The Houston daily post. [volume] (Houston, Tex.) 1886-1903, 1899-03-21

1881. the East Line and Rel RIVER Railway
company sold aud delivered trcscrying les
charter only for limited fitsc aud for
specified purnosel IS cnti,n property OF
whatever kind ann ti.sgslutDa " 4 + Mis-
souri,. Kansas aud Texas Railwiy cclnranw,
the read OF the East Line aai Re RIVER
Railway company then, ss nov. eStsEding
from Jefferson via Srecnyille 10 Nckin
ney. The physiral fsiatiols ot the two
railways rarties to the sale. we're then
identlcally as now rrbsisi between the
Missouri Kansas ana Texas railway Of
Texas and the sherman, ShreNernr. anl
southern railway. The Stalc, thrclt,h its
attorney genera. Nts5it,ued afucccGlEgs
10 annul the sale, u car Il the riay,er of
the East Line and Ed River Railway ecn-
pany and to put i.s pfnpSrsy II The hands
OF a receiver TO I've administered Tor the
benefit OF its creditors AMI s,e.Ahoiders.
The State prevailed ielrrs h. l'ia; cart.
and sn appeal was taken b. the company
to the supreme court. Among the findings
OF fact by the court below was the fol-
lowing;
episregarding their connections with
other railroads and lines OF transporta-
ton the East Line and Rcd River and
the Missouri Kansas aud Texas railroads
were not competing roads when said sale
/ was made. Considered with reference 10
such connections, they were composing
roads.
| INT East islUt anu ntN IsANtN NNiiNuN
| company. through its attorney controyerted
| this finding OF the trial court with tho
| following propositions
"5. Whether given lines OF road are
competing within the meaning Of that term
| as used in our constitution and In the
charter OF respondent must be- determined
by the extent. location and the relations
| OF the two lines as constructed on the
| Eround--that IL, by their own physical con-
| ditions and not by their business connec-
| lions or opportunities for business connec
| lions with other common carriers Ii two
roads. as constructed on the ground when
| judged exclusively by tho extent ot their
| respective lines and their location with
| reference 10 each other, ere rival car
riers. contending for the carriage Of tho
same freight or passengers between the
| same markets they are competing; II,
| however these conditions do not exist they
| are not competing. though they may have
! one common point and may each form n
| link In one of two or moro of different
! great routes of connecting lines extending
| between their one common point and the
| great commercial markets OF the world
| Upon the issue thus joined and brought
| directly before the supreme court the chief
! justice. who delivered the opinion. said !:
| "Wc further concur with the court below
| In the holding that railways by reason Of
| their relations with. control or manage
| mcnt of other lines than their own may
1 btNuiHt, Wlinln i0p meaning OF the law.
competing lines, though the railways
owned by them may not In fact connect"
| And again. the court said: article =.
| And again the court said: ARTICLE TO- Sec
| ton .. of the constitution. provides that
No railroad or other corporation, or the
| lessees, purchasers. or managers Of any
railroad corporation, shall consolidate the
stock. property or franchises OF such cor
| poration with, or lease or purchase the
| works or franchises OF, or IN any way con-
| troll any railroad corporation owning or
| having under its control parallel or com
peting line, nor shall any officer OF such
railroad corporation act as an officer OF
any other railroad owning or having con-
| troll OF parallel or competing line The
| court below found. on evidence that JUS
tihed II, that respondent and the corpora
ton to whom II sold were competing lines.
The constitution forbade the sale"
The opinion OF the supreme court thus
constituting section 5, article 10. of the
constitution, VIII appear more convincing
II not altogether conclusive, when taken
In connection with the requirement OF
section l of the same article, which pro-
vides that: Every railroad company
shall have the right, with its road TO in
tersect, connect with or cross any rail
road; and shall receive and transport each
the others passengers, tonnage and cars,
loaded or empty without delay or dis
elimination. under such regulations as
hnuiI pc prescribed by law.
But 1t is urged by some that this par
ucular finding and the judgment of the
supreme court thereon was only an Incl
dent Of small moment. and that 1t was not
controlling factor in the case II Is true
that the court was quite brief in its
reference TO this finding, yet it must be
admitted that it's language is as plain and
emphatic RS IT is terse. 1t could not be
made more So But that the Importance
of the finding and its effect upon the Anal
determination of the suit may be fully
appreciated il would be we'll to note that
the court further said upon the question
raised: THAT respondents abuse of its
franchise is evident by an act violative OF
the constitution, and that its non-user OF
its franchises may be attributable To that
act in this proceeding, becomes important
as an aggravating fact indicating the will
| fulness of The act; but stil the fact re-
mains that respondent used its powers for
a forbidden purpose, which is a misuser OF
its franchise and the further fact that IL
failed for long time to exercise its cor
porate franchise to carry out the purposes
for which they were given. Such abuse
and non-use OF the corporate franchise
gives common law grounds for the for
feiture OF respondents charter, and there
is nothing In the Statute which indicates
that the State intended to waive its right
TO the forfeiture, and the court below
correctly 80 held"
The case referred to may be found on
pages 432-452 volume IS. Texas Supreme
Court Reports, and is styled East Line
and Red River Railway Company VS.. The
State Of Texas and the court that deliy-
cred the opinion was composed OF Chief
Justice Stayton and Associate Justices
Gaines and Henry, II was as able a court
as ever sat in Texas, and the opinion was
unanimous.
The bill returned has received the most
careful consideration at my hands ! have
not only most closely examined the tran
script Of the proceedings Of the trial court,
but have also been favored with an argu-
ment in support OF the measure by able
and experienced counsel. II was insisted
before me that the finding OF the lower
court and its confirmation by the supreme
court depended IN a great measure upon
The oral testimony OF two Witnesses and
that such testimony was vague and in
definite. To this / have not been able to
agree because. in my opinion the status
OF the case would not have been at all
changed had such testimony bsan elimin-
ated The trial court had before Il the
physical relations CT all the railways pass
ing through Greenylle or connecting with
the East Line and Red River and The Mis-
souri,. Kansas and Texas railways and II