Galveston, Harrisburg & San Antonio Railway Co. v. State

34 S.W. 746, 89 Tex. 340, 1896 Tex. LEXIS 365

• Court: Texas Supreme Court
• Decided: March 17, 1896
• Docket: No. 260.
• Status: Published

Opinion

GAINES, Chief Justice.

The following questions have been certified for our determination:

“The State of Texas instituted suit against appellant to cancel certain land certificates and patents issued by the State to appellant, for land, amounting to 879,078 1-20 acres. It was alleged and proved that the certificates and patents were issued to the Galveston, Harrisburg & San Antonio Railway Company, for a portion of its railroad constructed, between the Colorado River and Guadalupe River, between the time of the adoption of the Constitution of 1869 and the passage of the act of ■ August 16, 1876 (arts. 4267 to 4277 Rev. Stats.) On July 27, 1870, by special act of the Legislature, appellant was chartered and recognized as the successor of the Buffalo Bayou, Brazos & Colorado Railway Company. After the passage of the act of August 16, 1876, and before its repeal in 1882, appellant constructed about 163 miles of railroad from San Antonio westward towards El Paso, for which the State refused to issue land certificates, the Governor refusing the application for inspection on May 22,1882, on the ground that the law granting certificates has been repealed.

“Question 1. Did section 6, article 10 of the Constitution of 1869 repeal all laws giving railroad companies the right to earn lands from the State by the construction of railroads, and if so would this repeal apply as well to the right to earn lands given through charters as through general laws?

“Question 2. If the above be answered in the negative, did appellant succeed to the rights of the Buffalo Bayou, Brazos'& Colorado Railway Company by virtue of the special act of 1870, said Buffalo Bayou, Brazos & Colorado Railway Company being restricted by special act of February 11, 1854, to run its line to Austin?

“Question 3. If the laws as to land grants to railroads passed prior to 1869 were repealed by the Constitution of that year, can appellant interpose and maintain in this suit the equitable defense that if the certificates issued for that portion of the road between the Colorado & Guadalupe rivers from 1870 to 1876 were illegally obtained, that the State is in no position to ask the relief sought by reason of the fact that appellant has earned the certificates for said 163 miles of road?

“Question 4. If the last question be affirmatively answered, would the fact that at the time the land for the 163 miles west of San Antonio was earned by appellant, the public lands were exhausted, -affect the equities of the case?”

1. Our opinion upo» the second question certified renders, we think, a decision of the first unnecessary. We therefore pass to a discussion of the second.

2. The Buffalo Bayou, Brazos & Colorado Bailroad Company was incorporated by a special act of the Legislature, to which there was several amendments. Its name was changed to that of the Galveston, Harrisburg & San Antonio Bailway Company also by special act. The statement accompanjdng the question does not expressly advise us whether these acts were pleaded and proved upon the trial or not. However, the briefs of the parties which were filed in the Court of Civil Appeals, and which are sent up with the certificate, indicate that they were. Since it is impossible for us properly to decide the questions submitted without having before us the legislation upon which the company bases its claims to the lands in controversy, we conclude that the special acts of the Legislature affecting that claim were properly brought to the knowledge of the trial court and that the questions have been certified upon that assumption. We shall therefore discuss the points presented, assuming that we are to look to all the legislation upon which the company’s claim depends.

The act incorporating the Buffalo Bayou, Brazos & Colorado Bailroad Company was approved February 11, 1850. By that act the company was authorized to construct and maintain a railroad, “commencing at any suitable point on Buffalo Bayou, between Lynchburgh and Houston in the County of Harris, and thence running by such course and to such point at or near the Brazos Biver, between the towns of Bichmond and Washington inclusive, as said company shall deem most suitable, with the privilege of making, owning and maintaining such branches of said railway as they may deem expedient.” (Laws 1849-50, p. 194.) Ho privilege of acquiring lands was granted by this act, but another special law was passed by the Fourth Legislature and was approved January 27, 1853, which authorized the Commissioner of the General Land Office to issue to the company certificates to the amount of eight sections of land for each mile of ■'road that should be completed and put in good running order,—under certain restrictions not necessary to mention. (Special Laws 1853, p. 3.) On the 30th day of January, 1854, a general statute was approved by the Governor, which granted to all railroad companies, which had theretofore constructed or which should thereafter construct, twenty-five miles of railroad, certificates to the amount of sixteen sections of land for each mile of road. (Laws 1853-4, p. 11.) This act also contained conditions and restrictions which we need not detail in this connection. The same Legislture passed two special acts, one amendatory of the charter of the Buffalo Bayou, Brazos & Colorado Bailroad Company, and the other supplemental thereto, the first of which provided: “That the ‘Buffalo Bayou, Brazos & Colorado Bailroad Company’ shall be entitled to all the rights, privileges and benefits accruing from any general law or laws that have or may hereafter be passed by this State to encourage the constructing of railroads, in the same manner and to the same extent as if the guage of said road was the same now fixed or which may be hereafter fixed upon by this State.” • By the second it was provided: “That if the Buffalo Bayou, Brazos & Colorado Bail- road Company shall avail themselves of the act to which this is a supplement, or accept any donation of land from the State, they shall not be entitled to receive any such donation from the State under the provisions of this law, or any law that has heretofore been passed for their benefit, for any portion of their road which shall not be completed and ready for use within ten years from and after the passage of this act. Provided, that said company shall restrict themselves to the following route, viz., to an extension of their existing road to Austin, in the County of Travis, crossing the Brazos River at any point between the town of Richmond, in Fort Bend County, and Hidalgo Falls, in Washington County, and with the right of extending their road from Austin to connect with any road running north of Austin towards the Pacific Ocean. Provided, such connections be made between the ninety-sixth and ninety-eighth parallels of longitude; and provided further, that said company shall have no right to build branches from their main road.”

Both these acts were approved February 4, 1854. Whether or not the company ever accepted the benefits of these acts, the meagre statement of the Court of Civil Appeals does not advise us; but since the act of July 27, 1870, which changed the name of the company to its present name, under certain conditions authorizes an. issue of certificates to the amount of sixteen sections per mile for such portions of the road as had been constructed before the war, but not within the time provided by the act of January 30,1854, we infer that it did so accept.

During the period of the Civil War two laws were passed which had the effect to relieve the existing railroad companies from the limitations as to time embraced in the act of 1854, until two years after the close of the war; and on the 13th of November, 1866, an act was approved, which contained the following section: “Be it enacted by the Legislature of the State of Texas, that the grant of sixteen sections of land to the mile, to railroad companies heretofore or hereafter constructing railroads in Texas, shall be extended, under the same restrictions and limitations heretofore provided by law, for ten years after the passage of this act.”

The special act of July 27, 1870, recognized the present company as the purchaser of the franchises, rights and property of the original company, which had been “sold out,” and as its successor, and changed the name to that of the Galveston, Harrisburgh & San Antonio Railway Company, and amended its charter in important particulars. We quote so much of that law as is deemed necessary for the purposes of this opinion: “Whereas, on the seventh July, 1868, {the road-bed, track, franchise and chartered rights and privileges’ of the Buffalo Bayou, Brazos & Colorado Railway Company were sold on executions issued on judgments against said company; and on the 24th January, 1870, the railroad of said company from Harrisburg to Alleyton, and its franchise, rights and other property appertaining thereto, were sold under the provisions of a mortgage or deed of trust made by said company on the first November, 1860, all of which appears of record; and

“Whereas, the Act of December 19, 1857, ‘supplementary to and amendatory of an act to regulate railroad companies’, provides that the purchasers at such sales and their associates ‘shall be entitled to have and exercise all the powers, privileges, and franchises granted to’ the company sold out ‘by its charter, or by virtue of the general laws of this State,’ and ‘shall be deemed and taken to be the true owners of said charter and corporators under the same, and vested with all the powers, rights, privileges and benefits thereof;’ and

“Whereas, the purchasers at said sales, and their associates, have formed a new company under said old name, and have expended large sums of money in the reconstruction of said railroad, in the purchase and completion of the Columbus Tap Railroad, and the bridge of the Brazos Iron Bridge Company over the Brazos River at Richmond, and Whereas, said new company desires to be distinguished by name from said ‘sold out’ company, to consolidate its property, and to extend said line of railroad; therefore,

“Section 1. Be it enacted by the Legislature of the State of Texas, that the new company heretofore known as the Buffalo Bayou, Brazos & Colorado Railway Company, referred to in the preamble of this act, shall be hereafter known by the corporate name of ‘The Galveston, Harrisburg & San Antonio Railway Company,’ and may alter its seal to conform to its name; provided, that said new company shall be liable to the State of Texas for the debt of said ‘sold out’ company, for loans made to the latter company from the special school fund, in the same manner and to the same extent as said ‘sold out’ company was liable; and that said change of name shall in no respect impair or affect said liability, or the existing hen or mortgage of the State upon the railroad of said company as security for said loans.”

But the Constitution which was in force at the time the last named act was passed contained this provision: “The Legislature shall not hereafter grant lands to any person or persons, nor shall any certificates for land be sold at the Land Office, except to actual settlers upon the same, and in lots not exceeding one hundred and sixty acres.” (Cons. 1869, art. 10, sec. 6.)

In so far as the determintion of the question under consideration is concerned, we think it may be conceded for the purposes of the argument, that the company acquired a right to, sixteen sections of land per mile of constructed railroad, under the general law of 1854, and the special acts above recited amendatory of its charter; and that this right was preserved by the general law of 1866. It may also be conceded for the same purpose, that section 6 of article 10 of the Constitution of 1869 was intended to have purely a prospective effect, and did not operate to repeal either the law of 1854 or that of 1866, as to railroad companies then in existence. For if it should be held, that the privileges extended by the previous laws to existing companies was not affected by the section, the question arises, whether after that Constitution took effect an act of the Legislature which authorized the company to change its for mer route and to constitute a different line of road would carry with it the right to acquire land by the construction of.the new line? It must be borne in mind, that when the Constitution of 1869 was adopted no general law was in force for the incorporation of railroad companies. The charters of all the other existing companies had been granted by special acts of the Legislature, all of which defined with some degree of certainty the line of the road to be constructed. We construe the general law of January 30, 1854, as applying only to companies then chartered. (See Quinlan v. H. & T. C. Ry. Co., this day decided.) It is clear that it was intended to grant lands to the companies for the construction of railroads which their charters authorized them to build. It may be conceded, that so long as the general law which granted the privileges of acquiring lands remained in force and so long as no constitutional inhibition stood in the way, legislative authority to a company to change the line to be constructed should be construed to carry with it the privilege of earning lands for the construction of the new line. At all events, it is clear, we think, that the act of February 4, 1854, supplemental to the act of the same date which extended the privileges of the general law of January 30, 1854, to the company, restricted those privileges to the line to Austin and to the extension of that line. The proviso, “that said company shall restrict themselves to the following route, viz.: to an extension of their existing road to Austin,” etc., admits of no other construction. The purpose and effect of the first section of the act of November 13, 1866, yzas merely to give to the companies to which it applied, ten years from the date of the act, within which to comply with the terms of their charters and the general laws with respect to land grants. Let us admit then for the purposes of the argument, that in 1870, when the name of the company was changed, and when it was granted authority to alter the line to be constructed, that it had the right to acquire lands by the construction of its line as fixed by the supplemental act of February 4, 1854, we are still confronted with the question: Did the Legislature have the power, had it so intended, so to authorize a change of its line and at the same time to carry with the change of line the privilege of earning lands for the construction of a different road? Section 6 of article 10 of the Constitution then in force prohibited the Legislature from granting lands thereafter for the construction of a railroad. That it could authorize a change of route there can be no question, but there is a grave question whether or not it could, under the Constitution then existing, transfer a privilege of acquiring lands by the construction of a well defined line of railroad from the route so defined to another not contained in the previous grant. The company, before the passage of the act of 1870, had no right to acquire lands by the building of a railroad to San Antonio; to complete that right, a new grant was requisite; but at that time the Legislature was prohibited in the broadest terms from malting any grant whatever. It matters not that the transaction may be looked upon as being somewhat in the nature of an exchange, and that the building of the new line may have involved a grant of no more, or even of less land, than may have been acquired by the construction of the old line. It involved a grant of land as to the new line and that the Legislature had no right to make. Let us state the proposition in another form. If it were the right of the company, under the existing laws, to acquire lands by doing a specific thing, the Legislature having no power under the Constitution to make any grant of lands, could not confer upon it the right to earn lands by doing another—a different thing.

So far we have discussed the question, as if in passing the act of 1870 the Legislature had intended to transfer the right of the company as to the lands to be acquired, from the old to the new line. But we find nothing in the act which manifests such an intention. On the contrary, the 12th section of the act as above quoted indicates, that it was not the purpose in any manner to extend the existing rights of the company with reference to the acquisition of lands from the State.

It is to be noted that the 3d section of the act of 1870 not only authorized the company to change its route so as to run to San Antonio instead of Austin, but in addition thereto reserved to it the right to build upon the route formerly designated by the sold out company. It is evident, therefore, that to concede to the company the right to earn lands by the construction of the new line involves a new and additional grant— a grant which the Legislature, under the Constitution of 1869, could have made neither expressly nor by implication.

This question was before this court at a former term in a suit between the same parties and the point was there resolved as we resolve it now. (Railway v. State, 81 Texas, 572.) But it is urgently insisted, that the question was not involved in that ease. Without conceding the correctness of this contention, in view of the magnitude of the interests involved in the present case, we have gone over the question anew, and without reposing upon the former decision, have arrived at the same result. We are, therefore, of the opinion that the Galveston, Harrisburg & San Antonio Railway Company did n,ot by virtue of the act of July 27, 1870, acquire the right to earn lands by the construction of its line to San Antonio.

3. Referring to the third question certified by the Court of Civil Appeals, we are of the opinion that it is no defense to an action of the State for the recovery of the lands involved in this suit, that the company may have been entitled to certificates for the 163 miles of additional road, constructed under the law of 1876. It acquired no title either legal or equitable to the lands in controversy by causing them to be surveyed and patented under the certificates granted for the San Antonio extension. To make its right to lands earned by the additional construction effectual for any purpose, it must have procured its certificates and located them upon some portion of the public domain not reserved from the location of such certificates. Our complicated and ever varying laws in regard to the appropriation of the public domain have probably given rise to more questions affecting the location of lands than have ever arisen in any other jurisdiction; and yet we know of no case in this court in which it has ever been ruled that the claimant of land against the State under a location made by virtue of a void certificate has any equity in the premises by reason of being the possessor of another valid certificate.

4. The third question not having been answered in the affirmative, the fourth does not arise.