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


limits the judgment to be rendered to an
injunction, and second, that it contem-
plates q reorganization of the corporation
and resumption of business by it, which
they argue could not occur if forfeiture or
the death penalty be inflicted.
AS to the first position it ia not clear to
my mind from the reading of section
alone, and especially when considered in
connection with section 2, that the legisla
ture intended to restrict the judgment Of
the court to an injunction only.
The language used is that "the court
shall enter such decree as will perpetually
enjoin such violations of the Constitu-
tion."
Is this intended as a limitation upon
the power of the court to grant full relief
and adjudge higher penalty, or Is il a
requirement that it's judgment shall, at
least, and in effect, terminate the evil
complained of when shown to exist?
1t does not prescribe particular judg-
ment to be entered, but it declares in sub
stance that such decree shall be entered as
will, in the future, forever prevent such
violations.
Literally speaking, it may be true that
q reorganization of a defunot corporation
cannot be had, but it is also true that such
corporation can be rechartered and can
reorganize under such new charter, and it
is possible that the legislature used the
word "reorganize" in section in said act
in that sense.
At any rate this act of the Legislature 10
not free from ambiguity, and, therefore,
should not be made the foundation of an
implied waiver.
conclude, therefore, that the state has
not waived its right to forfeiture for the
violations of the Constitution and the
conditions OF its charter involved in said
sale by respondent to the Missouri, Kan
sus and Texas Railway company.
The only remaining question is Should
: the penalty of forfeiture be adjudged
against respondent, the essential charges
in the information being sustained by
proof, and that penalty not having been,
, waived except possible as to the failure
to keep an Office in the slater
, The respondent has transferred
its railroad and other physic al
property, together with all its corporate
franchises, rights and privileges to COM
| peting corporation in violation of the es-
. sential conditions of its charter and the
t express provisions of the Constitution.
= As result of this illegal transfer it has
IbuTTeuubTtu buo huhukO-
3 ment and control of its road and the use
Q of its franchises to such competing rail
r way company and has ceased to transact
t any business or to perform any of the
4 duties imposed by the conditions of it's
r charter.
] Besides the conditions of the road from
Greenville to Mckinney is shown to be
: such as to induce the belief that it has
n been the purpose of the rival corporation
+ operating it to cripple and pnralize this
/, portion of the road,as it has done, thereby
o rendering it very Inefficient, unsafe and
= dang erous.
This of itself wonld seem to be common
r law ground for forfeiture.
l. at has been held in various cases that
: If a corporation has assumed the per-
+ Torrance of duties for the benefit of the
t public generally, it cannot neglect the
performance of these duties without in
e curing forfeiture OF its franchises.
!, "Thus it is the du'y of corps ration char
r tered to build turnpike read to main
u taid its road Ia repair as thoroughfare
y for the public use. And, therefore, If a
Q rnpike company should fail to keep its
: road in proper condition to be used by
?, the public, it would be liable to have it's
}. franchises declared forfeited at the suit OF
8 the state. The same rule undoubtedly ap-
d plies to other corporations of a similar
/. character, such as ferry and bridge COM
r panies, canal companies, gas comp anies,
J. telegraph companies and railroad com.
i psnies." (Morawetz on Corporations, sec.
s. ton 1018)
is Not only has the state granted impor
r tapt and valuable franchises to respond
n eat, but il has granted to it sixteen sec
10 tions of land for each mile of its road, and
,r for these valuable considerations respond
d ent has undertaken, as conditions annexed
8, by law to its charter, to construct, main
D tain and operate its railroad; and the two
y. last named duties It has willfully and BY
1t design failed to perform for the past seven
If years.
IT This failure ia of the very essence of the
" contract; it is failure by respondent tc
y fulfill the purposes for which 1t was ere
st ated. Railroads, being of great public bene
le fit, the state has always encouraged thei
construction, and their franchises should
ls not be annulled for other than strong anS
~ coRent reasons; yet they and all other cor
r pofations should be held to a substantia
Of performance of the essential conditions o
te their charters, and, as said by our gu
r. preme court in State vs.. Southern Pacifi,
y Railroad company, "a Texas:
es "When facts are presented which CON
clusively show that the high public trust
es involved in the franchises granted to
Ne corporation have been grossly abused, Il
I'd the public detriment, or that the compan.
OF has placed itself, or is placed, in such IL
o. retrievable embarrassment as to be Ger
Re, tainly unable 10 progress with the enter
c. prise as plated by the charter
Dc then the state has right to resum
all the franchise"
a. Considering all the circumstances o
re this case, and applying the Law as under
at stood, the conclusion is that the state |
IT. entitled to the judgment sought. Ac
,r- cordingly judgment FORGETTING respond
b" ent's charter and corporate franchise
er will be rendered.
,st As the case will be appealed no receive
ed will be appointed at this time. II th
he judgment shall be affirmed the appoint
oh ment will then be made. W. M. KEY,
! Judge Twenty sixth District OF Texas