The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1889-05-30

other corporations in this state are doing
business in violation of sections 8 and 6
of article 10 of the State Constitution,
and directs him where probable cause is
found to exist to institute proceedings
by quo warranto or otherwise, against
such corporation, violating said sections
and articles of the Constitution aud to
enforce the penalties therefor.
Section of this act reads thus:
"If it shall be determined by the court
or jury trying any cause instituted under
the provisions of this act, that the said
sections and article OF the Constitution
are being violated, then the court
shall enter such decree as will
perpetually enjoin such violation,
and to the end of carrying into effect such
constitutional provision may appoint re
ceiver to take charge of the affairs of the
defendant corporation until such time as
the said corporation shall be reorganiz d
and in condition TO be operated within
said provisions of the Constitution"
1t will be seen that such of the acts
com plaiued of as con, tftute mis-user or
non user of respondents franchises are
common law grounds of forfeiture, and
they are also treated as such by article
|
ferred to, and in addition to these the act
of 1879 included as further cause of for
fixture, the exercise of any power not
conferred by law.
A charter is contract between the gov
ernnent ana the corporation, the terms
and conditions of which are binding upon
both and the law existing at the time the
franchise is granted becomes part of
the contract, and in this case in addition
thereto, respondent is subject to the pro-
visions of the Constitution and other
general laws enacted since its charter was
granted.
At common law it is an implied condi
ton of every grant of incorporation that
the corporation shall fulfill the design and
purpose for which it was created. @
Wood on Railways, SEQ. 1897
"The duty of railroad corporation to
maintain and operate its road is public
duty, and the chief end and object OF its
creation and existence and the condition
and consideration upon which it receives
it's grants and franchises from the state"
Estate vs.. Minnesota and Central Railroad
company, go American and English rail
road cases, 440)
So it seems clear that, if said sale by
respondent to the Missouri, Kansas and
Texas Railway company was unauthorized,
that 1t was thereby guilty of a
willful breach of one of the most essential
conditions of it's charter, amounting
clearly to misuse and abuse of its fran
chises, and which was an exercise of
power not conferred by law.
But it is commended by respondent that
if the sale and consolidation under con
sideration was not lawful, that the state
has fixed another and milder penalty, and
has thereby waived the right to demand a
forfeiture therefor. The contention is
, that the act of the legislature of March 4,
1886, prescribes an injunction for such
violations of the Constitution and breach
of the conditions of respondents charter
| as this sale involves, and that, therefore,
the right of forfeiture must be regarded
as waived.
= On this subject the common law is
clearly stated by Mr.. Taylor IN his Law
of CORPORATIONS, section AGO: "The state
may waive a forfeiture by express le9isla-
/ ton to that effect or by legislation reco9
nizing the existence of the corporation
In accordance with well
] settled rules the intent to waive or release
conditions, or to make a new grant, must
Q oe expressly declared or plainly to be in
D ferred from some act of the granting
, power" And high authority can be
> found holding that where the Legislature
8 has prescribed pecuniary penalty foI
! failure to discharge corporate duties that
Q the state is not thereby precuded from
: demanding forfeiture of the charter
= upon the same grounds. (rurnpike road
c VS.. State, 10 Md, 239.)
In considering this question it Is worthy
of note that as to the failure to keep al
, Office in the state, which is violation Oi
b section 3, article 10, of the Constitution
= that section requires the legislature tt
3 pass laws fixing suitable penalties to ell
r force the provisions of that section.
? or course the legislature has the powel
y to pass laws prescribing penalties for vic
Y lations of any of the sections of said arti
/ Gle of the CONSTITUTION, but it is not lie
auired by the Constitution to do so,excep
S for violations of said section g.
9 In obedience to the mandate of thu
i Constitution, the legislature has provided
g what it has deemed, suitable penalty fol
J. failure by railway companies to keep Al
n office in the state, and therefore, it ma!
Q perhaps be correct to hold thet the stat
. mas WalV6u ltb ElRub W uohoho " iOiioip
3. ure on that ground Estate We. Morris
It advance sheets =. W. Reporter, Vol. 2, No
a 6, p. 394.) But the determination of thi
l. question is not necessary in this case ant
1. no definite opinion is expressed upon il
e But considering the question of waive
It of forfeiture demanded by the state be
3. cause of the sale and transfer by respond
IT ent of its road and franchises to the Mis-
10 souri,, Kansas and Texas railroad, which i
l. in contravention of sections and Of ar
IT ticle 10 of the Constitution, no provision
le of that instrument is found requiring tn
% legislature to fix suitable penalty, no
'e has any such been fixed by that body, IN
y less it be held that the act of March q
1885, req uires the court toissue an injuuc
Ie ton, and that an injunction is penalty
t. Applying the we'll established rule, tha
d to operate against the state as waiver O
r. its right to demand forfeiture, the inten
a to waive must clearly appear either b
,r express words of waiver or by necessar
8, and obvious implication. Does the Las
named act of the legislature waive tn
l. penalty of forfeiture?
r The second section of this act require
g, the attorney general, when he has reaso
8, to believe that any railway, or other CO.
v. poration, is violating sections and c