The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1888-03-29
QUO WARRANTO.
Judge Townes on the international
Railway Company.
Ganeral Demurrer of Respondent
Overruled-The Attorney Gen
eral Thus Far Victorious.

on,,nsrv and sustained the petition OF
the relator in an opinion as follows:
The STAT. Of Tex,s ez rel In District Cop T OF
L6-G.N. R Roo. March Term, AID 1855
This is a proceeding by quo Warranto
in behalf of the state against the inter
national and Great Northern hallroau
company, setting out at length many al
legged violations of its corporate duties
and obligations. ard seeking forfeiture
Of lis charter and franchises and the ap-
pointment of a receiver, and the enhull-
ing of the tax exemption enjoyed " 'alu
company.
lie respondent answers By general and
special demurrers.
The questions presented divide into
three general heads:
First-What are the respective rights
and obligations of the Parties toward esch
other:
Second-What penalty or penalties does
the law provide for violation OF these
rights:
Thrd-Can these penalties be enforced
in proceeding by quo warranto;
Taking up these subjec i'll the order
indicated, it is upquestionably true that
the parties bear to each other the relation
of mutual contractors, their rights and
Obligations being based on, and limited
by, the acts of the legislature of August .,
1870, and March 10, 1875, the first being
the original charter of the international
railroad, and the second the compromise
act incorporating the International ana
Great Northern Railroad company, and
construction of this contract, embraced in
these two acts, is essential to determi-
nation of this cause.
Thsse acts are to be construed together
insofar as they are consistent, each be-
ing of full force Insofar Is they conflict,
the latter controlling.
Taken together, they constitute an
irrepealable contract and agree
ment between the parties litigant in
this case, the terms and conditions of
which precedent and subsequent are bind
ing alike on both the obligations of which
cannot in any wise be weakened or i'm
pared, nor can either party thereto by
any act or omission of his add to the
obligation or duty of the other or take
from his own.
It is contended by the respondent that
this general principle of law is conclusive
of the case, because, as it asserts, the
grant of the franchises and lands and ex-
emptions provided in the act of 1875 were
in ompromise of an existing controversy,
and the sole further consideration of the
construction of the road as provided in
this act, all of which is admitted in the
inform alton to have been completed long
before the bringing of this suit, that their
considerst being past and fully exc
cuted, the respondent has vested absolute
and indefeasable rights in its charter
and exemptions, and is under no contract
nor obligation to the state to maintain its
road, the only authority left in the state
with regard thereto being such as is in.
c!uded in the general police power of the
government. which extends only to proper
regulation and not to the right to destroy
The relator contends that part of the
inducement for the grant of the chatter
and lands and immunities was the main
tenaBce of the road, and that such main
tenanCe Is one OF the conditions OF said
cortr&c-, q failure of which entities the
state TO withdraw its franchise and annul
its special grants of exception, holding
first that this Obligation to maintain is
express on the face of the contract, and
second, that if not express-yet a part
thereof by implication of law. From this
it is apparent that the issue in
volved is not the right OF
the state By subsequent legisla-
tive enactment or judicial procedure tc
impair the obligation of the contract
existing between the parties, or to engraft
new conditions thereon but what are the
rights and remedies under the contract SO
made by the parties at the time.
After a careful examination
of the acts I fail 20 find any
express obligation OF the part of respond
ent TO maintain its road there is express
authority for it so TO do, but no specific
express promise on its part to that effect
Is such obligation implied?
The law existing at the date of the pas
sage of these acts respectively became a
part of said contrac: in every respect moi
IN conflict Herewith, (Robinson VS.. Magee
9 Cal. S3-S5) This law so forming part
of the contract would be the constitu-
tioual and statutory provision of this
state then existing. and the constitution
of the United States, and the common Law
so far as not Inconsistent Herewith.
So far as l have been able to ascertain
there was not at either date $50 or 1875
any Constitutional CT statutory provisions
in force in this state requiring the main
tenanCe of railroads by corporations au-
thorized to construct and operate them;
there were no provisions at all referring
to this matter.
At common law il is a tacit condition
of every grant Of incorporation that the
grantee she'll act up TO the end and design
for which il IS co,s-ructed;" I'D Wood
on railways, page 1713) 1T is the i'm
piled condition that the company will, at
all times, maintain the road as thor
ouzhfare." (MoroVitz on corporations.
sections 4S5 and 4S6, 1925, 1914 and
1867
ITO maintain and operate its road is
the condition and consideration dpon
which the company receives its grants
and franchises" State VS.. Railroad COM
pauy, % American and English railroad
cases, 400
This principal of the common law en-
tered into, and IS now part, of the con-
tract between the parties and the res pond
ent is now under contrsctual obligation,
to maintain its road in such a reasonable
degree of efficiency as to meet the euds OF
its creation, and failure to do so is q
breach of the contract.
\ failure to operate any considerable
extent of lis line and surrender
OF same to other corporations, with
out authority of law, would also
be breach of its contract, and same is