The submission in this case is set aside, and counsel are requested to file additional briefs or arguments upon the following questions:
1. Did not the appellant company "fail to comply with the terms of its charter with reference to the completion of" its road to San Antonio within a stated time? (Special Act July 27, 1870; Special Act March 10, 1875; Ordinance of Convention of 1875, Sayles' Constitutions, p. 599.) Has there been any legislation since the ordinance cited which granted relief to the company with respect to the time of completing its road?
2. If the company (lid so fail, did the Act of August 16, 1876, entitle the company to) receive lands for work done after the 21st of August, 1876, the day on which the first Legislature adjourned after the Constitution went into effect?
The briefs will be filed on or before 10 o'clock on 23d instant.
E.P. Hill, for appellant, on reargument. — Answer to first question: The appellant did not complete its road to San Antonio within the time fixed by its charter, viz., July 27, 1874. The Act of March 10, 1875, extended the time to January 28, 1876, and the effect of the ordinance of the Convention of 1875 was to extend the time to August 21, 1876, by which latter date the road was not completed to San Antonio. The only further extension claimed is under Act of March 15, 1875, hereafter referred to.
The second question raises a point not before raised in the case, either in the court below or in this court, and no argument seems called for on any point before presented in the brief for the State.
The proposition is there presented and urged, that because appellant did not complete its road in the time required, its charter was by its terms forfeited; but the language, "then this charter shall be forfeited," puts the case in that class where judicial proceedings are necessary to declare a forfeiture. The State v. Railway, 24 Tex. 80; Beach on
Priv. Corp., sec. 49; Mora. on Priv. Corp., sec. 1006; 2 Redf. on Rys., 587; Field on Corp., sec. 493.
Where the failure of the State to take such proceedings is a waiver: Beach. on Priv. Corp., sec. 59.
Moreover, there was an actual waiver by the Act of March 10, 1875, which extended the time to January 28, 1876, without attaching any condition of forfeiture in case of failure.
Article 4278, Revised Statutes, is not correctly quoted in brief for the State. The language of the article is, "If any railway corporation organized under this act," etc. The appellant company was not organized under that act.
That article, too, not only says "shall * * * forfeit its corporate existence," but also "its powers shall cease," so far as relates to that portion of the road unfinished. Said article is not pertinent to this case, nor is the case cited applicable.
An Act approved March 15, 1875, extended limitation of time for twelve months in addition to that given in charters or laws for completion of works of internal improvement. It is true that one of the provisos of this act is as follows: "Provided further, that this act shall not apply to any railway company in whose favor any special act may be passed extending the time of construction at the present session of the Legislature."
This proviso raises two questions. Does it exclude the Galveston, Harrisburg San Antonio Railway Company on account of the fact that an act had been theretofore passed at the same session, viz., March 10, 1875, extending time to January 28, 1876? The Act of March 15, 1875, is certainly susceptible of a construction which would give the Galveston, Harrisburg San Antonio Railway Company the benefit of it, for the benefit of this act is only withdrawn from railway companies "in whose favor any special act may be passed." This by its terms, and by reasonable construction of its terms, would refer to acts which might be subsequently passed — that is, which might be passed after March 15, 1875. No such act was passed in respect to the Galveston, Harrisburg San Antonio Railway Company. Of course, if this construction is maintained the Act of March 15, 1875, adds twelve months to the time limit of the Galveston, Harrisburg San Antonio Railway Company. This would be twelve months from January 28, 1876, which would practically cover the time of completion of the Galveston, Harrisburg San Antonio Railway to San Antonio.
The Act of August, 1876, section 1, is as follows:
"An Act to encourage the construction of railroads in Texasby donation of lands. — Section 1. Be it enacted by the Legislature of the State of Texas: That any railroad company heretofore chartered, or which may be hereafter organized under the general laws of this State, shall, upon
the completion of a section of ten miles or more of its road, be entitled to receive, and there is hereby granted to every such railroad, from the State, sixteen sections of land for every mile of its road so completed and put in good running order; provided, that no company whose road is less than three feet gauge shall be entitled to receive any grant of lands under this section; provided further, that companies constructing railroads on the prismoidal plan shall be entitled to eight sections of land to the mile on the same terms as other roads; provided further, that this act shall not be construed to renew or continue any right to companies who have failed or may fail to comply with the terms of their charters, with reference to the completion of portions of their roads in stated times; provided further, the provisions of this act shall not be so construed as to grant the aid herein provided for to any railroad that has already received or is otherwise entitled to receive aid from the State to the amount of sixteen sections of land to the mile."
In respect to rights of railway companies to acquire lands by reason of construction of road which may have been built out of time, there are the decisions of the Supreme Court of the United States upon that subject, the leading case being that of Schulenberg v. Harriman, 21 Wallace, 44. Notwithstanding the most positive provisions in respect of forfeiture in the event of nonconstruction within the prescribed time, a railway company is entitled to draw lands against railroad built out of time, unless in the case of office-found or judicial determination of forfeiture, or at the least a statutory declaration of the exercise of the right of forfeiture after the right to forfeit has accrued. Under congressional land grants it is the well settled law that notwithstanding limitations and the most positive terms of forfeiture attached to limitations, companies are entitled to lands for road completed before the judicial decree of forfeiture or legislative exercise of an accrued right of forfeiture.
Under article 4270 the right which is not to be construed to be renewed or continued is the right to acquire lands and not the right to build roads. The theory of the act is, that if a company has had a land grant in respect of its line, and has failed to comply with the terms of its charter with reference to completion of portions of its road in stated times, this chapter should not be construed to renew or continue the right to acquire lands in respect of the same. This could not be applicable to a corporation which had never had the right to acquire lands in respect of the road in question, and in respect of which, therefore, there was no right which could by any possibility be renewed or continued.
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The submission in this case is set aside, and counsel are requested to file additional briefs or arguments upon the following questions:
1. Did not the appellant company "fail to comply with the terms of its charter with reference to the completion of" its road to San Antonio within a stated time? (Special Act July 27, 1870; Special Act March 10, 1875; Ordinance of Convention of 1875, Sayles' Constitutions, p. 599.) Has there been any legislation since the ordinance cited which granted relief to the company with respect to the time of completing its road?
2. If the company (lid so fail, did the Act of August 16, 1876, entitle the company to) receive lands for work done after the 21st of August, 1876, the day on which the first Legislature adjourned after the Constitution went into effect?
The briefs will be filed on or before 10 o'clock on 23d instant.
E.P. Hill, for appellant, on reargument. — Answer to first question: The appellant did not complete its road to San Antonio within the time fixed by its charter, viz., July 27, 1874. The Act of March 10, 1875, extended the time to January 28, 1876, and the effect of the ordinance of the Convention of 1875 was to extend the time to August 21, 1876, by which latter date the road was not completed to San Antonio. The only further extension claimed is under Act of March 15, 1875, hereafter referred to.
The second question raises a point not before raised in the case, either in the court below or in this court, and no argument seems called for on any point before presented in the brief for the State.
The proposition is there presented and urged, that because appellant did not complete its road in the time required, its charter was by its terms forfeited; but the language, "then this charter shall be forfeited," puts the case in that class where judicial proceedings are necessary to declare a forfeiture. The State v. Railway, 24 Tex. 80; Beach on
Priv. Corp., sec. 49; Mora. on Priv. Corp., sec. 1006; 2 Redf. on Rys., 587; Field on Corp., sec. 493.
Where the failure of the State to take such proceedings is a waiver: Beach. on Priv. Corp., sec. 59.
Moreover, there was an actual waiver by the Act of March 10, 1875, which extended the time to January 28, 1876, without attaching any condition of forfeiture in case of failure.
Article 4278, Revised Statutes, is not correctly quoted in brief for the State. The language of the article is, "If any railway corporation organized under this act," etc. The appellant company was not organized under that act.
That article, too, not only says "shall * * * forfeit its corporate existence," but also "its powers shall cease," so far as relates to that portion of the road unfinished. Said article is not pertinent to this case, nor is the case cited applicable.
An Act approved March 15, 1875, extended limitation of time for twelve months in addition to that given in charters or laws for completion of works of internal improvement. It is true that one of the provisos of this act is as follows: "Provided further, that this act shall not apply to any railway company in whose favor any special act may be passed extending the time of construction at the present session of the Legislature."
This proviso raises two questions. Does it exclude the Galveston, Harrisburg San Antonio Railway Company on account of the fact that an act had been theretofore passed at the same session, viz., March 10, 1875, extending time to January 28, 1876? The Act of March 15, 1875, is certainly susceptible of a construction which would give the Galveston, Harrisburg San Antonio Railway Company the benefit of it, for the benefit of this act is only withdrawn from railway companies "in whose favor any special act may be passed." This by its terms, and by reasonable construction of its terms, would refer to acts which might be subsequently passed — that is, which might be passed after March 15, 1875. No such act was passed in respect to the Galveston, Harrisburg San Antonio Railway Company. Of course, if this construction is maintained the Act of March 15, 1875, adds twelve months to the time limit of the Galveston, Harrisburg San Antonio Railway Company. This would be twelve months from January 28, 1876, which would practically cover the time of completion of the Galveston, Harrisburg San Antonio Railway to San Antonio.
The Act of August, 1876, section 1, is as follows:
"An Act to encourage the construction of railroads in Texasby donation of lands. — Section 1. Be it enacted by the Legislature of the State of Texas: That any railroad company heretofore chartered, or which may be hereafter organized under the general laws of this State, shall, upon
the completion of a section of ten miles or more of its road, be entitled to receive, and there is hereby granted to every such railroad, from the State, sixteen sections of land for every mile of its road so completed and put in good running order; provided, that no company whose road is less than three feet gauge shall be entitled to receive any grant of lands under this section; provided further, that companies constructing railroads on the prismoidal plan shall be entitled to eight sections of land to the mile on the same terms as other roads; provided further, that this act shall not be construed to renew or continue any right to companies who have failed or may fail to comply with the terms of their charters, with reference to the completion of portions of their roads in stated times; provided further, the provisions of this act shall not be so construed as to grant the aid herein provided for to any railroad that has already received or is otherwise entitled to receive aid from the State to the amount of sixteen sections of land to the mile."
In respect to rights of railway companies to acquire lands by reason of construction of road which may have been built out of time, there are the decisions of the Supreme Court of the United States upon that subject, the leading case being that of Schulenberg v. Harriman, 21 Wallace, 44. Notwithstanding the most positive provisions in respect of forfeiture in the event of nonconstruction within the prescribed time, a railway company is entitled to draw lands against railroad built out of time, unless in the case of office-found or judicial determination of forfeiture, or at the least a statutory declaration of the exercise of the right of forfeiture after the right to forfeit has accrued. Under congressional land grants it is the well settled law that notwithstanding limitations and the most positive terms of forfeiture attached to limitations, companies are entitled to lands for road completed before the judicial decree of forfeiture or legislative exercise of an accrued right of forfeiture.
Under article 4270 the right which is not to be construed to be renewed or continued is the right to acquire lands and not the right to build roads. The theory of the act is, that if a company has had a land grant in respect of its line, and has failed to comply with the terms of its charter with reference to completion of portions of its road in stated times, this chapter should not be construed to renew or continue the right to acquire lands in respect of the same. This could not be applicable to a corporation which had never had the right to acquire lands in respect of the road in question, and in respect of which, therefore, there was no right which could by any possibility be renewed or continued. In respect of such a line the provision as to renewal or continuance could not be applicable, and there is no proviso which in anywise impairs the effect of the act as a fresh grant except the statement in the last clause that it shall not operate as a fresh grant when a road
has already received or is otherwise entitled to receive aid to the amount of sixteen sections of land to the mile. There is nothing in the act which withdraws the grant therein contained from any company which, not having had a land grant at all in respect of its line, had failed to complete it within the prescribed time. The theory of the act seems clear upon its terms and reasonable in its provisions, that if a company had had a grant and had failed to build its road in time the grant should not be renewed or continued by this act. If it had not had such a grant, there was every reason why it should be given a reasonable opportunity to build the road under the inducement of the grant, and in view of the benefits and advantages to be derived therefrom; that is to say, in consideration of the premium which the State at that time considered it desirable to offer in order to secure construction of roads.
Article 4270 provides that it shall not be construed to renew or continue any right to any company which has failed or may fail to comply with the terms of its charter with reference to the completion of portions of its road in stated times. That could not be applicable to appellant, because it then had no right to earn lands which might or could be renewed or continued. If there was no right which could by any possibility be renewed or continued, this proviso could not of course affect the appellant if it were in the position of having no right to earn lands.
The meaning of this section of the Revised Statutes would seem to be, that if, notwithstanding it had a land grant, a company had not built its road in time, this act should not renew or continue it; if it already had a grant, this act should not give it another. Neither of these affects a company in the position which appellant occupied in respect to the Columbus to San Antonio line, viz., that it did not have and never had had a land grant in respect thereto.
Chas. A. Culberson, reargument. — In response to the order of the court, I herewith submit an additional brief on the points suggested, taking up the two propositions in their order.
1. "Did not the appellant company fail to comply with the terms of its charter with reference to the completion of its road to San Antonio within the stated time? Has there been any legislation since the ordinance cited which granted relief to the company with respect to the time of completing its road?"
As shown in the brief heretofore filed, by the Act of July 27, 18707 which created the appellant company, it was required under pain of forfeiture of its charter to complete its road to San Antonio within four years. The admitted facts show that the road was not completed until the 13th of February, 1877. The Act of March 10, 1875, granted the company until January 28, 1876, to complete the road, and the ordinance
passed by the Constitutional Convention of 1875 extended the time to the close of the next session of the Legislature, which was the 21st of August, 1876. It will be observed, therefore, that conceding the validity of the Act of 1875 for the purpose of extension, and also giving full effect to the ordinance referred to, the charter of the company was nevertheless forfeited because it failed to construct its road by the 21st of August, 1876. I have examined all the laws passed since, 1876, and have been unable to find any statute which grants further time for the completion of this road. Certainly the Act of August 16, 1876, does not grant relief to this company, but on the contrary, by section 1, which is carried into the Revised Statutes as article 4270, it is expressly provided that "this act shall not be construed to renew or continue any right to companies who have failed or may fail to comply with the term of their charters with reference to the completion of portions of their roads in stated times." So far as I am advised, no act for the relief of railway companies was passed between 1876 and 1885 except the Act of 1879 (Special Session 1879, p. 47), which does not apply; but by the act of that year, approved March 27 (Gen. Laws 1885, p. 54), it was provided that limitations as to time within which parts of a railway should be constructed, contained in articles 605 and 4278 of the Revised Statutes, were suspended until January 1, 1887. This law, however, is certainly not applicable to this railway company, for the obvious reason that article 605 refers only to corporations created by general law, and article 4278 is also thus limited. The requirement that appellant company should complete its road to San Antonio within the time named was not contained in either of these articles or in any general law, but was a provision contained in its own charter. There was no relief act passed by the Legislature of 1887, and the Act of 1889 (Gen. Laws 1889, p. 20), only relieved companies chartered since the 1st of January, 1887; so also the Act approved February 11, 1891, was for the relief of railway companies having charters made or amended since the 1st of January, 1887. Gen. Laws 1891, p. 5.
"2. If the company did so fail, did the Act of August 16, 1876, entitle the company to receive the lands for work done after the 21st of August, 1876, the day on which the first Legislature adjourned after the Constitution went into effect?"
It is submitted that this law did not authorize appellant to receive lands, for the following reasons:
(1) The ordinance referred to extended the time after the completion of the road to the 21st of August, 1876. The company did not comply with this relief act, but on the contrary failed to complete the road as stated until February 13, 1877. The Act of 1876 did not go into effect until ninety days after adjournment, and consequently before
it became operative, even under the ordinance of 1875, the charter of the company had become forfeited.
(2) It is expressly provided in section 1 of the Act of 1876 that "this act shall not be construed to renew or continue any right to companies who have failed or may fail to comply with the terms of their charters with reference to the completion of portions of their roads within stated times." It is plain that if full effect be given to the ordinance of the Constitutional Convention the company is not entitled to lands under this act, because the exception expressly applies both to companies "who have failed or may fail to comply with the terms of their charters," and certainly if the charter had not then become forfeited it thereafter became so.
(3) The charter of the company having become forfeited the company could not earn or acquire the land. It was dissolved for all purposes except what might be necessary to wind up its affairs. Saltmarsh v. Bank, 17 Ala. 766; 3 Wood Ry. Law, p. 1715, sec. 500; 2 Mora. on Corp., sec. 768; In re Railway,72 N.Y. 245; Bank v. Colby, 21 Wall., 615; Thornton v. Railway,123 Mass. 32; Ins. Co. v. Bank, 68 Ill. 350.