should only render appropriate judgment as to the penalty sought and not as to the claim for taxes? The Court has said this is a suit for a penalty. This is conceded. It is also a suit for taxes, a suit without the jurisdiction of the Trial Court. As to this phase of the case the Supreme Court has given us no instructions. As will appear, however, from the Court’s opinion herein, we have decided all issues presented on their merits.
This is nominally a concurring opinion; actually, it is more in the nature of a petition for rehearing to the Supreme Court, none having been previously made to it. As such, it is not filed on behalf of any litigant, nor on behalf of this Court. It is filed only in the interest of continued stability in sound constitutional construction.
PHILLIPS, J., not sitting.