The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1888-03-29

corporate existence, the death penalty
and that this has not been waived.
Second-That for the violations of 500
tiops aud 6, Art 10 of the Constitution
and not keeping the principal Office in
the state, the extreme penalty has been
waived By legislative enactment substi.
tnting other punishments.
Th,rd-That if the dereiic ion of dutv
is not so great as to require forfeiture
of the corporate existence, a forfejtpra
and snnuling of the grants and immuni.
ties existing in tbs hands of Respondent
may be adjudged.
This brings US to the third query: Can
these penalties be enforced by quo war
rauto? Before proceeding to this it NAV
he well to refer to the position of counsel
for the respondent that the proper remedy
is by mandamUs, to compel performance
of these neglected duties.
Without deciding whether mandamus
would lie for such purpose (which seems
to be an open question:, it is sufficient
answer TO say that if both remedies ex-
listed, the legislature of 70 must have
been aware of the fact, and the election
made by them is binding on the courts.
At least, it is conclusive evidence OF
legislative intent not to waive the pro.
ceedirgs of quo warranto, and the proper
officer of the government, in the exercise
of the functions of his Office, having
elected to pursue such statutory remedy,
| it is not for the courts to deny it as mat
ter of law. He is entitled to his day in
court.
If the penalty of forfeiture of the cor
porate existence,if sought, there can be no
doubt as to an information in nature of
quo warranto being the appropriate pro-
ceeding.
The difficulty in this branch of the case
comes up in connection with the right, in
event no forfeiture of the charter is de.
clared, to annul the tax exemption. That
is if the proof should not develop neg
lect of duty to such an extent as to re-
quire forfeiture of charter, but a par
tial failure, could the court in this pro-
ceeding annul the tax exemption! A de-
cision of this matter is not necessary at
this time, but the attention of counsel ia
referred thereto as a possible issue aris-
ing on the trial, so they can be prepared
to inform the court correctly with regard
thereto, should occasion arise.
The Judgment on the demurrer is:
First-The general demurrer is over
ruled.
Second-The first specific exception is
overruled.
Third-That, 50 far as the violation of
sections and 6, srtlc!a 10, of the consti-
tuition, are set up, as special ground of
forfeiture, the second special exception is
sustained, but said allegations will not be
stricken out, but will remain as proper
matter of inquiry as to the alleged will
fitness of the other matters charged.
Fourth-Same order on the tn ird
special exception as on last preceding.
Fifth-The fourth special exception is
sustained.
Sixth-The fifth special exception is
overruled.
The case on its merits to stand for trial
on regular call of docket unless set down
, for day certain by consent of parties.
In closing, desire to thank counsel for
the relator, and respondent tor their very
able and helpful arguments and briefs.
, JOHN C. TONNES,
Judge IWenty-sixth District.
The STATE OF TEXAS,
, COUNTY OF TRAVIS.
l. JAS ?. Hart, clerk of the district
! court within said county and state, do
hereby certify that the foregoing contains
true and correct copy of the conclusions
5 OF law by the court on the demurrer as
same appears of file in this office in cause
5 ofo9 OF the state of Texas VS.. Inter
national and Great Northern Railroad com.
pany.
In witness whereof, l hereto set my
nand and official SEAL this, March "a, A. D.
'o30 JAS. P. HART,
LII CLERK DISTRICT COURT,
Travis COUNTY, TEXAS