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

spondent as can be asked, though it is in
sisted by the Encouragement that tn,
burden of showing such fact is upon re
spondent, and this position appears TO b,
supported by authority. Estate VS.. Van
derbilt, 81 Ohio, GA
But, considering it as stated, is such {
connection the contingency which, by the
terms of said special law, confers upor
the Missouri, Kansas aud Texas R 4ilwaJ
company the power to purchase! 1t Ii
thought not.
Corporations are the creatures of the
law, and have only such powers as are ex
pressly conferred upon them by the gov,
eminent, or as necessarily follow by i'm
plication. The authority given is to sci
to, consolidate with, or purchase any con
Meeting road.
This, take it, means any road connect
ing with either of the two roads the legis
lature authorized said company to build
If it be construed to include road con.
Meeting with road purchased by said
| company, then, by the same process OF
reasoning, it would include any road con
Meeting with such connecting road, and
the right to purchase would be limited
only by the number of such connections
however remote from the roads the COM
pany was authorized to construct.
This construction, in my Judgment,
would be perversion of the authority
granted by the state, and would dispense
with the very condition which the legisla-
ture intended should exist as prerequi-
site to the acquisition by that company of
any other railroad in this state. 1t would
vest in the Missouri, Kansas and Texas
Railway company power to purchase
nearly every railroad in the state.
AS shown by the evidence, neither the
Missouri, Kansas and Texas road as CON
structed according to the authority
granted by the legislature, nor the road
operated by said company from Denison
to Mineola, run in the same general direo-
zion with the East Line and Red River
road, which is required by respondents
charter to enable it to sell.
Respondent admits that the Missouri
Kansas and Texas Railway company is
chartered and organized under the laws OF
Kansas.
The conclusion is therefore reached
that the sale under consideration was
ultre wires and unlawful. First, because
the roads do not run in the same general
direction; second, because they were not
connecting roads within the mean
ing of the statute authorizing the
Missouri, Kansas and Texas Rail
way company to purchase; third, il
they were connecting roads, they
were also competing roads; fourth, the
purchasing road was, and is chartered ant
! organized under the laws of another state
If said sale and consolidation was un
lawful, then respondents failure to keel
a public Office in the state and on the lint
| of it's road and the failure of its stock
| holders and directors to hold annual meet
| ings on the line of its road are violation:
of the Constitution and statutes of th
state. (Const. art. 10, sec. 3, R. s., arts
Ais, 4157 and 1852
The road bed and track between Green
vile and Mckinney are shown to have beef
in such bad condition for year or NOR
as to come within the common law defnl
ton of mis-user, for which, if l am cor
rect in holding the sale to be illegal, re
spondent is responsible.
The connection of respondents roa'
with the International Traffic association
appears to have been in violation of SEC
ton B of the Constitution.
The fictitious increase of the stock an
bonds of railroad is prohibited by stat
ute, designed in the main, perhaps for tn
protection of stockholders, though sue
increase if used as basis upon which Il
fix traffic rates, would affect the public
and the law requiring railroad companie
to report the amount of their capita
stock, bonded indebtedness, etc., to tn
state comptroller indicates that the legif
lature regarded the condition of such col
porations in these particulars as of publ
concern. Or. s. arts. 4154, 4155, 4249.)
Second-For this unlawful transfer an,
surrender of its railroad and franchises t.
competing railway company and tn
misuse and abuse of said road and fran
ehises by the purchasing company, a
shown above, should respondents charte
and corporate franchises be annulled
There is not constitutional nor statutor
provision of law in this state expressl
prescribing this as penelty for such j
legal acts.
The common law upon this subject
thus stated by standard author: 9Th
charter of a corporation may be forfeite
either for non-user or m1s-user OF II
franchises; and in determining the quel
ton the same principles of forfeiture o
failure to perform conditions which al
applied to grants to individuals are to b
applied to grants of corporate power
The ingredient of corrupt motive is ne
necessary, but is sufficient to uphold
forfeiture if the performance of cond
ton is neglected or designedly omitte'
But it is not every failure to perform III
duties imposed upon corporation thu
will work forfeiture of its franchise
There must be some plain abuse of pow'
= by which The corporation fails to fulfill Il
the design and purpose of its organic
| ton, and the acts of 'mis-user or non-u
must relate TO matters which are OF Il
, essence of the contract between the stat
. and the corporation, and they must
/ willful and repeated" woods Railwa
Law Vol. 3, Sec. 1891
} Another text writer says: 1T Is OF IL
I very essence of corporation, as poll
ical existence or abstraction, that it shou
3 always be liable to dissolution by 81
= render of its corporate franchises or by
8 forfeiture of them, either by non-user
] mis-user." (Redfield's Law of Railway
: Vol l, P. 726 }
Section %, article of the state Cons
? tuition made il the duty of the attorne
8 general, whenever sufficient cause exist
f to seek judicial forfeiture of charter
n nnlesa otherwise expressly directed by la