(concurring).
I withdraw my former concurring opinion and substitute therefor the following:
Secs. 1 and 2, Art. 842g, V.A.C.S., provide:
*372“Section 1. The consent of the Leg- ' islature of the State of Texas is hereby given to all lawful holders of bonds issued under the Act of April 8, 1861, their executors, administrators and heirs to file and prosecute suit against . the State of Texas, Comptroller of Public Accounts and the State Treasurer for moneys alleged to be due in unpaid principal and interest on said bonds prorated to the extent only of the amount heretofore reimbursed to the State of Texas by the United States government for the principal and interest on said bonds.
“Sec. 2. Said suit shall be brought in Travis County at any time within two (2) years from the date of this Act.” 1
Appellants construe the latter portion of. this Section as meaning “that the bondholders could recover only to the extent of the actual reimbursement, properly prorated.” They then contend that they could not have recovered anything in a suit brought under that statute “ * * * because the United States government never reimbursed the State of Texas for the bonds in question. * * *» -phis fact; no reimbursement, they say is true as a matter of law since there is in existence no Act of Congress authorizing such reimbursement.
The State places a different construction on the latter portion of Sec. 1, supra, as shown by the following quotation from its brief:
“But Appellants say that House Bill 309, the General Law giving all holders of bonds, such as Appellants in this case, the right to sue-upon said bonds, does not apply to them or their bonds. They advance the theory that the phrase 'prorated to the extent only of the amount heretofore reimbursed to the State of Texas by the United States Government for the principal and interest on said bonds’ excludes them and their bonds from the application of House Bill 309, the General Law. The argument is wholly untenable. We think it clear that the Legislature meant that if any of the bonds had been reimbursed to the State of Texas by the Federal Government only to that extent would the bonds be subject to a proration. In other words, the State’s liability would be reduced to the extent of such proration. Of course, if there were no bonds reimbursed by the Federal Government, this provision would have no application. If Appellants were entitled to recovery at all, they would be entitled to full recovery in the absence of a proration. If a proration were shown it would be borne in common by all the bond holders, and not merely by Appellants’ bonds.”
I do not agree with either construction. In my opinion the proration provision of this Article constitutes a limitation on the amount of money which the Legislature would be authorized to appropriate for the payment of judgments obtained in suits filed under the Act and that it in no way lessened the right or duty of the holders of Texian bonds to bring suit within the time prescribed for the purpose of establishing the amount of principal and interest due on the bonds held by the owner.
The only cause of action which the holders of these bonds had was a suit to establish ownership of bonds and the amount due thereon. Money judgments against the State are not enforced by ordinary judicial process. Their payment is left up to legislative discretion and when made is customarily by an appropriation of money for that purpose.
In view of this it is my opinion that the right to sue provisions of Art. 842g are separate, distinct and severable from its proration or payment restrictions. See National Biscuit Company v. State, 134 Tex. 293, 133 *373S.W.2d 687, where an invalid appropriation to pay judgments obtained contained in a right to sue resolution was held severable.
Appellant’s cause of action accrued when consent to be sued was authorized by the State. State v. Elliott, Tex.Civ.App., 212 S.W. 695, writ refused. This is true, in my opinion, regardless of the attitude of the State towards payment of any judgment which might be obtained. The usual case is where the State has not indicated its policy towards payment. Litigants proceed on faith believing that the State will pay its just debts. Here the most that appears is that the State was mistaken in stating that it had received partial reimbursement from the United States Government for these bonds and restricting payment accordingly. The attitude of the State on becoming aware of this mistake is clearly shown by the subsequent legislative history of this matter, referred to in the Court’s opinion herein. H.C.R. 118, p. 1155, Acts 53rd Leg., Reg.Sess.1953; H.C. R. 44, p. 1585, Acts 55th Leg., Reg.Sess. 1957. These resolutions, in my opinion, indicate that the Legislature would have authorized payment of judgments obtained under Art. 842g and would have withdrawn the restrictions which-that Act imposed on payment. However this may be it is my opinion that appellants should have timely proceeded under Art. 842g, obtained judgment and thereafter sought its payment through legislative processes.
I realize that this construction of the statute is somewhat strained but it is supported upon the following general principles :
“A statute will not be construed so as to ascribe to the Legislature an intention of doing any unjust thing by its enactment, or of causing confusion thereby, if the statute is reasonably susceptible of a construction showing the Legislature’s intention to have been otherwise.” State Highway Department v. Gorham, 139 Tex. 361, 162 S.W.2d 934, 936.
“ * * * in case of conflict between two sections of an act, one section will not be held to repeal another unless such is the only construction that is permitted.” Vol. 39 Tex.Jur. p. 142.
“ * * * in construing a statute it frequently happens that a word or phrase must be added to, or eliminated from, a particular part or section in order to carry out the manifest intent, as disclosed by the entire enactment. In such circumstances, a word or phrase may be supplied or one term may be substituted for another, and repugnant superfluous or useless words and expressions may be disregarded.” Vol. 39 Tex.Jur. p. 185.
My construction of the statute would be manifest if the words “payment to be” are inserted immediately before the word “prorated.” This insertion is plainly justified under the above authorities.
Furthermore the ineffectiveness of this statute, if so it be, does not appear upon its face and is made to appear only upon the production of evidence.
When appellants' say that, as a matter of law, they could not have recovered anything in a suit brought under Art. 842g I presume they mean that the court trying such suit would have found from his own judicial knowledge that no Act of Congress authorized reimbursement of these bonds.2
Judicial notice merely supplants the necessity of producing evidence of the fact to be established. In Ohio Bell Tel. Co. v. Public Utilities Commission, 301 U.S. *374292, 57 S.Ct. 724, 729, 81 L.Ed. 1093 3 the Court said:
“Moreover, notice [judicial] even when taken, has no other effect than to relieve one of the parties to a controversy of the burden of resorting to the usual forms of evidence.” Citing Wigmore, Evidence, par. 2567, 1 Greenleaf, Evidence, 16th ed. p. 18. See also 31 C.J.S. Evidence § 13, p. 519.
Since appellants did not try out the issues of law and fact which they now raise, in a timely suit brought under Art. 842g, supra, where such issues 4 could have been adjudicated it is my opinion that the cause of action asserted here is barred by the terms of such statute unless validly waived by the State.
The fact that the period of limitation has run against assertion of a claim against the State would not prevent the State from waiving the bar of the statute. I quote from Caldwell County v. Harbert, 68 Tex. 321, loc. cit. 328, 4 S.W. 607, 612:
“As before said, there can be no constitutional objection to the power of the legislature to require a municipal subdivision of the state, such as a county, to- provide for and pay any just claim against it after the lapse of such time as would ordinarily bar the claim. That in favor of and against counties, limitation will run in the absence of some statute to the contrary, does not affect the question. The power of the state to recognize and pay a claim against itself after the lapse of any period of time can not be questioned on any constitutional ground; and the power of the legislature over counties in reference to such matters as only affect them as municipal subdivisions of the state through which local affairs are conducted, is just as broad.”
See also Limestone County v. Robbins, 120 Tex. 341, 38 S.W.2d 580; 53 C.J.S. Limitations of Actions § 24, p. 959.
If Art. 842g and the two concurrent legislative resolutions were of the same dignity it could be plausibly and convincingly argued, to me, that appellants’ suit was not barred by limitations. Art. 842g however is a general law which cannot be amended or repealed by a concurrent legislative resolution. Caples v. Cole, 129 Tex. 370, 102 S.W.2d 173, 104 S.W.2d 3; Humble Oil & Refining Company v. State, Tex.Civ.App.Austin, 104 S.W.2d 174, writ ref.
Since Art. 842g was invoked by the State as a defense in this suit it is my opinion that the Trial Court was bound to enforce this general law and to disregard the resolutions of the Legislature which were in conflict with it.
I express no opinion on any other question presented.
. Appellants’ suit was filed July 31, 1957.
. Courts take judicial notice of the nonexistence of a public Act of Congress. Ofield v. National Ben. Life Ins. Co., Tex.Civ.App.Texarkana, 293 S.W. 271.
. This case also states that such evidence may be disputed. The validity of this statement is questioned by eminent authority. See Vol. 1, Sec. 154, McCormick and Ray, Texas Law of Evidence, 2nd ed.
. Other possible issues which could have been there litigated are (I) The validity of the proration provision if its effect was to nullify the consent to sue (2) the effect to be given the failure to mention the proration provision in the Caption of the Act.