The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1896-03-01

| cnmid y. we prlhcIpal than the first agent
Siouu nind the principal by the unau thor
'<ea act in the first instance
e,n re supreme court of the United States
i nng,,sss this proposition in the following
1r,eeenhow, ia U. S. 20: ''The State IL.
M IL an ideal person, intangible, invis-
a age, 'mmutable. The government is an
asens, and within the sphere of the
ssshey, a perfert representative: but out
T T,Se OF that II Is a lawless usurpation
ar ,eonsutution OF the State is the limit
hot" e authority OF Its government, and
to n government and State are subject
~ ~ me supremacy of the constitution OF
n ,nv United States and the laws made in
| pursuance thereof
heice. when defendants say the State
""s IN pari delicto, We must answer that
az "a" W. only state officers acting outside
that '" VIZ power TO represent the State
state. Nor was there any executed con-
uaSt or transaction which the State now
f frens 70 set aside. The contract and
Transactions were void and nothing was
eAeeuted by them. There were no pay
| ntnts IN contemplation of law and no
TTtShveptance OF payments by the State
~ "g ot.iy executed matter which is sought
10 ne SET aside Is the application of The
| payments made by the railroad companies
rnnv , me war which were applied to pay
, men h,ent OF the amount the roads claimed
aua been before validly paid In treasury
Warrants, and the effort TO set aside this
| eAS,cuted matter Is by the defendants who
SRI M 10 Apply these payments differently.
|
corning to my construction Of the acts
| sought to ratify the payments made In
SSreasury warrants, was the special act
! LOT Inc relief of the Houston and Texas
central Railway company of August Is.
| ls'o which the Journals of both houses
SHOW was passed over the veto Of Gov
trhor Davis, and for the reason just given
II can not he given such effect The acts
| extending the time of payment of the
,nuebtedness to the railroads passed in
iSm provided for payments of interest
| hA a. wa -
| amount due on account of said loans
| principal and interest as said aggregate
amount stood on the first day of May
/ a. ID. 1870" / do not think this language
| imports recognition of any particular
status of the accounts in 1870 Some time
had to he stated w 10 which interest
OF the principal upon which interes, and
sinking fund would thereafter be paid
ana the first day, of May was adopted
! as the time to which interest should be
computed. But If a contrary construction
/ OF this legislation is to be adopted 1t
must be assumed that the accounts were
restated ana the railroads rechargcd with
on May 1. 1870, as that Is the date of the
entries on the books and as there is no
otner evidence Of the date OF restating
these accounts. Hence the acts mentioned
may have referred to the condition of
the accounts after they were restatcd
Finally, If. 1t was sought by the acts
TO give effects to the payments made
that effect for constitutional reasons,
winch ! have already stated.
But IT would not follow that the con-
solidation acts of 1870 were void for all
purposes II they attempted to ratfy the
Noid payments In question. They CON
sisted mainly Of grants OF privileges TO
the railroads which II may fairly be as
sumed they would have accepted without
such supposed ratification of payments
claimed by them to have been made 1t
Is true the acts also involved the assump-
ton by the consolidated company OF the
Indebtedness To the school fund owned by
railroads entering into the consolidation
But as the security of the state, we must
presume, was anple az that time without
new property being brought under It's
lien and as the consolidated corporation
acquired thereby property OF greater value
than the indebtedness assumed. 1t Is not
TO be presumed they would have refused
to accept the extension of time for pay
ment of the debts and the privilege OF
consolidation because the attempted rati-
ilcation of void payments could not lie
carried out.
But If the whole of the consolidating
acts were held void the States right OF
recovery would not be effected f limited
TO be satisfied from sale to be made
Of those, parts of the road on which the
States lien originally existed 1t is ad-
United by defendants that they have
those roads In possession and that those
roads have In fact been transferred 10
them by the former owners; and OF course |
under the law under which the loans were |
made they took the parts of the road on |
which the loans were made subject to the |
liens
Another serious question arises, which has |
not been argued on the trial. as to the riPhy |
of defendants to maintain their defense |
calling for setting aside the applcatio |
of payments made by them under protest |
to cover the payments before made IN |
treasury warrants and the making Of |
another application thereof. There is no |
proof that the governor was threatening |
to sell out defendants roads instead of |
bringing suit as was ultimately done to |
enforce payments claimed by the State
to be owing II. The protests filed with |
the comptroller asserting threats of Inn
mediate seizure and sale by the governor
are not evidence Of the facts which they
recte, but are only evidence that the de-
PENDANTS alleged those statements to be
facts and made the alleged facts reasons
for payments under protest Tho mere
payment under protest does not entitle
one to recover money unnecessarily paid:
nor will the desire to avoid a suit at
the time Of the payment to test his rights
In court be sufficient reason to authorize
a recovery Of money thus paid under pro-
test. apprehend the same rule applies to
an effort TO set aside an application OF pay
mcnts made on one part OF n debt under
protest; for II is n general rule that when
an application of Il payment is once made
even II ON an Illegal claim, the appiica-
ton Is conclusive unless fraud. mutual
can and English Ency. Law. 2i3, PA, note
IL
Furthermore. It is probable that the
not In the exercise OF his constitutional
executive functions. was subject TO be pre-
vented by injunction from selling the rail-
roads II the payments in treasury notes
were valid; and II So there was ample
time and opportunity during the advertise
ment of the sale TO seek this remedy be-
fire paying under protest. Where a
party has time and opportunity to main
tain his rights by taking the offensive or
by making n defense In court, he can
not pay money IN dispute under protest
and seek re-adjust ment Afterwards
This is only justified when immediate in
jury is threatened, against which no re-
lief can he had In court until too late
A suit for Injunction to prevent State
officer from doing an injury which he is
not authorized by the State to do is not
suit against a State and may be granted
when the same officer could not be com |
PEELED by mandamus TO perform Off
rlal duty chairman co. VS. McGaughey
ct Civil Ap. Osbourne VIZ. Bank OF U. s.,
D. Wheat, 1873; Poindsxter vs.. Greenhow,
ia, L. s, 210D
But as these questions, though arising
In the case, were not suggested or argued
by counsel and "a have not thought It
to examine into them carefully \
owing to the disposition of the case which
have decided 10 make on the other ques-
u,ft h.. a.. |