State v. International & G. N. R. R.

57 Tex. 534, 1882 Tex. LEXIS 178

• Court: Texas Supreme Court
• Decided: June 2, 1882
• Docket: Case No. 4546
• Status: Published

Opinion

Bonner, Associate Justice.

The questions of law in this case lie within a very narrow compass, and arise upon the construction of certain acts of the legislature which relate to the International, now consolidated with the Houston & ■ Great northern Railroad Company, under the name International & Great Northern Railroad Company.

The labors of the court have been very much lessened by the clear and comprehensive findings of the learned judge who tried the cause below, and the full and exhaustive briefs of the able counsel for both parties. As deduced from -the briefs and argument of counsel, the two principal questions presented for our decision are:

First. Whether the act for the relief of the consolidated International & Great Northern Railroad Company, approved March 10, 1875 (2d sess. 14th Leg., 69), ivas so far inconsistent with the original act incorporating the International Railroad Company, passed August 5, 1870 (called session, 12th Leg., 104), as to operate as a repeal of the same to the extent that it prescribes a new and different condition as ground for declaration of forfeiture.

Second. If so, then what was the effect of a failure, under section 4 of the act last passed, to build forty miles of road each year, or eighty miles every two years % Did it forfeit the charter of the company, or simply the land grant ? And if the latter, then was it forfeited for that portion only of said v road which it thus failed to construct, or for the whole extent of the road not then completed ?

I. As to the repeal of the original act by the subsequent relief or compromise act, as it is generally called.

This last named act provides, in express terms, that it repeals so much of the original act as is inconsistent with it.

Section 13 of the original charter is as follows: “ Said company shall commence work upon its railroad within six months after the passage of this act, and shall complete at least fifty (50) miles of said main trunk within eighteen months after the passage of this act, and annually thereafter seventy-five miles, or one hundred and fifty miles every two years, on all said lines east of San Antonio, and west of that point to the Rio Grande river forty miles annually, or shall complete the same 'within four years after reaching said city of San Antonio from the east. The railroad of said company shall be thoroughly and substantially built, and fully equal to the standard of first class railroads in the United States. Its iron rails shall be of weight not less than fifty pounds to the lineal yard, of approved pattern and good quality. It shall provide a good and sufficient amount of rolling stock for the prompt and efficient operation of its road, and shall establish depots and stations at such places as shall be conducive to the interests of the people and to the proper transaction of the business of the company.”

Section 4 of the relief act reads: “That if said company shall fail to complete the construction of said railroad from the city of Jefferson to the terminus of said railroad on the Bio Grande at the rate of at least forty miles each year, or of eighty miles every two years, counting from the 1st day of July, 1875, they shall forfeit all right to the lands by this act granted upon that portion of said road which they fail thus to construct.”

. Section 15 of the original charter is as follows: “ Any failure on the part of said company tos complete its railroad within the time as stated in this charter, shall work a forfeiture of all further rights and privileges under the same, provided that such failure on the part of said company be not caused by domestic violence, epidemics, floods, or other acts of God. In case the company chartered in this act shall at any time fail to construct the length of railroad as hereinbefore specified, then the governor is authorized to contract with any other corporation or company for the continued construction thereof, under the terms of this charter, for such part of said railroad as may not have been completed.”

The authorities are numerous that constructive repeals, or repeals by implication, are not to be favored; but even in such cases it is the general rule, that a subsequent statute, which as to a certain subject matter of a previous one creates a new, entire and independent system respecting this subject matter, will be held to repeal by implication, without express words to that effect, so much of the prior statute as is inconsistent therewith. Stirman v. The State, 21 Tex., 736, and authorities cited.

But when, as in the present case, express words of repeal, so far as the two statutes are inconsistent, are contained in the subsequent statute, then there is no room for construction, save as to the qioestion of conflict; and in so far as the two statutes do materially conflict, the latter must prevail.

The inconsistencies between the two acts are shown in the findings of the court below. Also by the brief of counsel for appellee, as follows:

1. In the western terminus of the road. •

The charter, section 2, requires the company to build “to. the Bio Grande at some point' at or near Laredo, as the company may select as affording the best facilities for a continuation of the road to the city of Mexico, and thence to the Pacific Ocean at or near San Bias or Mazatlan.”

The relief act required the western terminus to be fixed within one mile of the court-house at Laredo.

2. In the line of location.

The charter required the road to be built via the cities of Austin and San Antonio only. Sec. 2.

The relief, or compromise act, required it to build also by the towns of San Marcos and New Braunfels, and a depot to be maintained within a mile and a quarter of the court-house of each of said towns.

3. In the time for completion.

The charter required seventy-five miles- each year, or one hundred and fifty miles every two years, to be completed after the first eighteen months from date of the charter, to San Antonio; and forty miles annually on from San Antonio west, or to complete it between San Antonio and Laredo within four years.

The relief, or compromise act, “ at the rate of at least forty miles each year, or eighty miles every two years,' counting from the 1st of July, 1875.”

4. In the aid offered by the state.

The charter offered “ the bonds of the state tó the amount of §10,000 per mile of completed road,” to be delivered on completion of each ten miles.

The relief, or compromise act, gave in lieu of said bonds twenty sections of land, or four sections more than the company would have been entitled to under the general law of the state if no other donation had been made; and also offered total exemption from taxation on the International road and its property for twenty-five years, instead of five years as provided in the charter.

5. In the character of the road to be built.

The charter required it to be thoroughly and substantially built, and “ fully equal to the standard of first class roads in the United States.” The compromise act required it to be built “ in a substantial manner and in accordance with the requirements of general railroad law of the state.”

6. In the penalty for failu/re in the time of building, the charter provided that a “ failure to complete the road within the time therein stated should forfeit all further rights and privileges under the charter.”

It further provides: Section 15. “ In case the company chartered in this act shall at any time fail to construct the length of railroad as hereinbefore specified, then the governor is authorized to contract with any other corporation or company for the continued construction thereof, under the terms of the charter, for such part of said railroad as may not have been completed.”

The amended act contains no authority for construction otherwise than by the company, and takes away the “ terms of the charter,” which also provides that if the company “fail to complete the construction of said road from the city of Jefferson to its terminus on the Eio Grande, at the rate of at least forty miles each year, or of eighty miles every two years, counting from the 1st of July, 1875, they shall forfeit all right to the lands by this act granted, upon that portion of said railroad which they thus fail to construct.”

It is a well known fact that this relief act was one of compromise. This is fully indicated by the preamble, which reads:

“ Wiiebeas, On the 5th day of August, A. D. 1870, the legislature of the state of Texas passed an act, entitled ‘An act to incorporate the International Railroad Company, and to provide for the aid of the state of Texas in constructing the same; ’ and,

“Wiiebeas, By the 9th section of said act, it is claimed the state of Texas obligated itself to donate and grant to the said company the bonds of the state of Texas to the extent and amount of ten thousand dollars per mile for each mile of railroad constructed under said charter; and,

“Whereas, The said railroad company has already constructed

about two hundred miles of railroad, in accordance with the provisions of its charter; and,

w i' if # íi if í? vi w *ir

“ Whereas, Questions have arisen between the state of Texas and said company as to the legal liability of the state to deliver said bonds to said company; and,

“Whereas, It is important both to the state and said company that these questions should be definitely settled by a just and reasonable compromise, therefore for that purpose; ” therefore, be it enacted, etc.

The terms and provisions of this act were subsequently accepted by the company. This legislative proceeding and its acceptance therefore partake more of the nature of a contract between the state and the company than a mere ex parte legislative act; in fact, by section 7 of the act its binding force was made to depend upon this acceptance; in which event, it was declared to be an irrepealable contract between the state and the company. Hence, wherein they may differ, the rules which govern the construction of contracts should apply, rather than those which govern the construction of statutes. The end to be obtained, however, is the same—to ascertain, if possible, the true intention of the parties. One of these rules is, that acts of compromise, in which mutual concessions are made, should receive a liberal construction.

Under the original act the road was required to be built with much more than ordinary rapidity, and as an essential aid to this, the state had obligated to issue bonds to the amount of $10,000- to the mile. These were considered more salable and valuable in the market than the land certificates substituted therefor by the relief act; • otherwise the people would not have demanded nor the legislature have passed the act of substitution. This benefit having been given to the state, the corresponding benefit was given to the company to build a less number of miles within a given period.—it being required to build only forty miles each year, or eighty miles every two years, by the relief act, whereas, by the original act, it was required to build annually seventy-five miles, or one hundred and fifty every two years. It is not reasonable to suppose that the legislature would have arbitrarily deprived the company of very material aid promised in the original act, and that, too, after the company, on the faith of it, had built two hundred miles of its road, and which aid, doubtless, was one of the main inducements to enter upon the construction, and still hold the company to the strict letter of the original contract as to the rapidity with which the road should be built. Neither is it reasonable to suppose that the state intended to say to the company, that you shall have a certain donation oí land, and which shall be paid for every completed section of ten miles, if you will build forty miles of road each year; and yet when the company has done this, then not only to forfeit this promised aid already earned, but also the very corporate existence of the company itself, because it had not built seventy-five instead of forty miles of road. Certainly such double forfeiture could not have been intended; and if only one of the two forfeitures could be demanded, it must be that, contained in the compromise act, .and which in express terms repealed the original so far as they were inconsistent.

The law does not favor forfeitures. The wise policy of Texas has ever been to foster and encourage railroad companies, and it is •not her true policy, any more than that of the law generally, to forfeit their charters for a mere technical failure to comply with ■the letter, when the spirit of these charters have been complied with. Although they should be held to a reasonably strict accountability to carry out faithfully the purposes and objects of their creation, yet, unless it clearly appears that they have forfeited their charters, the courts should give that construction to the law which would keep alive, rather than that which would kill. A learned text-writer deduces from the authorities the following general rule on this subject: “ The non-performance of the conditions of the act of ■incorporation is deemed per se a misuser sufficient to forfeit the grant on proceedings by information, and in determining whether such a departure from the-provisions of the act of incorporation has been made as to w'ork a forfeiture, the same general principles of construction are applicable which govern valuable grants to individuals upon conditions subsequent or precedent.. In all such cases a substantial performance of the conditions according to the intent of the charter is all that is required, and slight departures are overlooked.” High on Ex. Leg. Bern., § 651.

We are of the opinion that section 4 of the compromise act repealed section 13 of the original act, and was substituted therefor, so far as they pertained to the time within which the road should be built. That under the law as it now stands, it was not intended that the failure of the company to build at least forty miles of road every year, or eighty miles every two years, should work a forfeiture of its charter, but of the land grant only. Whether, under section 15 of the original act, the company would not forfeit its charter in the event it should fail to construct its entire line of road within the whole time allowed by the compromise act, is not now before us, and no opinion is intended to be intimated upon this question.

II. The second question is presented by the following cross assignment of errors by appellee:

“ The court erred in adjudging as forfeited the defendant’s right to lands granted under the act of the 10th of March, 1875, on such of its road as was not completed at the time of filing this suit, say from Austin .to Laredo, and from a point north of Longview to Jefferson. Because the proof showed, and the court found, that the time has not yet expired within which the defendant had-the right to build only eighty miles every two years. And that the road is now completed from Austin to Laredo, and the proof did not show that the state. had sustained loss or damage by the failure to construct any part of its road from the 1st of January, 1877, to January, 1880. And because the proof did show that defendant constructed its road from Austin to Laredo, a distance of two hundred and thirty-four miles, between the 1st of January, 1880, and the 15th of December, 1881.”

The proposition contained in this assigned error is by no means free from doubt, and we admit that, after a careful consideration of it, we are not clear that the conclusion reached is the proper one. The statute is ambiguous, and would admit both the construction placed upon it by the court below and that by counsel for appellee. To enter upon a discussion of the question would extend this already too lengthy opinion. In view, however, of the fact that it is but reasonable to presume the legislature intended that the road should be built continuously, so as to give, as soon as practicable, its benefits along the whole line; and the further fact that the court below has adjudged that the failure to build as much as eighty miles of road within any two consecutive years would forfeit the land grant upon all the line of road not then built, and that it does not clearly appear that this judgment is erroneous, we hold that this assigned error is not well taken.

This disposes of the two principal questions in the case, and virtually all the assigned errors, except perhaps the seventh, which is that “ the court erred in its eleventh conclusion of law, in holding that the land grant from Palm Valley to Austin-is within the terms of the law.”

An ordinance to the constitutional convention of 1875 provided that, “ Be it ordained by the people of Texas in convention assembled, that in view of the financial misfortunes now existing, no railroad company chartered or holding grants under this state, which has heretofore organized and commenced work in good faith, shall be considered as having lost any of its rights, privileges or grants prior to the close of the session of the next legislature of this state, by virtue of the lapse of time between now and that time.”

The next succeeding legislature adjourned August 21, 1876.

In this eleventh conclusion of law complained of, the court found:

“The land grant for the twenty-one miles from Palm Talley to Austin is within the terms of the law. The road was built by December 28, 1876, and within one year after July 1, 1876. The law authorized the issuance of certificates upon completion of sections of ten miles. The forfeiture for not completing the forty miles would not destroy the right to the land upon that part upon which the road had been constructed within the terms of the law.”

We are of opinion that, under the law and facts of the case, this finding was correct.

There being no error apparent in the judgment below, the same is affirmed."

Judgment affirmed.

[Opinion delivered June 2, 1882.]

Note.—This case should have appeared with cases decided at the Austin Term, biit the record was mislaid.