The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1893-10-05
JUDGE ROBERTSON'S
DECISION ON THE SUIT BROUGHT To
FORFEIT THE WATER C0MPANY's
CHARTER.
He sustains the States Demurrer and Dis
misses the Defendants Plea In Abate-
ment Entered by the Defendant.
The Decision In Full.

Following Is the decision in full
handed down yesterday by District
Judge Robertson in the case of The
State against the Water company
brought to forfeit the charter Of the
latter:
The State of Texas, upon the relation
of Frank Hamilton vs.. The City
Water company; in the District
Court of Travis County, Texas,
Twenty-third Judicial District.
This is proceeding in the nature of
quo warranto, by the state to forfeit
the charter of the respondent, the
City Water company, private cor
poration; the grounds alleged Tor the
forfeiture are failure on the part OF
said corporation to discharge the
duties of the public required OF 1t by
law. and failure to perform any cor
porate act since 1887 up to the date OF
filing this petition July 10, 1898 } and
an effort on its part, in violation OF
law, to transfer to another corpora
ton it's corporate franchise and prop
erty. The state prays for forfeiture
of the respondents charter ana the
appointment of q receiver to take con-
troll of its property. The respondent
interposes a plea in attainment OF this
nroceedIng because of non-joinder OF
parties, avering in said plea that a
suit was instituted in the circuit court
of the United States for the western
district of Texas, on the 6th day Of
Julv, 1893, and in said cause Hon. A.
p, Mccormick, one of the judges OF
said urt, did, on the 10th day OF
Julv. 1898. and before the filing OF the
netition IN this case, appoint Joseph
Spence, a citizen of Travis county,
Texas, receiver of and tor the respond
ant. and that said Spence qualified as
such receiver and is now IN control anu
actual possession of the respondent
it's franchise and property, unaer ano
by virtue of the orders OF the salo
United States circuit court, ana tna'
this cause cannot proceed turthel
without making said Spence party
The state demurs to the respond,
ent,s said plea in abatement, and
therebv admits the truth OF al! aver
ments of facts therein contained.
The rule that the state courts can
NOT interfere with the possession o.
the property of a corporation. or per,
SON which is IN the possession ano
control of a receiver appointed oy tn'
federal court, in a case pending II
such federal court, is 80 welt seIvie.
as to render the citation OF autnorl0ie'
unnecessary. =, tho arou
mont of this plea in abatement IN 70
cognition of this rule, abandoned Uni
nrsver for the appointment OF a re
e;aver to take charge of respondent
nronerty. during the pendency, OF I'M
said receivership in tie federal court
Therefore the sole question TO De oe
tarmined is: Can the state maintain
in the state court, a proceeding I'D w
natnre of quo warranto, against pr
,,ata cornoration to forfeit its chartef
,yhiIe the property of such corporation
!, in the possession of receiver ap
no;ntad nv the circuit court OF th'
fTmited states, in a cause penolnt
therein, without makinS 'u0N ~
ceiver party detendaho. ..i, oorr
IT being conceded thai tnis ,o Gu
ran not interfere with the posseSsttHb, ~,
and control, by the receiver VI t 49,
property placed in his hanas s,. 10y Wv -
federal court, it becomes necessary "
Satormine the character OF proper.
niaced In his possession, and the rlgno
70 hs exercieed by him, and the eIeG
10 ne eA forfeiture of respondent
p Wni s.ar would have upon his posses
sion and control OF said properly -, -
this proceeding the state does n ~
s sn r. interfere with the physics
Tronertv of the respondent, tne soi
nurpose being to forfeit anu wlr
from the respondent Tvs wi ~ on
franchise-thaU is its rlgne W oe 81
act as corporation: Ihere eonnorat
question arises did the corpo oa az
franchise of the City water co .hp ~
noss from the corporation u .no
p paSo no m his qualification a. SUI u
oontended for by attorneys Iol IL
90 This question musC y
answared inthe negative. IL seel u,
to be we'll settled and recognlzeu y
S w. NO authors on the law OF prlVaao
sSanu as we'll as by the ae
o;s;pns of our supreme court, vnaS
orivate corporation can not mor'gase
transfer or assign its corporal ation i
chise or right to be corpor at;ua al
the absence of express leglslatiloVe zs az
thority so to do, (60th T 1liaste no Gor y
Texas 484, Beach on Private Pr hev oorp ~
rations. Sec, 93O) we nas q
statute authorizing the ora srannIis
T,ortoage of its corporate ilan nSon,
The Ivy ,ower to transfer its ccrrol
ate ate f r If the Corporation could nc
Voluntarily mt ssriygu 5sHn oontonded that in tn
nnnointment of a receiFei on.
f1deral court did, or couiu ~