Buford v. State

GRAY, Justice

(concurring).

It is with some difficulty that’ I agree with the conclusion reached by the majority that Art. 842g bars a recovery by appellants. I do not agree with Chief Justice ARCHER that the defenses of lach-es and stale demand are available to the State here. I do agree that the issue of whether the cause of action is barred must be decided by the application of Art. 842g, and the Concurrent Resolution wherein the Legislature expressed its intent to relieve appellants of burdens imposed by Art. 842g. It cannot be questioned that the Legislature had the authority to suspend this. *375law. Art. 1, Sec. 28, Texas Constitution. However Justice Hughes has held, correctly I think, that the concurrent resolution was not effective to suspend Art. 842g, a general law.

The Legislature had the right to prescribe the terms and conditions of the right to sue the State. 38 Tex.Jur. p. 660, Sec. 59. It also had authority to, but did not, prescribe the period of limitation applicable to the cause of action by allowing a reasonable time in which to bring the suit. 28 Tex.Jur. pp. 80 and 81, Secs. 6 and 7. Art. 842g meets these requirements by giving parties two years within which to bring their suit. Thus a period within which the remedy must be pursued was fixed and that period was complete before this suit was filed. Art. 842g and the joint resolution deal with the same general subject [that is the bonds in question] and it is our duty to harmonize them if possible. 39 Tex.Jur. pp. 252 and 253, Secs. 134 and 135. The joint resolution merely gave appellants a right to sue but it did not provide a remedy.

Unquestionably the joint resolution gave appellants the right to sue and thus the meaning and application of the general rule that their cause of action then accrued is presented. To me it appears that the only answer to such inquiry is that appellants’ right to sue the State accrued with the right of all holders of Texian bonds under Art. 842g. However that right expired after two years and appellants were then without the right to sue the State and test the validity of their claim under any law as well as to have determined the question whether Art. 842g was a valid enactment and whether its provisions were applicable to their cause of action. We all agree that it was a valid statute and that its provisions are applicable to appellants’ alleged cause of action. This being true and the time provided in the statute for bringing suit having expired the jurisdiction of the court to hear the cause had ceased. Texas Mexican Ry. Co. v. Jarvis, 80 Tex. 456, 15 S.W. 1089, 1091. Appellants then could not sue the State and test the statute, Art. 842g, except by consent as given by the joint resolution. However since their cause of action accrued under the general law (Art. 842g) a recovery is barred by the State’s plea of four years limitation.

My stated conclusions make it unnecessary to express my opinion on matters not specifically mentioned herein.